Her Majesty the Queen - v. -, 2012 SKPC 34

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2012 SKPC 034 Date: February 23, 2012 Information: 36651859, 43266428, 36651880, 36651881, 44659696, Y342528 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - D.S.

Appearing: Val Adamko For the Crown Kevin Hill 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 D.A. LAVOIE , J _____________________________________________________________________________ I INTRODUCTION

[1] D.S. has pled guilty to a number of violent offences. The essence of the offences can be summarized as involving sevenrandom street robberies “over a three week period” with a co-accused, while they were armed with weapons and had their faces masked. The crime spree continued with an escalation in violence culminating in the last eventful night where they committed a home invasionand robbery while armed with a loaded hand gun.

Then four hours later they perpetrated another random street robbery where a youngvictim was shot leaving him permanently paralyzed. [2] D.S. is now before the Youth Justice Court charged on six different Informations. On May 27, 2010, he made his firstappearance on Information 44659696 in Youth Justice Court. The remaining charges were read in on June 2, 8 and 24, 2010.

He hasconsented to his remand on all matters to this date. [3] Pursuant to s. 42(9), the Crown gave Notice asking the Court to find that the offences to which he has now entered guiltypleas on Informations 4465696, 36651880, 36651881, 36651859 and 43266428 are serious violent offences. [4] On October 13, 2010 the Crown gave notice on the record of its intention to seek an adult sentence pursuant to s. 64(2) of theYouth Criminal Justice Act (YCJA).

Written notice has since been filed with the Court. [5] On February 22, 2011, he entered guilty pleas and a report was ordered in accordance with s. 72(3) of the YCJA, and onMarch 8, 2011, Defence requested the preparation of a psychological assessment for sentencing purposes. [6] As of February 23, 2012 he has spent 653 continuous days on remand at Kilburn Hall Youth Centre in Saskatoon. [7] On August 15, 2011, Justin Smith, date of birth February 2, 1992, co-accused, pled guilty to twelve offences. Nine of hisconvictions are robberies committed with D.S.

Smith received a global sentence of 11 years in a federal penitentiary.

He received aremand credit of 22.5 months. [8] The third co-accused, Arthur Jack, date of birth August 20, 1967, has entered not guilty pleas on all matters and is set forpreliminary hearing March 12, 2012. [9] Section 42(9) of the Youth Criminal Justice Act (YCJA) states as follows: 42(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties anopportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence andendorse the information or indictment accordingly. [10]

Section 2 of the YCJA defines a “serious violent offence” as follows: “serious violent offence” means an offence in the commission of which a young person causes or attempts to cause serious bodily harm. [11] In R. v. C.D.; R. v. C.D.K., 2005 SCC 78 , 2005 S.C.C. 78, [2005] 3 S.C.R. 668, 34 C.R. (6th) 323, 203 C.C.C. (3d)449, the Court adopted a prior definition of serious bodily harm, and stated: Specifically, Cory J.

Held that “serious bodily harm” is “any hurt or injury, whether physical or psychological, that interferes in asubstantial way with the physical or psychological integrity, health or well-being of the complainant”. I see no reason why this definitionof “serious bodily harm” should not also be used for purposes of the YCJA, and, in particular, for purposes of the definition of “seriousviolent offence” that is found in s. 2(1) of the Act. (See para. 20)

[ 12 ] I will review the facts in

summary form later in this sentencing decision. However, for the purposes of the s. 42(9) application of the Crown, there is really no dispute that the offences fall within the definition of a “serious violent offence”. The Defence does not take issue with this, and as such, the Court makes a determination the offences to which D.S. pled guilty are “serious violent offences”.

II APPLICATION FOR AN ADULT SENTENCE [ 13 ] With respect to the application for an adult sentence, s. 64(1) of the YCJA reads as follows: 64(1) The Attorney General may, following an application under subsection 42(9) (judicial determination of serious violent offence), if any is made, and before evidence is called as to sentence or, where no evidence is called, before submissions are made as to sentence, make an application for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence, other than a presumptive offence, for which a adult is liable to imprisonment for a term of more than two years, that was committed after the young person attained the age of fourteen years. [ 14 ] Under s. 344(

b) of the Criminal Code an adult would be liable to imprisonment for life. In addition, for the offence under s. 344(

a) an adult would be subject to a minimum sentence of 5 years incarceration. D.S. was 17 years, 11 months of age when he committed the last offence. It is not a presumptive offence. Thus the required criteria is met for the Court to enter a determination of whether D.S. should be sentenced as a young offender or an adult. [ 15 ]

Section 71 of the YCJA states as follows: 71 The youth justice court shall, at the commencement of the sentencing hearing, hold a hearing in respect of an application under subsection 63(1) (application for youth sentence) or 64(1) (application for adult sentence), unless the court has received notice that the application is not opposed. Both parties and the parents of the young person shall be given an opportunity to be heard at the hearing.

Throughout this hearing the young person has been opposed to being sentenced as an adult. [ 16 ] The test the Court is to apply in determining whether or not to impose an adult sentence is set out in s. 72 of the YCJA, as follows: 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 purposes 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.

(2) The onus of satisfying the youth justice court as to the maters referred to in subsection (1) is with the applicant.

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

(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.

(5) For the purposes of an appeal in accordance with

section 37, an order under subsection (1) is part of the sentence. [ 17 ] Relevant portions s. 3 read as follows: 3(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to (

i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public; (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (

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

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

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

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community,

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

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). [ 18 ]

Section 38 of the YCJA provides: 38(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence though 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 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.

(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 forseeable;

(

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 andprinciples set out in this section. [19] In R. v. F.(B.C.), 2008 SKPC 98, 326 Sask. R. 77, Judge Halliday of this Court set out, at paragraph 16 and approach that shefelt was useful in looking at a s. 72 application. This approach was confirmed by the Sask. C.A. in R. v. F. (B.C.) 2009 SKCA 146, 249C.C.C. (3d) 366. In R. v. A. (S.J.), 2010 SKPC 112, and R. v. R.L. 2012 SKPC 22 , 2012 SKPC 022. Two judges of this Courtfollowed that same format.

The approach is as follows: 1) Upon receipt of an opposed Crown application for an adult sentence, the Court must order at least a pre-sentence report and hold ahearing. 2) The Crown bears the onus throughout the proceedings. 3) Within the context of

section 72, the Crown must prove disputed facts on which it seeks to have the Court rely beyond reasonabledoubt. Disputed aggravating circumstances must also be proven beyond reasonable doubt. 4) The Crown is not required to satisfy the Court that a youth cannot be rehabilitated by a youth sentence. 5) Except where disputed, the contents of court-ordered reports form part of the record for the Court to consider. 6) The ultimate issue in paragraph 72(1)(

b) does not fall within the category of disputed facts or disputed aggravating circumstances. Itdoes not lend itself to proof beyond reasonable doubt. The determination of the ultimate issue requires the Court to make an “evaluationdecision” or an “informed judgment” in the formulation of its opinion. The phrase “is of the opinion” does not equate to the level ofcertainty that attaches to the requirement of proof beyond reasonable doubt. 7) The Crown’s onus is to satisfy the Court that a youth sentence imposed in accordance with the purpose and principles set out insubparagraph 3(1)(b)(ii) and

section 38 of the YCJA would not have sufficient length to hold the young person before the Courtaccountable. 8) It is not useful to categorize the onus in terms of its weight. However, it is imperative to consider applications for adult sentences asmatters of the utmost seriousness involving severe consequences for young persons flowing from the loss of entitlement to a youthsentence. 9) The Court must weigh and balance the factors in subsection 72(1). Depending on the nature of the case, some factors may assumemore importance than others. However, each factor must be properly considered.

The Court must formulate its opinion on thesufficiency of the length of a youth sentence to achieve accountability for the young person before the Court.

10) In assessing accountability, the Court must start from the principle of presumed diminished moral culpability as identified by theSupreme Court and as reflected in subparagraph 3(1)(b)(ii) and

section 38 of the YCJA. Pursuant to the YCJA, accountability is fair andproportionate accountability consistent with a particular young persons’s greater dependency and reduced level of maturity. In youthsentencing, these reduced capabilities are also reflected in just sanctions having meaningful consequences for a particular young personwhich promote rehabilitation and reintegration into society, thereby contributing to long term public protection. These reducedcapabilities are also reflected in sanctions imposed pursuant to subsections 38(2) and (3). Accountability, in the context of

section 72,involves the concept of a meaningful consequence together with rehabilitation and reintegration for a particular youth with individualizedcircumstances who has committed a particular crime. In this context, accountability is the young person’s equivalent of the adultprinciples of retribution.

As does retribution, accountability represents an objective, reasoned and measured determination of a sentenceproperly reflecting the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequentialharm caused by the offender and the normative character of the offender’s conduct. 11) If the Crown satisfies the Court that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph3(1)(b)(ii) and

section 38 of the YCJA would not have sufficient length to hold the young person accountable, the presumption ofdiminished moral culpability is rebutted and the young person loses entitlement to a youth sentence. The Court shall then order than anadult sentence be imposed. [20] In R. v. S.(C.), 2008 NSPC 22, 848 A.P.R. 235, 265 N.B.R. (2d) 235, Judge Williams of the Nova Scotia Provincial Courtdealt with the accountability aspect as follows: [13] The focus is on length of sentence necessary to hold CS accountable for her offending behaviour. Furthermore,

section 38 of theYCJA requires that youth be held accountable in a certain way. They are to be held accountable through the imposition of just sanctionsthat have meaningful consequences for them and that promote their rehabilitation and integration back into the community. When one isconsidering whether or not a youth sentence would be sufficient to hold a young person accountable within the meaning of

section 72,the youth sentence, to be acceptable must not only be long enough to reflect the seriousness of the offence before the Court and theaccused’s role in it, but it also must be long enough to provide some reasonable assurance of the accused’s rehabilitation to the pointwhere he can be safely reintegrated into society. It need not and indeed cannot guarantee rehabilitation. [14] I agree that the purpose of accountability would seem to exclude accountability to society in a larger sense and that it would alsoexclude any notion of deterrence or denunciation: [R. v.

O.A., supra (2007 ONCA 144, 222 O.A.C. 38, 218 C.C.C. (3d) 409, 84 O.R.(3d) 561)] at para. 42. I agree as well that this view of accountability is consistent with the “offender-centric” nature of youth sentencingas identified by the Supreme Court of Canada in R. v. N.(B.) (2006), 2006 SCC 27 , 209 C.C.C. (3d) 97 (S.C.C.) wherein thecourt held that general deterrence is not a factor in youth sentencing. [21] In R. v.

B.(D.), 2008 SCC 25, 56 C.R. (6th) 203, 231 C.C.C. (3d) 338, 293 D.L.R. (4th) 278, [2008] 2 S.C.R. 3, the SupremeCourt was dealing with a presumptive offence, in which a youth was applying to be sentenced as a youth, rather than as an adult. Although dealing with what would be in effect the flip side of this application, the comments made by Abella J.

For the five/fourmajority bear repeating: [41] What the onus provisions do engage, in my view, is what flows from why we have a separate legal and sentencing regime for youngpeople, namely that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moraljudgment. This entitles them to a presumption of diminished moral blameworthiness or culpability.

This presumption is the principle atissue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment. . . . [44] This statutory preoccupation with ensuring that sentencing reflects the reduce maturity and moral sophistication of young persons,guided this Court in R. v. D. (C.), 2005 SCC 78 , [2005] 3 S.C.R. 668, 2005 S.C.C. 78, where Bastarache J. noted the YCJA’sgoal to “send a clearer message to those involved in the youth criminal justice system about restricting the use of custody for youngoffenders” (para. 48). Bastarache J.

Concluded that “the object and scheme of the YCJA, as well as Parliament’s intention in enacting it,all indicate that the YCJA was designed, in part, to reduce over-reliance on custodial sentences for young offenders” (para. 50). [45] These considerations reveal that the approach to the sentencing of young persons is animated by the principle that there is apresumption of diminished moral culpability to which they are entitled. Like all presumptions, it is rebuttable.

Under the presumptiveoffences sentencing scheme, it is the young person himself or herself who is required to prove that the presumption should not berebutted, rather than the Crown who is required to show why it should be. The constitutional implications of this reveal of the onus

create the legal knot we are asked to untie.

To do so, we must first determine whether the principle of a presumption of diminished culpability is one of fundamental justice within the meaning of s. 7 of the Charter . [ 22 ] In answering that question, at para. 68, Abella J noted: [68] The preceding confirms, in my view, that a broad consensus reflecting society’s values and interests exists, namely that the principle of a presumption of diminished moral culpability in young persons is fundamental to our notions of how a fair legal system ought to operate. [ 23 ] I repeat this at some length for a number of reasons.

The first is that it must be made abundantly clear that the process involves, at the first stage, an analysis of the enumerated factors in s. 72. There is a clear statutory process in place which must be followed. [ 24 ] The second point I raise is that the concept of diminished moral responsibility runs through the entire Youth Criminal Justice Act . As the Supreme Court points out, it is a presumption that can be rebutted.

However, numerous decisions point out, one must not lose sight of the fact of the serious consequences of taking away from a youth that presumption of diminished moral capacity. [ 25 ] The third point I make is that, after a careful consideration of the enumerated factors in s. 72 of the YCJA , if the Court determines that a youth sentence would not be of sufficient length to hold the young person accountable, it would then impose a sentence using the regular adult sentencing regime set out in s. 718 onwards of the Criminal Code . [ 26 ] Against the background, the Court must review the enumerated factors under s. 72(1). [ 27 ] Prior to entering on the s. 72(1) assessment the Court feels that the time frame and circumstances of the offences that were set out in a lengthy Agreed Statement of Acts, should be summarized: D.S.’s date of birth is June 21, 1992.

He was 17 years and 10 months of age on April 2, 2010 the date of the first offences and 17 years and 11 months of age on May 23, 2010, the date of the last offences. His co-accused on each occasion was Justin Smith, date of birth February 2, 1992. He was 4 months and 20 days older than D.S. however aged 18 and an adult at the time. Each time they had their faces masked and escaped from the scene back to a waiting van driven by Arthur Jack (date of birth August 20, 1967). Information 36651859 Count 1 : April 12, 2010, at approximately 2:30 a.m. two male victims were walking down 8 th Street in the City Saskatoon.

This is a well lit, busy commercial street. The two victims were approached by 4 males all wearing hoodies and bandanas over their faces. One assailant was holding and brandishing a large hunting knife. The assailants had the victims empty their pockets. They robbed the victims of their personal belongings and ran away from the scene. Information 43266428 Count 1 : April 13, 2010, at approximately 2:10 a.m., again on 8 th Street, a male victim was robbed on the street of his personal belongings by D.S. and Justin Smith.

During the robbery, one of them lifted the victim’s shirt and stuck a knife to his stomach and asked if he wanted to die. Count 16 : April 13, 2010 At approximately 2:48 a.m. D.S., Justin Smith and another male accosted a victim in the 8 th Street area and attempted to rob him. One of the three male assailants was carrying a machete. The victim was able to run away and contact the police.

Count 5 : April 18, 2010 At approximately 12:45 a.m., just four blocks off 8 th Street, D.S. and Justin Smith accosted a male victim. One of them was carrying a baton of some kind. The victim managed to escape, but dropped his Ipod at the scene which he did not recover. Count 3 : April 24, 2010 At approximately 12:50 a.m. a male pedestrian in the same area as above, was accosted and robbed by D.S. and Justin Smith who were brandishing a machete and 12” pipe. They took the victim’s backpack and personal belongings from his pockets.

Count 7 : April 24, 2010 At approximately 1:39 a.m., D.S. and Justin Smith while each were carrying machetes robbed a male victim, in the parking lot behind a business on Broadway Avenue. They took his wallet, credit cards, ID and some cash. Count 9 : April 24, 2010 In the early morning hours on Ruth Street, D.S. and Justin Smith accosted a lone male pedestrian while each was carrying a machete. They robbed the victim of $10.00 and fled the scene. The victim stated the males were very threatening and felt they would not think twice about stabbing him.

Count 11 : May 3, 2010 At approximately 10:30 p.m. just a few blocks from the University campus D.S. and Justin Smith, while brandishing clubs, accosted four male victims and robbed them of money, identification and other personal items. Information 36651881 May 22, 2010 This was the night of May 22 and early morning hours of May 23, 2010 when the level of victimization and violence seriously escalated. At approximately 11:20 p.m. D.S. and Justin Smith entered the unlocked, open balcony doors of a ground floor apartment.

Smith was carrying a loaded .22 calibre handgun and D.S. carried a black tire iron with duct tape on it. Nine young people were present just spending the evening socializing. They entered the premises, uninvited and yelled “everybody get on your knees, Terror Squad.” Smith then proceeded to brandish the loaded handgun threatening the nine terrorized individuals with their lives. Smith pointed the firearm directly at some of the victims. They robbed each of them and searched through the premises for other personal items to take and fled the scene.

This was a random home invasion, for the sole purpose of robbing the occupants at gun point. Information 44659696 May 23, 2010 At approximately 2:53 a.m., some three hours after the home invasion, R.W. and M.E., two young males were walking from McDonald’s on 8 th Street when they were accosted by D.S. and Justin Smith who were dressed in black and had their faces masked. This was to be another random street robbery except Smith held the loaded handgun from the home invasion and D.S. was carrying a machete. The victims believed they were about to be robbed, so they split up and ran.

D.S. pursued M.E. into a yard and robbed him of his ball cap. While that was happening they heard a popping sound. Smith ran to where D.S. was and said “let’s go.” When D.S.’s attention turned to Smith, the victim M.E. produced a knife and stabbed D.S. in the lower left back in order to protect himself. D.S. and Smith fled the scene. It turns out that Justin Smith had pursued the victim R.W. and caught up to him. He said “empty your pockets and I won’t shoot you.” R.W. somewhat resisted, a scuffle ensued and Justin Smith discharged the firearm, striking R.W. in the left shoulder at close range.

The bullet penetrated R.W.’s chest, collapsing a lung and damaging his spinal cord. R.W. has lost the ability to use his legs and now requires a wheelchair for mobility. Information 36651880 D.S. admitted that his face was masked during the commission of each of these robberies. Information 44659696

On May 26, 2010 information came to the attention of Saskatoon City Police that D.S. had been stabbed on May 23, 2010. D.S. was arrested as a person of interest and subsequently provided a warned statement admitting that he was the male who robbed M.E. while holding a machete. He advised police that his co-accused Justin Smith had the gun. He further told police that he and Smith and a third co-accused, Arthur Jack, were following the two males with the intention of robbing them. Arthur Jack directed that he and Smith commit the robbery and waited for them in a vehicle while the robbery occurred.

In his warned statement D.S. told police that all the robberies were committed with Justin Smith and Arthur Jack. The robberies were planned ahead of time. Victims were chosen as Smith, D.S. and other co-accused drove around Saskatoon in Arthur Jack’s vehicle. Jack provided masks, weapons and a getaway vehicle to D.S. and his co-accused. Further police investigation lead to a warranted search of Arthur Jack’s vehicle. The search lead to the recovery of numerous weapons and masks, and stolen property relating to various robberies and thefts committed within Saskatoon.

The Crown accepts that, while committing these offences, D.S. claimed to be heavily influenced by Arthur Jack, an individual he referred to as “Big Boss”. D.S. was 17 years old at the time of the offences. Justin Smith was 18 years old. Arthur Jack was 43 years old. Jack would often decide the target of the robbery and many of the offences were committed at Jack’s direction.

Information 36651880 D.S. admits that he was masked during the commission of each of these robberies. [ 28 ] The Court must now review the enumerated factors under . 32(1) of the YCJA , which include the seriousness and circumstances of the offences, his age, maturity, character, background, any previous record and other relevant factors. The material presented to the Court consisted of two days of evidence, the Agreed Statement of Facts, Victim Impact Statements, a Psychological Assessment, Pre-sentence Report and comprehensive written submissions from the Crown and Defence.

a) Seriousness and Circumstances of the offence : [ 29 ] The Agreed Statement of Facts was detailed and clearly established the comprehensive, disturbing and underlying tone of the series of offences. It was a series of at least ten calculated, street robberies over 41 days. They drove around, looking for suitable vulnerable victims during the night time.

It was group violence, premeditated and predatory in nature with the use of weapons, all fueled by their voluntary use of alcohol and drugs. [ 30 ] In other words, it was calculated, gratuitous, vicious street violence culminating on the last night with a terrorizing home invasion followed a few hours later by a shooting of a young innocent individual resulting in his being a paraplegic simply because he had the will to stand up to the most vicious form of street bullying imaginable. [ 31 ] Defence agrees somewhat with the seriousness of the acts however, appropriately put forth the concept, which the Court agrees with, that the idea of “sending a message” is not a relevant consideration for the Court to consider at this stage.

The issue of whether a youth sentence would be of sufficient length to hold the young person accountable is to be based solely on considerations set out in the YCJA. [ 32 ] The consequences to R.W., the shooting victim, were devastating. His present physical limitations speak volumes to the seriousness of the offence. The other victims, though more fortunate, suffered severe emotional trauma which affects some of them, significantly even after two years. Those are matters the Court must take into consideration.

b) The age, maturity, character and background of the young person :

[ 33 ] He was 17 years and 10 months of age when the spree of robberies commenced and 17 years and 11 months of age when the last event occurred. He was only one month short of being 18 years of age, when every citizen is deemed to be an adult in our society. He is presently 19 years and 8 months old. [ 34 ] Extensive interviews were conducted for the purposes of a Pre-sentence Report and Psychological Assessment of D.S. Throughout he was very cooperative , forthcoming and pleasant, while providing information to the professionals.

Of note as well, is that he cooperated with police and gave a full confession within a short few days. [ 35 ] He has displayed mixed or variable levels of maturity. His level of functioning when in the community would be viewed as very poor. He was not able to maintain a steady living arrangement, he was not able to maintain school or work and he clearly was involved in a significant amount of both substance use and criminal activity.

His life in the community appeared to mainly center around substance abuse, criminally inclined associates and criminal activity. [ 36 ] His level of functioning while in custody would be viewed as high. All custodial reports describe him as cooperative, pleasant and as presenting good leadership skills. He seems to follow the program rules and seems able to maintain positive relationships with peers. Certainly he demonstrates the ability to exercise good self-control. A Suicidal Risk was completed while he was in custody and the result suggested he was at Moderate to High Risk for suicidal behaviour.

However, considering the severity of his current charges, emotional responses such as anxiety and depression appear understandable. This assessment also suggested that [DS] has some difficulties with anger management. [ 37 ] He did acknowledge a significant amount of substance usage. He reported using alcohol, marijuana, ecstasy, cocaine and crack cocaine. During the interview, D.S. mentioned that he did not see his substance abuse as a concern.

Reports from Kilburn Hall suggested that D.S.’s reading level is somewhere between grade 3 and grade 5 and that his math skills are consistent with around the grade 3 level. [ 38 ] The

summary in the Psychological Assessment gives a very careful review of his overall character, maturity and level of academic performance:

Summary : [D] (age 18) presents as a youth who struggles significantly with deep feelings of anxiety. His ability to function successfully in the community is very low and so if placed in the community at this time, it is likely he will fail. He has not been able to maintain a living arrangement and has not been able to maintain school or employment. Further, substance abuse has been a concern and he certainly has used a significant amount of substances over the last few years.

During the interview, [D] suggested that his use of substances has not been a problem for him and so he may not respond well to substance abuse treatment activities. Certainly his involvement in Crisis Management while in Kilburn Hall, with Child and Youth Services also suggests that he does not respond well to treatment activities. He has not been in school since age 15 and certainly the intellectual testing would suggest that his lack of schooling has affected him and lowered his intellectual scores.

According to the testing that was completed during the current assessment, his Overall IQ would be viewed as at around the Low Average range but it is much more likely that his true intellectual ability is higher then this but that he struggles in the Verbal Intellectual area due to his limited schooling. His performance in the Verbal Intellectual area was around the Borderline Handicapped range but his achievement in the Nonverbal or Performance area was Average for his age.

His level of functioning during the current assessment suggests that he has a significant amount of self-control and so can follow custody programs successfully. Further, his demonstrated self-control while in Kilburn would suggest that his behaviour, while in the community, was voluntary and self-directed. [ 39 ] The overall theme is that he needs to remain in a controlled environment for an extended period of time in order to bring him to a suitable emotional and academic level of functioning so that he can be successfully reintegrated into society.

He clearly functions better and almost thrives in such a structured environment. This Court interprets that necessary time period to be in the nature of years rather than months.

[ 40 ] Mr. Ron Monteith, Acting Director of Operations at Kilburn Hall Youth Centre testified in an honest and practical way, confirming the finding put forth in the Psychological Assessment. In essence he stated D.S. has been somewhat of a model youth being held in custody. He has been cooperative and attained the highest level of security for youth being held at the facility. He takes

part in all the programming and education offered. Yet he is quite far behind in academic achievement. He is a leader, has progressed extremely well and is respectful. On the other hand he shows a lack of insight or maturity in relation to alcohol and drug abuse. [ 41 ] At page 56, lines 8 - 20 of the transcript he stated: Q That would be unusual by comparison in terms of how people typically end up dealing with their stay at Kilburn Hall? A It can be. It’s difficult for me to say that it’s completely because [D] is also unusual.

As a residence or a facility, we generally don’t have 19 - year old men in our facility so that’s unusual and the fact that he’s shown the maturity and has conducted himself the way he has in the last just over a year has been excellent. Q There’s nothing he could do to - - to make his stay more positive than he has done; is that fair to say? A That’s fair to say. [ 42 ] Some of the following quotes of the evidence given by Mr. Monteith put his age, level of maturity and programming within the youth or adult facilities into perspective: Page 62, lines 2 - 17 Q - - Kilburn Hall? Okay, fair enough.

With a young person sentenced to a youth sentence, but they’re 19, 20, 21, what happens? A That’s the real challenge in terms of the program doesn’t have a differentiating and I guess for lack of better wording, to have 21, 22-year old - - or 21-year old, 20-year old would be treated the same as a 14-year old in custody. Q Now – but the – there is a mechanism that he can be moved to another facility; is that correct?

A It’s correct, but there’s one – there’s more than one level of custody and he would have to be sentenced to a different level of custody whether you’re in Saskatoon at Kilburn Hall or in Paul Dojack Youth Centre, you’re dealing with the same. Page 63, lines 10 - 26, Page 64, lines 1 - 17 Q Can you comment for me about the safety and security of young people - - you have a bit of a unique perspective perhaps. You have the experience in both the adult facilities as well as the young – and in the – in the young people’s facilities – young offenders.

Would it be fair to say that safety issues for the individual that a young person is safer at Kilburn Hall than they would be in an adult facility for security issues, disease issues, even predatory – the issues with respect to older people versus a 19 or 20 year old. Can – could you comment on that? A Well, it’s a difficult one for me to comment on because I was (inaudible) manager in both places and doing it. There’s risk in any correctional facility whether it’s youth or adult. The main concern, I guess, if you’re comparing the two, is placement.

If you’re in a more high secure area, you’re going to be dealing with more, to use your word, predatory type of individuals than if you were in a low

security setting. If I was going to compare Saskatoon Correctional Centre to Kilburn Hall, the incidents themselves aren’t that much different between the two, believe it or not, having worked in both environments and seeing there – the degree or the amount is different, but then when you’re dealing with a 45- bed facility compared to a place with a count of 460, you’re going to expect to see a larger amount in doing it there.

Now, again, if I’m going to compare the two facilities, if you were talking about somethning like the Honour Dorm at the Saskatoon Correctional Centre, you’re dealing with practically zero incidents from – Page 70, lines 13 - 25 Q The other matter I – I just was not very good at keeping notes here, but the question was asked to you about if a youth is sentenced – or sorry, if an adult is sentenced to a youth sentencing, the question was posed to you, do I understand you correctly that there’s no programming within the youth custody system for those unique circumstances of an adult serving a youth sentence?

A That’s correct. Q It would just be mixed in with the – with all the other programming that’s out there? A Yes Page 76, lines 13 - 19 A Absolutely. [D] has had excellent time as I said, and I give him credit for that while he’s been in our centre. My only concern would be as a 21-year old or a 22-year old sitting with 14-year olds and being treated like a 14-year old, what am I doing to his development and what am I doing there? Page 78, lines 9 - 25 A No. As I said, sir, [D] has done good time. He has done well. I don’t see any reason that would change if he was sentenced to YO time.

My concern would be in terms of [D]’s development being, you know, 20, 21 years old in with 14, 15-year old youth and doing it. But in terms of his ability to do good time there, I don’t have any concerns about that.

As I said, now, using the spin on it, where my permanent position is, Saskatoon Correctional Centre, given how [D] has done time at Kilburn Hall, there’s no doubt in my mind that he would be capable of – if he was sentenced to adult time, getting far more programs and far more opportunities to him because if he exhibits the same type of behaviours there that he does with us, he would have all the opportunities because he has done good time. [ 43 ] In the context of his background the Court will review his family circumstances, parenting issues and present support systems in his life. [ 44 ] [D] was an only child to his biological parents however he has nine half siblings whom are older and younger than him.

His parents separated before he was born. Up until he was 10 years of age, [D] remembers being raised equally by both of them in separate residences. When [D] was 10, his mother moved to Calgary with his younger brother. She left [D] in her mother’s care on the reserve and told [D] that she would be back to get him. [D]’s mother never came back and he has not seen her since that day. From 10 - 12 years of age, [D] was raised by his grandmother; he then moved to Saskatchewan with his father and resided with him until he was approximately 15 years of age.

According to [D], he and his father had an argument which precipitated the move out of his father’s residence never to return. [1] [ 45 ] When he left his father he came to Saskatoon and virtually lived on the streets and “couch surfed” for approximately 2 ½ years until being placed in custody. Recently he has talked to his mother and father on the phone.

[ 46 ] More significantly was the testimony given by Patricia Ernst. She related how D.S. became friends with her 30 year old son, Ed. She got to know Douglas and her heart poured out to him when she learnt of his childhood of neglect, substance abuse, physical abuse, and homelessness. As a result she has virtually adopted him and considers him another son. She is a caring, loving person who has the potential of being an incredibly important person in his life. Once D.S. is released from custody he would be welcome to live with them and he would receive a lot of positive support.

She is the one element of hope he has never before had in his life. As she stated: “My door is open to him for life.” [ 47 ] D.S. gave testimony during his sentencing hearing. The one statement he made put into perspective the essence of his feeling of abandonment, helplessness and lack of nurturing and guidance. See transcript: Page 150, lines 19 - 26 Q And how old were you when you mom left you someplace: A Ten years old. Q And you expected to see her in a few hours? A She told me she’d be right back and I haven’t seen her since. Q That’s the last time you saw your mother? A Yeah.

Page 161, lines 11 - 17 Q Don’t you think you’d be rebelling against that eventually and – and not really liking somebody telling you what to do and imposing rules? A No, that’s what I’ve been looking for ever since I was a kid. I need somebody to tell me what’s right and what’s wrong and how to do something and how to solve things.

c) Previous Record : [ 48 ] D.S. has no previous record and is being sentenced for the first time.

d) Any other factors the Court considers relevant:

[ 49 ] There is no doubt D.S. was influenced by Justin Smith. However, Smith was only some four months older than D.S.. Arthur Jack, age 43, was clearly the stronger influential person of the group. He had a significant impact on the two younger perpetrators. The Crown acknowledges D.S.’s initial fear of Jack as legitimate however questions why he did not take any steps to protect or extricate himself from the situation. [ 50 ] It appears after two years he is beginning to recognize the impact his actions had on his victims.

His initial lack of understanding of the consequences of his actions and the role his substance abuse had, discloses a somewhat internal struggle that requires lengthy therapeutic intervention. [ 51 ] His behaviour while on remand has been exemplary. III ANALYSIS AND CONCLUSION ON THE ISSUE OF YO VERSUS ADULT SENTENCING [ 52 ] The aggravating factors are reflected in the details of the robberies themselves and need not be further interpreted. [ 53 ] In addition there are a number of positive aspects to the total assessment.

What the Court does find reflective in D.S.’s character is that, when he was arrested, he was forthright and promptly gave a confession and took responsibility for what he had done. One level of concern is his lack of understanding of his level of substance abuse. This can be dealt with by further therapeutic intervention. The Court accepts his evidence that he is truly remorseful for what he has done. He acknowledges the devastating effects his actions had on all the victims and especially R.W.

One of the most difficult aspects for the Court is trying to find adequate words to acknowledge the suffering R.W. has experienced and will have to deal with the rest of his life. [ 54 ] Professionals have described mixed or variable levels of maturity of D.S. He has been somewhat of a model inmate and is responding to programming, when in a structured, controlled, institutional environment. Of note is that D.S. was wearing a suit at his sentencing hearing. It turns out this suit was provided to him by the staff at Kilburn Youth Detention Center.

This can only be interpreted as a reflection of his positive behaviour while in custody. [ 55 ] He has plead guilty and clearly was a party to the home invasion and shooting of R.W. The Court must note however there is no evidence that he was in possession of the firearm at anytime during the last two incidents. [ 56 ] Section 3(1)(

b) provides that the criminal justice system must be separate for young persons and must emphasize, under s. 3(b)(ii), “fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity.” The Court is satisfied that, in this case, D.S. had a greater dependence and greatly reduced level of maturity than one would expect from a usual seventeen year old. [ 57 ] Turning to the particular sentencing principle set out in s. 38, also reproduced earlier, it is noted that the purpose of a sentence under section 38(1) of the YCJA stresses holding a young person accountable for what he or she has done, by the Court imposing just sanctions for that young person, that will best protect society by promoting his or her rehabilitation and reintegration into society.

Section 38(2) requires the Court to determine the sentence in accordance with the sentencing principles set out therein, as well as those in s. 3. Defence counsel has cited numerous decisions in support of imposing a youth sentence. Similarly, Crown counsel has cited cases which, in their view, support the imposition of an adult sentence.

What these cases establish is that the decisions vary widely, that each offence and offender is unique, and that each case must be decided based on the factors set out in s. 72. [ 58 ] Defence counsel strongly advocated that, although D.S. has been in custody since May 27, 2010, a period of 653 days to the sentencing date of February 23, 2012, the Court can take that time into consideration in arriving at a proper sentence, without giving credit for it.

[59] The argument is that a custody and supervision order of 3 years from February 23 would be of sufficient length to hold D.S.accountable for the offending behaviour. [60] A mathematical calculation brings remand time to 1 year 9.6 months. Justin Smith was given credit for remand time at a ratioof 1.5 to 1. Taking that principle into account for a young offender the Court would be satisfied to equate D.S. remand time in thesecircumstances to a youth custody order equivalent to three years.

In essence the Defence argument is, and the Court concurs, that afurther youth sentence of 3 years custody and supervision would effectively be the equivalent of a sentence of 6 years for the offences towhich he had pled guilty. [61] In R. v. R.L. 2012 SKPC 22 , 2012 SKPC 022, Judge Morgan of this Court dealt with the concept as follows: [64] As the issue of the remand time has some significant bearing on the question I must address under s. 72 of the YCJA, I will deal withthat first. As s. 38(3)(

d) states, “the time spent in detention by the young person as a result of the offence” is a specific factor I am totake into account in determining a youth sentence. [65] In R. v. N.W.P., 2008 MBCA 304, Mr. Justice Monnin was dealing with an appeal of a young person, who despite having spent 238days in custody prior to his plea and sentence, received the maximum penalty available under the YCJA, without receiving any deductionfor the pre-sentence custody that had been served.

Although the sentencing judge was dealing with a joint submission, a factor not inplay in this decision, the sentencing judge noted that “I do not think that time in detention should result in less time in custody because ofthe circumstances of the offence and the consequences of the offence.” [66] Mr.

Justice Monnin found what he referred to as “tacit acceptance” by all members of the [Supreme Court] in the decision R. v.B(D.), supra, in which the Supreme Court of Canada upheld the sentencing judge, who had held that “in my view, the maximum periodof a youth sentence is necessary to achieve the desired ends of the rehabilitation programme, and for that reason I have not given creditfor the one year period of pre-trial custody” (at para. 10 of N.W.P.). [67] In my view, in assessing whether or not a youth sentence would be of sufficient length to hold a young person accountable, it may beproper to consider the pre-sentence custody, without formally applying credit for it, if not crediting the pre-sentence custody time servesa valid and appropriate purpose under the sentencing principles of the YCJA. [68] As noted earlier, the decision is to be made by making a proper “evaluative decision”, an “informed decision”, that weighs all thefactors, in effect a balancing of competing interest and principles.

IV CONCLUSION [62] The Court has spent considerable time reviewing all the evidence, the reports filed during the sentencing hearings, theexceptional written briefs from both counsel, and reflecting on the totality of all the principles that must be considered and weighed.

Incompleting that process the Court must never lose site of the significant trauma caused to the victims. [63] Having considered the matter, and in looking at the proper and available sentencing options under the YCJA, the Court is ofthe opinion that a maximum youth sentence will be of sufficient length to hold the young person accountable for his offendingbehaviour. The presumption of “diminished moral culpability” is not rebutted and the Crown’s application is denied.

The Court ordersthat D.S. is not liable to an adult sentence and that a youth sentence will be imposed. [64] In the Court’s opinion, in order to achieve the desired goals of accountability, together with rehabilitation and reintegration,the maximum allowable youth sentence must be imposed from the actual date of sentencing. For that reason, the Court will not givecredit for any pre-sentence custody which D.S. has served.

[ 65 ] The Court now invites counsel to make final submissions before imposing formal sentence. _______________________ D.A. Lavoie, J [1] Psychological Assessment, April 6, 2011 - Family Circumstances and Parenting