R. v. C.F., 2011 MBPC 77

CITATION: R. v. C.F. , 2011 MBPC 77 Date: 20111129 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) L. M. Carson, ) for the Crown ) and ) ) ) C.F. ) J. L. Ostapiw, Young Offender ) for the Young Offender ) ) ) Reasons for Decision delivered ) November 29, 2011 ) Restriction on Publication : Please note that the Youth Criminal Justice Act, s. 110(1), which prohibits the publication of any information that may identify a person as having been dealt with under this Act, applies to this judgment. Preston P.J. INTRODUCTION [ 1 ] Erhard Meier is a baker who owns and operates a bakery in Winnipeg.

Back in November of 2008, he was 73 years old. On November 5, 2008, Mr. Meier was doing what he ordinarily did on a work-day, which was drive to work - around midnight - to organise the business for the following day. He parked his vehicle in the bakery parking lot and was in the process of opening his driver’s door when he was viciously attacked by C.F. C.F. tried to drag Mr.

Meier out of his vehicle while beating him repeatedly with an aluminum baseball bat, in an attempt to rob him. [ 2 ] Earlier that evening, C.F., who was three months shy of his eighteenth birthday, had been partying at his auntie’s house with two other young men. One of the young men, a 21 year old, had worked for Mr. Meier for a short while: the young man’s father got him the job. So this young man was aware of Mr. Meier’s nightly routine. He came up with the plan to rob Mr. Meier. The three young men staked out the parking lot where they expected Mr. Meier to arrive.

C.F. had armed himself with a baseball bat from his auntie’s home. All three young men dressed themselves in dark clothing and tried to conceal their faces. They laid in wait for about an hour before Mr. Meier arrived. Mr. Meier was about to get out of his vehicle when C.F. struck him numerous times on the head, arms and legs with the baseball bat. Fortunately, the robbery was interrupted by witnesses and neighbours. Unfortunately, Mr. Meier suffered grave injuries. APPLICATION FOR ADULT SENTENCING [ 3 ] The Crown has given notice of their application for an order that C.F. be liable to an adult sentence.

C.F. has entered a guilty plea to robbery. A hearing has been held in respect of this application. The issue for the Court is whether a youth sentence is appropriate. Evidence

[ 4 ] I received evidence in various forms. I watched a videotaped recording of C.F.’s interview by the police upon his arrest in April of 2009. I read probation reports and forensic assessments, both current and historical. I heard evidence in court from C.F.’s parents, his street mentor and one of his counsellors. I reviewed a letter from C.F.’s pastor and heard and read a statement from C.F. at the end of the proceeding. I will review each of these pieces of evidence. Police Video Interview – April 17, 2009 [ 5 ] The police arrested C.F. and interviewed him on camera on April 17, 2009.

Throughout the entire police interview, C.F. never once let go of his bible. He asked the police if they liked his bible and referred to it as “my sword”. C.F. told the police that he “believes in justice”. He also told the police that on March 1 st of 2009, he was “saved” and he “wanted to go legit”. As far as the robbery, he explained: “I was drinking. I wanted some money. I wanted to keep drinking.” The robbery was interrupted because a bunch of people “came at” him. He claimed to have hit the victim “five times” with a baseball bat and claimed he was not “initially” going for his head.

He told the police that he was glad to hear that the gentleman, whom he did not know was 73, was okay, but he was not glad for what he did. But he admitted that it was he who did it, saying: “I take full responsibility. I would have kept hitting him ‘til I got money.” As far as any further articulation of remorse, he told the police “I asked God for forgiveness and he forgave. I ain’t dwelling on the past.” Presentence reports [ 6 ] A presentence report prepared when C.F. was 13 painted a picture of a troubled youth. The report outlined his then lack of insight and his problems with drugs and violence.

A forensic report prepared around the same time outlined an impatient, deliberately unelaborative and nonchalant child, without remorse. A 2004 presentence report contained an opinion from his mother, who told the probation officer that C.F.’s claims of not being safe at home were simply a manipulation of the system, so that he had an excuse to leave and do whatever he wanted. These dated reports highlight that as a young teenager, C.F. gave little thought to his victims and was very self-centered. [ 7 ] The most recent presentence report dated October 18, 2011 contains slim collateral input.

C.F. tells the probation officer that in February of 2009, he decided to change his life. He left the gang. He now has a pro-social girlfriend who attends university. He expresses remorse. He also says he has aspirations to take advantage of any programs available to him. He wants to graduate from adult education when released and live with his mother. He has been clean and sober since February 2009. [ 8 ] He also claims that he completed a rehabilitative program at Teen Challenge.

Interestingly, C.F. tells the probation officer that he stayed an extra three months at Teen Challenge after graduation because he enjoyed the program. What he did not tell the probation officer was that he was bound by a bail order to stay at Teen Challenge. He also seems not to have advised the probation officer that he was ultimately dismissed from Teen Challenge. I will outline those details later. [ 9 ] As far as his current recall of the robbery, it differs from what he told police in 2009. C.F. tells the probation officer that he was “very intoxicated”.

He also attempts to diffuse his culpability when he claims: “My intent wasn’t to use the bat, it was to scare him. My state of mind was to get money but for some reason I started hitting him.” He also frames the commission of the crime as needing the money to pay a debt, not simply to get money to continue drinking, which is what he told the police. [ 10 ] The probation officer still assesses C.F. as a high risk. Forensic Report October 19, 2011 [ 11 ] In this recent report, Dr.

Fisher, a well-respected clinical psychologist, outlined that C.F. told the doctor that he had a happy childhood with his grandparents until the age of six when he was moved back with his parents. C.F. believed he was dealt with harshly by his father and at the age of 13 he became a street person and a gang member. In Dr. Fisher’s words, C.F. began a “pattern of more substantive substance consumption as well as oppositional defiant behaviour directed at home and school.” He was suspended from school due to fighting and had no interest in listening to adults.

He was distressed following the death of his grandfather. [ 12 ] Dr. Fisher reported that C.F. emphasized to the doctor that he was “immature” at the time of the offence and is “more mature” at this time in his life. Dr. Fisher noted that back when C.F. committed the offence, he had stopped engaging in normative behaviour and had adopted an unstructured daily lifestyle, he had gang membership as part of his self-identification and he was significantly affected by ongoing substance abuse problems.

As far as the robbery, C.F. uttered feelings of “seeming genuine guilt and remorse and disgust”, and the doctor noted that C.F. had taken “several steps...towards positive change”. Dr. Fisher concluded that “[C.F.] seems much more mature at this point and is more willing to discuss his thoughts and feelings in an open fashion. He is future-oriented and has conveyed a sense of maturation across time.” However, as for being dismissed from Teen Challenge, [C.F.] felt that the breach was a “minor non-compliance with behavioural and social expectations”. [ 13 ] Dr.

Fisher was non-committal on the issue at hand; that is, whether a youth sentence is appropriate or viable. In Dr. Fisher’s opinion there are “no salient issues of a clinical or a psychological nature that need to be actively considered.” Viva Voce Evidence [ 14 ] The first witness who testified on behalf of C.F. was his father, M.F. His father told the Court that he hails from El Salvador. He has suffered from depression through his life.

He explained that when he and his wife had his son C.F. returned to them from the maternal grandparents, his son never felt that good with them and added: “My discipline was different. I was stricter than the grandparents.” After age 13, his son went to live with his mother when he was not on the run because, by that time, his parents had separated. In cross-examination, the father verified that in his son’s early years, the family home was a safe home and by 2005, his son C.F. was “out of control”. C.F. senior lived in El Salvador from 2007 to 2010.

He told the Court that in late 2008 or early 2009, his son C.F. phoned him and asked for forgiveness and expressed his sorrow for things that he had done. In 2010 when his son was at Teen Challenge, he had visits with his son. M.F. was very impressed with his son at that point. His son has called him regularly while most recently incarcerated and his son, in the father’s words, “listens much better”.

[15] The next witness was C.F.’s mother, E.F. She confirmed that her son by age 13 did what he wanted and never stayed home.She knew he was a member of a gang. In cross-examination, she verified that her son C.F. assaulted her in 2004, punching her in the facewhen she was trying to keep him home. At the time of the robbery, he was not living with her. However, while he was at Teen Challengeafter July 2009, she saw an “exciting change in him”. They both attended church together.

She, too, told the Court that her son nowlistens. [16] Steven Solomon, otherwise known as Pastor Steve, a minister and counsellor with Teen Challenge, is also a mentor and ateacher. He was the third witness. He explained that Teen Challenge is a Christian-based program for men with what he classified as“life-controlling problems”. There are two facilities, one in Brandon and one in Winnipeg. The counsellors attempt to move the residentsfrom being self-centered to becoming God- or other-centered individuals. Pastor Steve worked with C.F. during the first few months ofhis stay at Teen Challenge.

He told the Court that when C.F. first came to the program, he carried a lot of shame, had a terrible self-image and was frustrated with life. Pastor Steve described him as sensitive, moody, eager to do what is right, a bit of a loner with trustissues, but “academically and spiritually astute”. [17] Davinder Brar, the last witness, is a street mentor for a program run by Probation Services to monitor boys to the age of 19.About five years ago he was C.F.’s street mentor and he also continued to assist C.F. after his probation expired, because Mr. Brar washelping C.F.’s brother, who was then on probation.

He helped C.F. enrol in school and obtain identification. He also saw C.F. while hewas at Teen Challenge. Mr. Brar outlined that when he met C.F. five years ago, C.F. “verbalized a conscience” and was “contemplativeabout change”. Mr. Brar verified that eventually, C.F. left the gang. Ironically he can confirm that C.F. is no longer a gang memberbecause the church that C.F. was attending was on rival “turf”. He also verified that religion has changed C.F. “180 degrees”. Mr.

Brarhas displayed an impressive commitment to C.F.’s family and should be commended. [18] The Court received further evidence by way of a letter from C.F.’s pastor, Roberto Sanchez, who unfortunately was out of thecountry and could not give evidence, but did write that he has been working with C.F. for three years, helping him develop his characterthrough supervision and the participation of a tutor in a Christian context. He has visited C.F. in jail to help him understand how, in thepastor’s words, “the jail is a training to something positive”.

Obviously the pastor sounds like a very positive support for C.F. [19] C.F. spoke on his behalf. He wanted firstly to explain to the Court the backdrop to some of his various institutional breaches.His initial flight from Teen Challenge he framed as his being fearful of failure, because he was at that time unused to structure anddiscipline. The spraying of a chemical cleaning agent at a staff member in the Teen Challenge program, he framed as the victim being a“fellow student”, not a staff member, and claimed he was “just fooling around”.

He thought that the written reprimand he received fromthe same staff member was a “false ticket”, since this type of situation had happened before and he felt it all was a joke. The fight atHeadingley he framed as self-defence. He “thought” the dispute was over a game of basketball. [20] He then attempted to reframe his parents’ evidence: he described them as “nervous and confused”. He filed a letter and read a“formal apology to the victim”. The letter outlines that he is overcome with shame and remorse every day. He counteracts these feelingsby reading his bible.

He calls himself a zealous follower of Christ and he says it was in 2009 that he “re-invented” himself. He writes: “Ihope and pray that my description of the hard work I have put in to improve myself paint a clear picture of the man I am and plan to bewhen released back into the community. I have surrounded myself with all the right people that will help me accomplish all my long-term goals. I have the support of my family, my church family, Davinder Brar and countless others.” He then begged for mercy. Authorities [21] Various precedents were filed by the Crown and defence.

I have attached as part of the Appendix to my decision a list of all theauthorities and their citations. I intend to refer to some of the decisions, with the obvious proviso that no two young offenders are exactlythe same. Each of these decisions is factually distinguishable. [22] The Youth Criminal Justice Act identifies “accountability” as something I must consider when deciding a Crown application foran adult sentence. The O.(A.) et al decision of the Ontario Court of Appeal examined the concept of accountability in this context. TheCourt in O.(

A) et al confirmed that accountability is “the base requirement that drives the entire YCJA sentencing regime.”Accountability is achieved through the imposition of meaningful consequences for the offender, not society at large. It excludes theprinciple of general deterrence. Accountability embraces both the moral blameworthiness of the offender and the sanctions that promotehis rehabilitation and reintegration into society. [23] The Court in O.(A.) et al likened accountability to the concept of “retribution” and referenced the M.(C.A.) decision of theSupreme Court of Canada, (1996), (SCC), 105 C.C.C. (3d) 327.

In that case, the Supreme Court defined retribution asthe appropriate punishment 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.” In A.(

O) et al, an adult sentence was imposed on youths charged for a series ofarmed robberies of convenience stores. In so deciding, the Court concluded that the robberies in question were carried out with suchbrutality and recklessness that only a lengthy jail sentence would be a meaningful consequence for the youths being sentenced. [24] In an 2006 unreported decision of R. v.

D.(L.), my colleague Stannard P.J. imposed an adult sentence for robbery where thevictim’s optic orbit bone was fractured in two places, his nose was broken, he had nerve damage under his eye and his jaw was damaged.He eventually lost sight in one eye. The accused youth was 17 years, two days old at the time of the offence and 18 at the time of thesentencing. He was sentenced as an adult to eight months of pre-trial detention, which was notionally doubled for the purpose of thesentencing, plus two years of jail going forward, followed by two years of supervised probation. [25] Another unreported case, R. v.

B.K.T.S., involved a 15 year old who was given an adult sentence on a robbery charge. Herobbed a clerk at a gas station in early morning hours. He brandished a knife and wore a disguise. He stole cigarettes. Even though noinjuries were sustained by the victim, the Court held that a three-year cumulative maximum youth sentence would not suffice. [26] The decision of R. v. S.(T.J.), examines the role of remorse. The crimes committed by the 15 year old youth in questionincluded manslaughter, aggravated assault and robbery. The Court found the youth exhibited genuine remorse.

However, the Court heldthat “remorse only goes so far when faced with the magnitude of the crimes committed.” The global sentence was six years in jail. Time

in custody was credited at one to one. [ 27 ] The Crown filed transcripts of the sentencing proceedings of both of the young adult co-accuseds involved in this crime. The young man who planned the robbery, a Mr. Cardinal, was present for the crime but did not participate in the violence. He received a seven-year jail sentence on July 15, 2010. The second co-accused, Mr. Manitopyes, was sentenced on March 18, 2011. He received the equivalent of almost six years in jail with probation to follow. In sentencing Mr. Manitopyes, my colleague Guy P.J. contrasted Mr.

Manitopyes’ role with the other two co-accused (being Mr. Cardinal and C.F.), noting that Mr. Manitopyes neither planned the robbery nor participated in the violence. [ 28 ] The Crown also filed a number of authorities on the topic of pre-trial detention. The cases are helpful for broad principles but I need not refer to them individually. [ 29 ] The defence filed three decisions. The first, R. v. B.J. , involved an accused female youth who was four months shy of her eighteenth birthday when she committed a vicious robbery. A youth sentence was still deemed appropriate despite the serious nature of the robbery.

Again, the case is helpful for broad principles, but distinguishable because of the accused youth’s forensic challenges. The B.J. decision also examines the concept of maturity. Some factors indicating lower maturity may be chronological age, mental immaturity, a history of disadvantage, poor education, Aboriginal background and relative absence of adult guidance. Very few of these factors apply to C.F. In fact, C.F. was living an adult lifestyle, albeit anti-social and fairly self-destructive, but is fortunate enough to have no cognitive or intellectual challenges. [ 30 ] In the case of R. v.

D.(M.) et al , the Court noted that in the context of pre-trial detention, a group of teenagers in trouble with the law, held in custody, might well be expected to commit institutional misbehaviours. Prospects for each of the youths were positive. [ 31 ] The third decision, R. v. C.S. , dealt with a 14 year old youth convicted of aggravated assault, involving a brutal beating and torture of a young woman for the better part of an hour. She played a major role in the assault.

The Court in that case held a youth sentence would hold her accountable, taking into account not only the length but also the specific rehabilitative intensity of the sentence available. YOUTH vs. ADULT SENTENCE [ 32 ] In making my decision on this application, I am mandated by s. 72 of the Youth Criminal Justice Act to consider the following: the seriousness and circumstances of the offence; the age, maturity, character, background and previous record of the offender and any other factors that I consider relevant.

This requires my weighing and balancing the enumerated factors in order to satisfy myself that a youth sentence is or is not long enough to hold the young person “accountable” for his crime. [ 33 ] I must look to the purpose and principles set out in s. 3(1)(b)(ii) and s. 38 of the Youth Criminal Justice Act to see if I am satisfied that a youth sentence suffices to hold the young person “accountable” for his offending behaviour. If so, I must impose a youth sentence. If not, I must order that an adult sentence be imposed.

The onus of satisfying the Youth Court is with the Crown in this instance. [ 34 ] I have attached as part of an Appendix to my decision the relevant portions of the Youth Criminal Justice Act . Section 3(1)(b) (ii) specifies that the youth criminal justice system emphasizes “fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity”.

Section 38 outlines that the purpose of sanctions in the youth system is to craft meaningful consequences for the young person in order to promote his rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [ 35 ] It is agreed that under s. 42(2)(

n) of the Youth Criminal Justice Act , the maximum sentence for robbery is two years of secure custody followed by one year of supervision in the community. In other words, a maximum of three years. As an adult, the maximum sentence is life imprisonment. The seriousness and circumstances of the offence [ 36 ] Obviously C.F.’s participation in this robbery was huge. The robbery was carried out with a shocking degree of callousness.

I will list the factors that make this crime so serious: • There was planning and premeditation, as crude as it was. • The three young men wore dark clothing and disguised themselves, in an attempt to conceal their identities • C.F. armed himself with a weapon; • The three young men hid and waited for about an hour at the scene of the crime; • The violence perpetrated upon a 73 year old man, a stranger to C.F., was completely gratuitous, unnecessary and egregious; • C.F. struck Mr.

Meier with an aluminum baseball bat, delivering potentially lethal blows to the head; • C.F. admitted that the violence would have continued until money was obtained from Mr. Meier; • The injuries to Mr. Meier were extensive, as I will outline below; • C.F. is solely responsibility for the violence and resultant injuries; • C.F. displayed no regard for the consequences of his behaviour.

[ 37 ] By the time he got to the hospital, Mr. Meier’s left ear was bleeding profusely and had swelled up and turned blue. His left ear was lacerated approximately two centimetres in length. He received approximately 16 stitches to stop the bleeding. Both his left arm and left leg were fractured. He needed physiotherapy and was on medication for pain relief. He was off work for three months. He has permanent, significant hearing loss. He still has periodic, severe headaches and suffers dizziness with any sudden movement. [ 38 ] He and his family were traumatized by the event.

He felt that he would have been killed had the neighbours not intervened. Indeed, C.F. himself says he would have kept beating Mr. Meier until he got money. [ 39 ] Prior to the attack, Mr. Meier had gone to work in the fashion he did that night since November of 1974. Now he is always apprehensive on the way to work and he phones ahead to ensure his safety. His quality of life has changed in other ways, including the fact that he has less strength in his left arm. Mr. Meier was present in court for most of the hearing before me. He was accompanied by his son, who told the Crown that his mother, Mr.

Meier’s wife, is still traumatized and will not, for instance, ever go to the bakery. Maturity [ 40 ] When he committed the robbery, C.F. was almost eighteen. He is 20 years old now. Even at the time of the offence, in most aspects of his young life, he had appropriated, adopted and assimilated an adult lifestyle, albeit a gang-identified life on the street. [ 41 ] In terms of his current level of maturity, he has a demonstrated commitment to religion, sobriety, his girlfriend and his parents.

He has demonstrably rejected the gang lifestyle but it must be said that at the time of the offence he had a significant “street maturity”. It is clear from all reports that C.F. is an intelligent young man who suffers no clinical deficits. Moreover, it was only shortly after this incident that C.F. became more future-oriented and started to try to develop pro-social goals. As far as formal education, because he was on the street by the age of 13 he only attained a grade six education.

He was in adult education at the time of his arrest and has concrete plans to further his education. [ 42 ] In conclusion, at the time of committing the offence C.F. was a relatively mature young man who was consciously rejecting most pro-social values. At the present time he presents as a much more pro-social individual. When I look at C.F. then and now I do not see a particularly immature youth. Character [ 43 ] Obviously at the time of the offence C.F. had an anti-social outlook.

He had little connection to his mother and father whom, it must be said, provided a good home, albeit a strict environment, for their four children. [ 44 ] There are no clinical mental health issues either at the time of the offence or at present. In terms of his remorse, he has no pride in what he has done. Quite the opposite seems to be the case. At present, C.F. is committed to a sober life. [ 45 ] There is a recent history of institutional misbehaviour.

While incarcerated in a youth facility, he fought (April, 2009), he yelled and screamed from inside his room, ostensibly preaching to his fellow residents (June, 2009). Also of concern to the Court is the incident that brought C.F. back into custody. He had been granted bail to the Teen Challenge program in late July 2009. In early August, he ran from the Teen Challenge program. He was arrested August 24, 2009 and released August 27, 2009 back to the Teen Challenge program.

Even though C.F. had resided at and graduated from an intensive counselling program with an emphasis on spirituality and discipline, on October 2, 2010 C.F. deliberately sprayed a Teen Challenge staff member in the face with a chemical cleaning agent and in the words of Teen Challenge demonstrated “an utter disrespect for staff and committing an assault”. When the staff member confronted C.F. and provided him with a written reprimand, C.F. laughed off the incident, crumpled up the document and threw it in the garbage.

Teen Challenge on the other hand took it very seriously and dismissed him from their program on October 4, 2010. He was incarcerated on October 7, 2010 and has remained in custody since then. While in custody most recently, C.F. has acted out. He fought with another inmate at the adult correctional centre. When ordered by staff to desist, he continued fighting (February 18, 2011). [ 46 ] As I have stated, C.F. attempted to reframe all the institutional incidents to try to define them as trivial or innocuous and to put himself in the best light. It must be said that C.F. tends to minimize his negative behaviours.

Obviously, these issues pertain not only to anger management but also to a tendency to try to manipulate. [ 47 ] Even though the Court accepts that C.F. feels remorse, he diminishes the depth of his remorse with his justifications and also by concluding that God has forgiven him his past transgressions, including the robbery, so it is all in the past. In some respects, fulsome victim empathy is lacking. Criminal record [ 48 ] C.F.’s criminal record has entries for violence, drugs and breaches. He does not come before the Court without an unblemished criminal past.

Other relevant factors [ 49 ] After the robbery attempt and their flight from the scene, the three young men returned to C.F.’s auntie’s house. His auntie described them laughing about the incident and mentioning that “they’d beaten up the old man”. At the time the aunt spoke to the police she outlined that she was fearful of C.F. She says that he went back for his baseball bat weeks later, telling her that it was for his “protection”. [ 50 ] Notwithstanding C.F.’s spiritual conversion, he did not turn himself in to the police on this charge prior to his arrest.

He was arrested April 17, 2009. [ 51 ] On the one hand, there are no clinical issues to address in terms of C.F.’s intellectual and executive functioning. Spiritually and educationally, he has made a lot of progress both in and out of custody after the offence. On the other hand, negative behaviours have

continued. The institutional incidents demonstrate impulse control and anger management issues. At this juncture, I cannot conclude that C.F. can be safely supervised in the community. [ 52 ] Unfortunately, this matter has not been dealt with expeditiously. After what seems an inordinately long time, C.F.’s first lawyer withdrew because of a conflict, as did his second lawyer. As a result, two separate preliminary hearings were scheduled.

At the commencement of the second preliminary hearing in February of this year, C.F. dismissed his third lawyer and retained his current counsel, Ms Ostapiw, who dealt with the matter expeditiously. The charge was adjourned to a continuation date in April, but prior to the day of the preliminary hearing, the matter was resolved. Thus the victim was finally spared the further trauma of testifying. The passage of time has had a somewhat leavening effect on C.F., but has prolonged and protracted the process for the victim.

Other relevant statutory considerations [ 53 ] Looking at factors I must examine besides accountability, the purposes and principles of the Youth Criminal Justice Act are clear. A youth must not receive a greater punishment than an adult convicted of the same offence in the same circumstances. In this instance the two young adult co-accuseds received jail terms equivalent to approximately six years and seven years. If sentenced as a youth, C.F.’s sentence must be proportionate to the seriousness of the offence. I must also consider his degree of participation.

Obviously his role in the robbery and resultant harm to Mr. Meier was integral. C.F.’s moral blameworthiness is high. The sentence must be the least restrictive, the most likely to rehabilitate and reintegrate C.F. into society and promote a sense of responsibility and acknowledgement of the harm done. I must consider the harm done to the victims, whether it was intentional or reasonably foreseeable. The harm was great, C.F. intended it and it was entirely foreseeable. In these circumstances a sanction other than custody cannot be considered.

In fact, both counsel agree that custody is the appropriate sanction. [ 54 ] I have already outlined the aggravating circumstances. I will now outline the mitigating factors: • C.F. was fully cooperative with the police upon arrest and readily admitted to his role in the robbery; • He was drinking alcohol and smoking marijuana that night.

The degree of intoxication in no way mitigates the situation, nor is it a mitigating factor – the best that can be said is that it may have been a trigger for the crime; • Late in time though it was, he eventually entered a guilty plea to the robbery, indicating his remorse and ultimately sparing the victim the necessity of testifying; • He has made efforts to participate in programs both in and out of custody; • He has attained sobriety and left the gang; • He has had a spiritual conversion and he receives ongoing counselling from his pastor; • All collateral sources from familial to professional have noted some positive changes; • C.F. is by all accounts sorry for what he has done.

C.F.’s last words to the Court were “I am here to take full responsibility. I’m truly remorseful.” [ 55 ] I am also mandated to consider time spent in detention as a result of the offence. C.F. has spent a significant amount of time in custody on this matter. Prior to his first bail, he spent 100 days in custody. After his last breach, he has spent a further 418 days in pre-trial detention as of November 29, 2011.

He was sentenced to 30 days of the first 100 days of custody, so he has been in custody on this charge for the equivalent of 488 days. [ 56 ] The Crown has asked that none of the time in custody after the breaches be considered if C.F. is sentenced as a youth. Defence has asked that the first portion of time in custody be credited at a higher rate than the second portion.

Decision [ 57 ] If I calculate a youth sentence that includes each day of the 488 days of pre-trial detention and add two years of secure custody plus one year of community supervision, the total youth sentence would be the equivalent of four and a half years. I find that such a youth sentence simply is not of sufficient length to hold C.F. accountable for his pivotal role in this particular robbery. A vicious, unprovoked attack with a potentially lethal weapon left an innocent person with life-changing injuries.

When I balance all the factors I have previously outlined, I am left with no alternative but to incarcerate C.F. for longer than five years. [ 58 ] The Crown has satisfied me that an adult sentence should be imposed on C.F. for this offence. Therefore, I am granting the Crown’s application. I am ordering that C.F. be sentenced as an adult for the robbery. [ 59 ] In holding that a youth sentence will not suffice, I am directed by s. 74 of the Youth Criminal Justice Act to apply the purposes and principles of sentencing set out in s. 718 of the Criminal Code .

Some courts hold the view that even when an adult sentence is imposed, the purposes and principles of sentencing set out in the Youth Criminal Justice Act are still a consideration. In other words, the adult sentence should also attempt to have meaningful consequences which promote C.F.’s rehabilitation and reintegration into society and thereby contribute to the long-term protection of society. In my view, I am sentencing C.F. as a youthful offender and as such, principles of rehabilitation and prospects for reintegration form an integral part of the sentence.

However, the principles of denunciation and general and specific deterrence now also pertain. [ 60 ] Both counsel have already made submissions as to sentence in the event that I decide an adult sentence is appropriate. The Crown has asked for at least seven years. Defence has emphasized the mitigating factors including C.F.’s youthfulness and has asked for a sentence close to six years, less time in custody.

[61] Parity is an issue here. The co-accused Mr. Cardinal was 19 at the time with a criminal record. He was the planner of therobbery, but did not participate in the violence. A sentence of seven years was imposed. The co-accused Manitopyes was 21 at the time.There was no indication that he participated in the violence. His sentence, which took into account time spent in custody, was theequivalent of an almost six-year jail sentence. After deducting pre-trial detention, the sentencing judge was still able to impose a periodof probation upon Mr.

Manitopyes after the expiry of the jail sentence. [62] Obviously, C.F. was the youngest of the three young men. He is now 20 years old. Although C.F. did not formulate the plan,he was solely responsible for the injuries to Mr. Meier. He could have killed Mr. Meier. It was only through the good fortune ofwitnesses intervening that the violence ceased. [63] He has been through some fairly radical shifts in attitude since the commission of the robbery. Those shifts lay a goodfoundation for his future rehabilitation.

His decision upon turning 18 to explore and follow a spiritual path and his commitment tosobriety and a higher education will greatly enhance his prospects for rehabilitation. A complicating factor here is the passage of time.The gains made are somewhat neutralized by the periodic acting out, both in and out of custody. For C.F., the road to rehabilitation hasbeen rocky. But there is no doubt he is on the right road. [64] On the other hand, his actions on the night in question cry out for denunciation.

Both the public and C.F. must understand fromthis sentence that bashing an innocent citizen over the head with a baseball bat to try to steal money from him is behaviour that will notbe tolerated and will be condemned by the Court with the most serious penal sanctions. [65] Taking all these factors into consideration, a fit sentence for C.F. would otherwise be six years in jail. [66] I am prepared to assess double credit for 70 of the first 100 days spent in custody, bearing in mind that 30 of those days havebeen notionally used up as a sentence for one of the breaches. That is the equivalent of 140 days.

I am also prepared to give C.F. crediton a one-to-one basis for every other day in custody, being 418 days, for a notional equivalent of 558 days, which for the purpose of thissentence is the equivalent of 18 and one-half months. Therefore, the sentence is 18 and one-half months of pre-trial detention noted and53 and one-half months in jail going forward.

In other words, the equivalent of six years in jail. [67] Pursuant to s. 109 of the Criminal Code, I prohibit C.F. from possessing any firearm, crossbow, restricted weapon, ammunitionand explosive substance for a period of 10 years after his release from imprisonment and any prohibited firearm, restricted firearm,prohibited weapon, prohibited device and prohibited ammunition for life. [68] I am also ordering that C.F. submit a sample of his DNA within the next 30 days to the correctional authorities for entry in theForensic Data Bank. [69] A final word for Mr. Meier.

Unfortunately, this Court cannot make him whole again. Nothing I do today can heal his injuriesor erase the trauma. However, all three of the young men who tried to rob Mr. Meier and hurt him badly have not only been apprehendedbut also have admitted their parts in the crime against him and have finally all been sentenced. Perhaps this might give him some comfortand allow for some closure. That at least is my hope for Mr. Meier and his family. [70] Pursuant to s. 76(4) of the Youth Criminal Justice Act I am now ordering that a placement report be prepared. Original signed by Judge T.J. Preston P.J.

APPENDIX Authorities filed by the Crown R. v. O.(A.) 2007 ONCA 144 , [2007], 218 C.C.C. (3d) 409 Ont. C.A. R. v. D.(L.)

(2006) MB Prov. Ct. unreported R. v. B.K.T.S., 2009 MBQB 56 R. v. S.(T.J.), 2007 BCSC 1015 R. v. Logan, 2009 ONCA 402 R. v. Cardinal, sentencing submissions July 15, 2010 R. v. Cardinal, decision on sentence July 15, 2010

R. v. Manitopyes, decision on sentence March 18, 2011 R. v. Vermette (2001), 2001 MBCA 64 , 154 C.C.C. (3d) 193 R. v. McGovern (1993), (MB CA), 82 C.C.C. (3d) 301 R. v. Austin (1996), 78 B.C.A.C. 249 R. v. Warren (1999), (ON CA), 127 O.A.C. 193 R. v. Bird

(2008) MBQB unreported R. v. A.(R.K.) (2006), 2006 ABCA 82 , 208 C.C.C. (3d) 74 R. v. P.(N.W.), 2008 MBCA 101 Authorities filed by defence R. v. B.J., 2009 ABPC 180 R. v. D.(M.) et al, 2008 ONCJ 310 R. v. C.S., 2008 NSPC 22 Relevant portions of the Youth Criminal Justice Act Subsection 3(1)(b)(ii): Policy for Canada with respect to young persons 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 ofmaturity,

Section 38: Purpose 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through theimposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation andreintegration into society, thereby contributing to the long-term protection of the public. Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principlesset 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 beenconvicted of the same offence committed in similar circumstances; (

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

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

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, withparticular 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. Factors to be considered

(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.

Section 72: Test — adult sentences 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. Onus

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant. Pre-sentence reports

(3) In making its decision, the youth justice court shall consider a pre-sentence report.