Her Majesty the Queen - v. -, 2016 SKPC 34

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2016 SKPC 034 Date: March 4, 2016 Information: 32380746 , 32380745 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - J. M. Appearing: Ms. E. Olayinka Jarikre For the Crown Mr. A.

Hitchcock For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ SENTENCING DECISION M. HINDS , J _____________________________________________________________________________ Introduction:

[ 1 ] This sentencing decision involves a young Aboriginal person, J.M. who has recently been diagnosed with Fetal Alcohol Spectrum Disorder (FASD). [ 2 ] J.M. became a Voluntary Long -Term committal to the Ministry of Social Services when he was a baby. He has been in the care of the Yorkton Tribal Council Child and Family Services as a long - term ward until his 18 th birthday which occurred on January 3, 2016. [ 3 ] J.M. is no stranger to the youth criminal justice system. His involvement with the justice system began in 2014 at age 15. He has been previously sentenced on seven occasions.

He has 26 prior convictions. The sentences J.M. has received for his crimes have progressively become more onerous. He has been incarcerated on four occasions. [ 4 ] J.M. has an extensive history of non-compliance with court orders. He has 17 convictions for failure to comply with undertakings and probation orders. [ 5 ] On January 18, 2016 , J.M. entered guilty pleas to the following indictable offences: Information 32380746

(1) On or about December 3, 2015 at or near Regina, Saskatchewan he did have in his possession property to wit: a firearm the property of Gerald Rushworth of a value not exceeding five thousand dollars knowing it was obtained by the commission of an offence punishable by indictment, contrary to

section 355(

b) of the Criminal Code . Information 32380745

(1) On or about December 3, 2015 at or near Regina, Saskatchewan have in his possession property to wit: a 2012 Ford F-150, the property Gerald Rushworth of a value exceeding five thousand dollars knowing it was obtained by the commission of an offence punishable by indictment, contrary to

section 355(

b) of the Criminal Code .

(2) On or about December 3, 2015 at or near Regina, Saskatchewan have in his possession property to wit: American Currency the property of an unknown person of a value not exceeding five thousand dollars know knowing it was obtained by the commission of an offence punishable by indictment, contrary to

section 355(

b) of the Criminal Code . [ 6 ] On January 18, 2016 J.M. also admitted that on December 3, 2015 he breached the following conditions of his current Community Supervision Order:

(1) That the young person shall report to the Youth Worker forthwith at #200 -1942 Hamilton Street , Regina, Saskatchewan and thereafter as required.

(2) That the young person shall abide by a curfew and remain in his residence between the hours of 11:00 p.m. - 7:00 a.m. daily, unless you have the prior written permission of the Youth Worker or Designate.

(3) That the young person shall enroll in and successfully complete any educational, vocational, and/or recreational programming as directed by the Youth Worker. The Issue: What sentence should be imposed on J.M . ? [ 7 ] A very comprehensive Pre-Sentence Report was prepared by Elizabeth Christoffel on February 5, 2016. The court received a Psychological Assessment on J.M. prepared by Dr. Danielle DeSorcy dated April 30, 2015 and an addendum to that assessment dated January 20, 2016. The Court also received a Developmental Pediatrician Assessment on J.M. prepared by Dr.

Susan Petryk dated February 5, 2016. [ 8 ] Sentencing submissions were made to the Court on February 19, 2016. The Crown sought an order for 6 months secured custody and 3 months community supervision to be followed by one year of probation. Defence counsel took the position that the appropriate sentence is an order for 6 months deferred custody and supervision. [ 9 ] For the reasons which follow I have determined that the appropriate sentence is 30 days secured custody and 15 days community supervision to be followed by 6 months of probation on the Criminal Code offences before the court.

I determined the appropriate sentence on the breaches of the prior community supervision order was to take no further action. Facts: [ 10 ] J. M. is now 18 years of age. He committed the offences before the court when he was 17 years of age. J.M. has never lived with his biological parents. Initially J. M. was placed in the care of P.S., a family member, at birth and resided with her until he was four years of age. In 2002 he was then placed with his grandmother, E.S., for the next 8 years until he was twelve.

Since 2010 J.M. was placed in a number of different group homes over the years including 4 Directions (September 2010 to June 2011), Ranch Ehrlo (July 2011 to September 2011) and Eagles Nest (March to May 2013). J.M. has also spent brief periods of time in a number of different foster homes. Historically, the Yorkton Tribal Council has had difficulties keeping J.M. in a group or foster home as he absconds or situations arise and care givers are no longer willing to care for him. Between January and March 2015 J.M. was residing in Foster Care in Melville and Yorkton.

When J.M. is released into the community arrangements have been made that he will reside at a Street Culture Youth Shelter in Regina for 30 days. Thereafter, he will be referred to Community Living: Services Delivery to address more long term residency solution. The Offences before the Court [ 11 ] On December 3, 2015 a break and enter offence took place at a detached garage in Moose Jaw, Saskatchewan. Several items were stolen including: (1) a Ford F150 truck, (2) a gun (3) a last will and testament and (4) some gold.

In the early morning hours of December 3, 2015 J.M. arrived at his stepsister’s home with the stolen Ford F150 truck. His stepsister called the police. J.M. took off. At 7:30 a.m. police located the stolen F150 truck. Search warrants were obtained for the Ford F150 and the stepsister’s home. A search of the stepsister’s home revealed the stolen gun. J.M. was arrested later that morning at a Money Mart location in Regina. J.M. had $800.00 US dollars and a quantity of marijuana on him. J.M. ’s Criminal Record [ 12 ] J.M.’s criminal offence history is set out in appendix “A”.

As previously mentioned, J.M. has 26 prior convictions. He has been incarcerated on four occasions. On June 10, 2014 he was sentenced to 30 days open custody and 15 days community supervision for four assaults with a weapon (knife) . On April 23, 2015 he was sentenced to 80 days open custody and 40 days of Community Supervision for carrying a concealed weapon and four breaches of a youth sentence. On June 2, 2015 he was sentenced to serve 40 days

open custody and 20 days of Community Supervision for escape lawful custody. His most recent convictions was for escape lawful custody, contrary to section 145(1) (

a) of the Criminal Code . On July 27, 2015 he received a sentence of 30 days secure custody, followed by 15 days Community Supervision. His current Community Supervision Order began on November 8, 2015 and was to continue until January 21, 2016. [ 13 ] J.M. has not done well while on court orders. In the past two years he has accumulated 17 convictions for breaching court orders.

These breaches are in relation to failing to attend court, failing to keep the peace and be of good behaviour, failing to maintain a curfew, failing to abstain from drugs and alcohol and failing to maintain a residence. [ 14 ] The Pre-Sentence Report (PSR) is very detailed. Amongst other things the PSR states as follows: 1. Level of Service Inventory - SK Youth Edition (LSI-SK) J.M.’s overall score on the LSI- SK was determined to be within the Level five risk category. The research referenced in the above Methodology

Section indicates youth who scored within this level re-offend 75% within the time frames of the study. . . . The major risk concerns for J.M. were identified as follows: criminal history, education/employment, family circumstances and parenting, leisure/recreation, companions, pro-social attitude/orientation, substance use/abuse, and antisocial pattern. There were no strength areas identified. 2. Education/Employment J.M. is frequently not in school or is unemployed. J.M.’s last completed grade is grade 8. 3.

Family Circumstances and Parenting J.M. openly expressed dissatisfaction in his relationship with his biological parents. He has been in the care of Yorkton Tribal Council since birth and is a long term ward. He has had minimal contact with his biological mother and father for the last couple of years and sporadic contact throughout his life. J.M. does not receive pro-social support from his biological parents and does not receive adequate support from relatives or significant others. 4.

Leisure/ Recreation In the last 12 months J.M. has only been in the community for 66 days and the opportunity to be involved in an organized activity has been minimal. While in Open Custody at the Paul Dojack Youth Centre he participated in activities offered to him. He also showed a willingness to work with Red Feather programming while on Community Supervision. His Community Youth Worker, Ms. Pam Schmidt indicates that J.M. does not generally spend

his free time effectively in the community. He struggles having unoccupied or unstructured time in the community and spends most of that time associating with gang affiliate peers and using substances. 5. Companions J.M. has some delinquent acquaintances and friends. A number of his acquaintances and friends have criminal records and are involved in criminal activity. Though J.M. does not want to live the kind of life that his friends live, his actions display otherwise.

J.M. has identified he is often a follower, which causes him to be influenced by his friend’s actions with regards to his current offence and those prior. J.M. has minimal pro-social friends. Ms. Schmidt advises that due to J.M. being in the care of the Ministry of Social Services for his whole life, he has not had the opportunity to make long standing friendships due to residing in many foster homes and attending many different schools. 6. Pro-criminal Attitude-Orientation J.M. presents as having an attitude orientation towards crime. Ms.

Schmidt advises J.M. has a tendency to cut corners and overlook rules to obtain his goals. She indicates that J.M. knows the difference between right and wrong, but when in a situation where he has to choose, he often is influenced by others which has led to him committing crime and getting into trouble. Ms. Schmidt reports that J.M. has difficulties at times understanding the full weight of the consequences to his actions, which has contributed to his attitude - orientation towards crime. J.M. presents as having a poor attitude toward supervision-treatment. According to Ms.

Schmidt, J.M. struggles to meaningfully address his risk areas while in the community. Ms. Schmidt advises J.M. has backed out of attending treatment for substance abuse on multiple occasions and struggles at times to identify addictions as an issue. Further, J.M. has presented as having weak motivation towards disassociating from criminal peers whom he has acknowledged contribute to his offending. 7. Substance Use - Abuse J.M. has problems with using alcohol. J.M. began using alcohol at the age of 12. Overall his use of alcohol has increased over the years.

Over that past few years his use of alcohol has become more frequent. J.M. is aware that he struggles with his use of alcohol and he recognizes that his use of alcohol is having a significant negative impact on his life. He has recently blacked out on one occasion and passed out on another occasion. J.M. has seen an Addictions Counsellor in the last year, however, despite the efforts made by the Addiction Counsellor and his Community Youth Worker (Ms. Schmidt) for him to attend treatment, he has not followed through. J.M. has problems with using drugs.

J.M. began his use of drugs when he was 11 years old and it appears his use has increased over time and contributed to problems in multiple domains of his life. His drug of choice appears to be marijuana. His use of marijuana has contributed to law violations in the last year. He admits that he was high upon his most recent arrest and while he was committing the current offences that were before the court. His use of marijuana has also negatively effected where he lives and has caused attendance problems when he is enrolled in school.

A drug and alcohol assessment was completed on J.M. in April 2015 and indicates a High Probability of Substance Dependency Disorder.

8. Antisocial Pattern J.M. displays indicators of antisocial pattern. He has displayed violent and aggressive behaviours in the community and in the different group homes he has lived in. In 2011 J.M.’s clinical case worker at Eagles Nest and Ranch Ehrlo reported that he appeared to be a youth who is lacking in internal control and is highly impulsive, having little patience for gradual progress. He presents as having anger management deficits. 9. Additional Concerns/Issues: J.M. has problems complying with Court Ordered Conditions.

As previously mentioned, in the past two years he has accumulated 17 convictions for breaching court orders. He also has 3 convictions for Escape Lawful Custody. There is also a concern that some of his former friends may be “after him” as a result of him providing information to the police regarding the present offences. J.M. appears to have problem-solving and self-management skill deficits. His Community Youth Worker, Ms. Schmidt reports that J.M. often relies on the workers in his life to assist him in problem solving day to day occurrences.

J.M. experiences difficulties staying attached to school or pro-social conventions. J.M. reports spending time with peers outside his age range. He indicates his peers range from ages 13 - 30 and are criminally involved, thus weakening his ties to pro-social peers. J.M. has financial problems. He turned 18 years of age on January 3, 2016 and as such no longer receives services from the Ministry of Social Services. He can apply for financial services through a program with the Ministry of Social Services called

Section 56. However, a requirement of the

Section 56 program is that the individual is enrolled in and attending school. J.M. is not enrolled in school and it appears he does not enjoy being in school. J.M. has also been struggling with homelessness and transiency. He does not currently have any placement in the community to reside. 10. Gladue Ruling J.M. identifies as a First Nations individual. He reports his identity as a First Nations individual is important to him as it is “who he is”. J.M. reports he has been affected by racism on account of being First Nations, but reports this only occurs when he is in a city context. J.M. reports he

prefers to be in the city though, as he has more opportunities for himself rather than being on the First Nation. J.M. reports both of his parents attended Residential Schools, and he believes as a result of how they were treated , their parenting skills were affected and his life was greatly impacted. J.M. indicates he was taken into care as a result of substance abuse in the home, and reports this stems back to his parents’ experiences in residential schools. Dr. Danielle DeSorcy ’s Psychological Assessment dated April 30, 2015 and addendum dated January 20, 2016. [ 15 ] Dr.

Danielle DeSorcy’s psychological assessment of J.M. is very helpful. In her addendum dated January 20, 2016 Dr. DeSorcy states as follows: The results of the previous cognitive assessment placed J.M.’s FSIQ at the 0.2nd percentile. This, combined with Ms. Bitman’s conclusion of moderately impaired adaptive skills, allow a formal DSM -5 diagnosis of Intellectual Disability to be made. Also known as Intellectual Development Disorder, the essential feature of this disorder is significantly impaired sub-average intellectual functioning (i.e.

IQ in the extremely low range) accompanied by significant limitations in adaptive functioning in the areas of communication, self-care, home-living, academic skills and personal safety. For most individuals with this level of functioning there are difficulties in learning academic skills such as reading, writing, arithmetic, time, or money, with support needed in one or more areas to meet age-related expectations. Communication, conversation, and language are more concrete or immature than expected for age, and often, these individuals are at risk of being manipulated by others.

There may also be difficulties regulating emotion and behaviours in an age-appropriate fashion. Although they tend to function at an age-appropriate level regarding personal care and hygiene, they may require ongoing support with complex daily living tasks in comparison to peers. DSM -V Diagnosis : F71 Mild Intellectual Disability As an individual with Intellectual Disability, J.M. will benefit from a modified curriculum in school and teaching procedures, if he decides to continue with education.

A program that focuses on skill building, that can provide more explicit examples through concrete experiences, and that allows for more active participation in “hands on” experiences would be beneficial. An emphasis on job skills and readiness would likely serve J.M. well at this stage of his life. Dr. Susan Petric ’s Medical Assessment dated February 3, 2016. [ 16 ] Dr. Susan Petryk’s Developmental Pediatrician assessment of J.M. is also very helpful. Dr.

Petryk’s assessment dated February 3, 2016 states as follows: This assessment found that J.M.’s developmental profile does meet DPN criteria for a fetal alcohol spectrum disorder (FASD). Indeed, J.M. has a brain 4 rating, which means he has a definite brain impairment. A FASD diagnosis means there is evidence of significant central nervous system dysfunction/injury occurring in the patient’s exposure to alcohol ingestion. However, this does not mean that alcohol is the only cause of the patient’s problems.

A number of other factors could be contributing to the present issues such as J.M.’s genetic background, other potential exposures or problems during pregnancy and various experiences since birth (e.g. concussion following a motor vehicle accident, substance abuse from a young age, and ongoing struggles with addictions. . . . Co-existing behaviour issues are common (outlined below). It is extremely important that behaviour is viewed as a result of brain impairment.

Behaviour management and adult supports and services, as well as his sentencing and rehabilitation will be heavily impacted by his diagnosis and these must be adjusted to take into consideration his static encephalopathy. J.M. has had significant adversity in his life. He has been in trouble with the law many times. Without adequate support the pattern of

J.M. has had significant adversity in his life. He has been in trouble with the law many times. Without adequate support the pattern of difficulties J.M. has been in is likely to continue. One of the most important factors for success for J.M. in our opinion is having a caseworker who can help him navigate the complicated system of supports and services, all which require explanation, coordination, and paper work filled out. J.M. is an extremely vulnerable individual due to his brain impairments and is very prone to be taken advantage of.

He is unlikely to benefit much from insight-orientated and self-motivated counseling and cognitive therapies. However, individuals with static encephalopathy can thrive with external supports and structure. . . . He understandably has some anxiety about the court appearance next week and the uncertainties of his future. Before this J.M. has had a long-standing tendency to anxiousness and may have had episodes of panic attacks and incapacitating anxiety. Sleep is also disturbed by worry and anxiousness. I would suggest monitoring his symptoms and using non-medical strategies to cope with worries and anxieties.

With sufficient support this may also help to lower his anxiousness. If despite non- medical strategies being optimized, J.M. has a high level of anxiety that is interfering with his day-to-day functioning. I offered to see him again for a review to consider whether medication may be warranted. J.M. is at high risk of seeking out alcohol and drugs to self-medicate for anxiety. Ongoing addictions counselling is suggested, however, counselling must be informed by his diagnosis and consider his capacities and limitations.

Summary of Dr. Petryk ’s Neurodevelopmental Diagnosis/Findings: 1. Fetal Alcohol Spectrum Disorder , according to the DPN criteria, he has Static Encephalopathy: Alcohol Exposed, DPN code 1143. He has Brain level 4 function which means definite brain impairment/ damage. 2. Mild Intellectual Disability 3. Substance use disorder - mild to moderate. 4. Possible anxiety disorder with panic attacks in need of on going monitoring. May be situationally exacerbated by recent events. 5. Involvement in criminal activity has been heavily impacted by the above diagnosis and his inherent vulnerability . 6.

Postnatal factors: Severe instability with multiple home placements, apprehension from first foster home, motor vehicle accident with concussion, and chronic substance abuse. These factors may exacerbate his brain impairments, but should not be viewed as the major cause. 7. Primary care status unavailable today. 8. Growth Parameters: Wi = 81.8 kg (86 th percentile), H = 171.6 cm (26 th percentile), HC = 56.5 cm, BMI =27.8 (93 rd percentile, overweight range however J.M. is quite muscular).

Lip Score =1, Philtrum Score = 2-3, palpebral fissures = 28 to 29 bilaterally (mean to -1 S.D.), BP 144/75 (manual cuff), pulse = 72. No significant findings on general physical

and neurologic exam, as well as dysmorphology review. Some of Dr. Petryk ’s Recommendations: 1. J.M. must have a caseworker to help ensure the information from this assessment gets to the appropriate agencies. He will not be able to navigate the system of supports and services without a case manager. . . . 6. In youth with FASD it is extremely important to recognize that brain impairment underlies behaviour and to avoid mislabeling behaviours as preplanned, intentional, defiant, or manipulative . Support, coaching, supervision and skill building are far more important and more effective than punishment. . . . 8.

J.M. is at high risk for secondary disability. Secondary disabilities are co-morbid psychiatric or social consequences of insufficiently supported FASD. J.M. lacks the two most important mitigating factors protective against secondary disability which includes an early diagnosis and stable single home placement for several years. Ongoing vigilance for the development of other mental health issues (e.g. depression, anxiety, etc) will be important lifelong. The Youth Criminal Justice Act : [ 17 ] In determining J.M..’s sentence I have carefully considered the

preamble, declaration of principle, sections 38 , 39 and 42 the Youth Criminal Justice Act , S.C. 2002, c.1 (hereinafter referred to as the “ YCJA ” ). [ 18 ]

Section 3 of the YCJA sets out a declaration of principle. Section 3(1) (a)(ii) declares that the youth justice system is intended to rehabilitate and reint egrate young persons into society. Section 3(1) (a)(iii) declares that the youth justice system is intended to ensure that a young person is subject to meaningful consequences for his or her offence. Section 3(1) (

b) establishes a justice system separate from that of adults. Sections 3(1) (b)(

i) and (ii) provide that this separate system must emphasize rehabilitation and reintegration as well as fair and proportionate accountability which is consistent with greater dependency and reduced maturity. Section 3(1) (b)(iv) emphasizes timely intervention that reinforces the link between the offending behaviour and its consequences. Section 3(1) (b)(

v) emphasizes the importance of YCJA proceedings occurring in a timely manner, given young persons’ perception of time. Section 3(1) (

c) states that 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 to victims and the community, and (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. [ 19 ] Section 38(1) of the YCJA sets out the purpose applicable to sentencing:

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. [ 20 ] Sections 38(2) and (3) of the YCJA provide that consideration be given to the following principles when imposing a youth sentence: 38(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 convicted of the same offence committed in similar circumstances. (

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

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

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of Aboriginal young persons; 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 acknowledgment of the harm done to 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. 38(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. [ 21 ]

Section 39 of the YCJA limits the use of custody and supervision orders. It reinforces the importance of reasonable alternatives to custody and supervision orders.

Section 39 provides: 39(1) A youth court justice shall not commit a young person to custody under

section 42 (youth sentences) unless:

(

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

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

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

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

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

section 38. 39(2) If any of paragraphs (1)(

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youth sentences) unless the court considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in

section 38 . 39(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to: (

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances. [ 22 ] Subsection 42(2) of the YCJA sets out a wide variety of sanctions that can be imposed on sentencing a young person. Probation, custody and supervision and deferred custody and supervision sentences are provided for in ss. 42(2)(k), (

n) and (

p) of the YCJA : 42(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 ... (

k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified time not exceeding two years; (

n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period - which is one half as long as the first - be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order; (

p) subject to subsection (5), make a deferred custody and supervision order that is for a specified period not exceeding six months, subject to the conditions set out in subsection 105(2), and to any conditions set out in subsection 105(3) that the court considers appropriate; [ 23 ] Subsection 42(5) of the YCJA precludes the imposition of a deferred custody and supervision order if the young person is found guilty of an offence in which the young person causes or attempts to cause serious bodily harm: 42(5) The court may make a deferred custody and supervision order under paragraph (2)(

p) if: (

a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm; and (

b) it is consistent with the purpose and principles set out in

section 38 and the restrictions on custody set out in

section 39.

[ 24 ] A central concept in the sentencing of young people is accountability. The purpose of youth sentencing, as per section 38(1) 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 r ehabilitation and reintegration into society, thereby contributing to the long-term protection of the public ” . [ 25 ] Thus, I must ensure that the sanctions imposed on sentencing have meaningful consequences for J.M.

In addition, I must consider whether those sanctions promote J.M.’s rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. Analysis : J.M. ’s Age, Background and Personal Circumstances: [ 26 ] At the time of the offences before the court, J.M. was 17 years of age. One month later on January 3, 2016, J.M. turned 18. He comes from a disadvantaged background. He has experienced significant turmoil and instability in his life. J.M. has been in the care of Yorkton Tribal Council since birth and is a long term ward.

He has had little contact with his biological mother and father. He does not receive pro-social support from his biological parents and does not receive adequate support from relatives or significant others. J.M. has had a variety of placements in foster and group homes as a teenager. Over the past several years, J.M. has taken to “running” from his placements and has lived a very transient life that included on going substance abuse. He has not attended school regularly for some time. [ 27 ] J.M. has an Intellectual Disability which is also known as an Intellectual Developmental Disorder. Dr.

DeSorcy reports that the essential feature of this disorder is significantly sub average intellectual functioning (i.e., I.Q. in the extremely low range) accompanied by significant limitations in adaptive functioning in areas of communication, self-care, home-living, academic skills and personal safety. Not surprisingly, J.M. has not excelled in school. [ 28 ] J.M. also has Fetal Alcohol Spectrum Disorder and Brain 4 level function, which means definite brain impairment/damage.

In addition he has a substance abuse disorder and possible anxiety disorder with panic attacks. [ 29 ] The work and diagnosis provided by Dr. DeSorcy and Dr. Petryk greatly assist the Court in understanding J.M. For example Dr. DeSorcy in her Addendum to the April 20, 2015 Psychological Assessment writes as follows: For most individuals with this level of functioning there are difficulties in learning academic skills such as reading, writing, arithmetic, time, or money, with support needed in one or more areas to meet age-related expectations.

Communication, conversation, and language are more concrete or immature than expected for age, and often, these individuals are at risk of being manipulated by others. There may also be difficulties regulating emotion and behaviours in an age-appropriate fashion . [ 30 ] Dr. Petryk’s recommendation 6 clearly points out how the behaviour of a person with FASD can be misunderstood: 6. In youth with FASD it is extremely important to recognize that brain impairment underlies behaviour and to avoid mislabeling behaviours as preplanned, intentional, defiant, or manipulative.

Support, coaching, supervision and skill building are far more important and more effective than punishment. [ 31 ] Without the benefit of the reports of Dr. DeSorcy and Dr. Petryk, one could easily conclude that J.M. has intentionally embarked upon a criminal way of life and is defiant of court orders. However, it is clear that J.M. has a brain impairment/damage. He has an extremely low I.Q. He appears to be impulsive and immature. He is also extremely vulnerable and is very prone to being taken advantage of. Dr.

Petryk found that J.M.’s involvement in criminal activity has been heavily impacted by his diagnosis and his inherent vulnerability.

[ 32 ] Dr. Petryk also was of the opinion that J.M. is at high risk of seeking out alcohol and drugs to self-medicate for anxiety. Seriousness of the Offences - s. 38(2) (c) : [ 33 ] The offences before the court are moderately serious. It is troubling that J.M. was in possession of a stolen gun. The degree of responsibility of J.M. for the offences - s. 38(2) (

c) The degree of participation by J.M. in the commission of the offences - s. 38(3) (a) : [ 34 ] It appears the J.M. is not solely responsible for the offences before this Court. The facts reveal that someone else was responsible for the theft from the garage in Moose Jaw. It appears that after being arrested by the police J.M. implicated a person involved in a break and enter offence. It appears this person may be part of a gang and is desirous of getting even with J.M. What, if any, influence this person had over J.M. is not known.

The harm done to victims and whether it was intentional or reasonably foreseeable - s. 38(3)(b ): [ 35 ] Victim impact statements were not provided to the Court in this case. If I were dealing with a young person without a brain impairment I would not have great difficulty concluding that the harm done to Mr. Rushworth and unknown persons by depriving them of their property would have intentional or at the least been reasonably foreseeable. However, in this case J.M. has brain impairment/damage. He has an extremely low I.Q. As a result I do not find that J.M. intentionally or reasonably foresee the harm to Mr.

Rushworth and unknown persons. Any reparation made by J.M. to the victim or the community - s. 38(3) (c): [ 36 ] No, reparations have been made by J.M. to the victims or the community. It appears, however, that most of the stolen property has been recovered. The time spent in detention by J.M. as a result of the offence - s. 38(3) (d): [ 37 ] J.M. has spent a total of 61 days in detention. Any previous findings of guilt of J.M. - s. 38(3) (e) : [ 38 ] J.M.’s criminal record is set out in Appendix “A”.

Other aggravating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this

section - s. 38(3) (f) : [ 39 ] There do not appear to be other aggravating circumstances in this case.

Other mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this

section - s. 38(3) (f) : [ 40 ] To his credit J.M. entered guilty pleas to the offences at an early stage avoiding the necessity of a trial and the need for witnesses to testify. Sentence: [ 41 ] J.M.’s criminal record reveals that he has failed to comply with non-custodial sentences. As a result I may impose a custodial sanction. While a custody and supervision order may be made, pursuant to section 39(2), I must first consider all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances.

I must also impose the least restrictive sentence capable of achieving the purpose of sentencing set out in section 38(1) . In doing so, I must consider whether the deferred custody sentence proposed by counsel for the defence provides a reasonable alternative to custody. [ 42 ] In my opinion, a custodial sentence is required in this case in order to properly reflect the purposes of sentencing and hold J.M. accountable for the offences he has committed. [ 43 ] In this case I am not persuaded that a deferred custody and supervision order is appropriate.

A deferred custody order would be appropriate if J.M. had a stable, long term residence to go to. Unfortunately this is not the case. Currently, the plan upon release is to place J.M. in a Street Culture Youth Shelter for approximately 30 days. Thereafter the hope is to find suitable longer term housing for J.M.

Being mindful of J.M. ’ s 17 prior convictions for breaching court orders, there appears to be a strong likelihood that J.M. will be unable to comply with the several conditions that usually accompany a deferred custody and supervision order. [ 44 ] I am also of the view that a sentence of open custody is not appropriate.

Each of J.M.’s three convictions for escape lawful custody arise out of open custody sentences. [ 45 ] Taking into account that J.M. has spend 61 days on remand, I am of the view that a sentence of 30 days closed custody and 15 days community supervision, followed by six months probation is appropriate. This sentence will apply to all of the offences set out in paragraph 5 above. [ 46 ] The conditions of the probation order will be as follows: The youth shall: 1. Keep the peace and be of good behavior 2. Report to the Court when required to do so. 3.

Report to a youth worker at 200 – 1942 Hamilton Street, Regina, Saskatchewan, ph: 306-787-0591, immediately in person. Continue to report and be supervised as told to do so by the youth worker or designate assigned to you 4. Live at a residence approved by your youth worker or designate. You may not change that address without the prior permission of the court or the prior written permission of your youth worker or designate. 5.

Stay inside your approved residence from 10:00 p.m. each night to 7:00 a.m. the next morning, unless you have the prior written permission of your youth worker or designate to be outside your approved residence during your curfew. You may also be out past your curfew if in the company of your youth worker. You must come to the door of your approved residence when asked to do so by a youth worker or designate, or police officer, who may be checking the residence and curfew conditions of this order. 6.

Participate in assessments and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your youth worker or designate. 7. Participate in assessments and complete programming for: personal counselling, mental health concerns or learning challenges as told to do so by your youth worker or designate.

8. See a medical doctor, psychiatrist and/or psychologist as told to do so by your youth worker and follow directions as to appointments, counselling, treatment and prescriptions. You shall agree to the release of information about appointment times and prescriptions to your youth worker. 9. Not possess any firearms, ammunition, crossbow, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition or explosive substance. 10. Go to school, attend day programming, or seek and maintain employment as told to do so by your youth worker.

J.M. ’ s Sentence for the Breaches of his Prior Community Supervision Order [ 47 ] J.M.’s prior Community Supervision Order expired on January 21, 2016. Accordingly, I order that no further action be taken. Follow Up [ 48 ] During the sentencing proceedings on February 19, 2016 Pam Schmidt advised the Court that she would act as J.M.’s caseworker. I sincerely hope this occurs. J.M. will need an “external brain” to assist him in obtaining the supports and services which Dr. Petryk has recommended. [ 49 ] J.M. also needs a stable, long term residence.

I am also hopeful that Probation Services will work closely with Community Living: Services Delivery to address a long term residency solution for J.M. _______________________________ M. Hinds, J Appendix “ A ” Offence History: May 13, 2014 Regina, Youth Justice Court 1 x 145(2)(

b) CC - Fail to attend court 1 x 145(2)(

a) CC - Fail to attend court 1 x 354 & 355 CC - Theft under $5000.00 1 x 90 CC - Concealed weapon (bear spray) 1 x 145(3) CC - Fail to keep the peace 1 x 145(3) CC - Fail to maintain curfew 1 x 145(3) CC - Fail to maintain educational programming 1 x 129(

a) CC - Falsely identifying himself 1 x 334(

b) CC - Theft under $5000.00 1 x 145(3) CC - Fail to keep the peace Sentence: One year Probation Order

25 hours of Community Service June 10, 2014 Estevan, Youth Justice Court 4 x 267(

a) CC - Assault with weapon (knife) Sentence: 30 days Open Custody 15 days Community Supervision June 16, 2014 Regina, Youth Justice Court 1 x 145(1) CC - Escape lawful custody Sentence: One year Probation Order 45 Community Service hours January 5, 2015 Regina, Youth Justice Court 2 x 137 YCJA - Fail to abstain from alcohol or drugs 1 x 137 YCJA - Failing to maintain a residence 1 x YCJA - Failing to maintain curfew Sentence: One year Probation Order April 23, 2015 Regina, Youth Justice Court 1 x 90 CC - Carry concealed weapon 1 x 137 YCJA - Fail to maintain residence 3 x 137 YCJA - Fail to keep the peace Sentence: 80 days Open Custody 40 days Community Supervision

June 2, 2015 Regina, Youth Justice Court 1 x 145(1)(

a) CC - Escape Lawful Custody Sentence: 40 days Open Custody 20 days Community Supervision July 27, 2015 Regina, Youth Justice Court 1 x 145 (1)(

a) CC - Escape Lawful Custody Sentence: 30 days Secure Custody 15 days Community Supervision