Her Majesty the Queen ) T. Rambow, for the Crown ) - v. -, 2011 MBPC 85

2011 MBPC 85 THE PROVINCIAL COURT OF MANITOBA FLIN FLON Centre BETWEEN: Her Majesty the Queen ) T. Rambow, for the Crown ) - and - ) ) C. G. ) T. Killeen, for the Accused ) ) Judgment delivered: October 21, 2011 YOUTH MATTER-RESTRICTION ON ACCESS L. ALLEN, P.J. [ 1 ] The young offender, C.G., has entered guilty pleas to Dangerous Driving Causing Death and Dangerous Driving Causing Bodily Harm. These charges arise out of events which took place on August 8th, 2010, in Flin Flon, Manitoba.

At the time of this incident, C.G. was 15 years old; she is now 17 years old. [ 2 ] On the day in question, C.G. turned down a ride to her employment with a friend and instead took her brother’s car. [ 3 ] C.G. did not have a driver’s permit. After completing her work shift at a local restaurant, C.G. connected with several friends and drove out to a nearby lake. At some point these young people headed back to Flin Flon in two cars. The lead vehicle was driven by C.G., with passengers 16 year old T.S. and 15 year old K.C.

The return trip developed into a high speed chase which was later described by participants as a “cat and mouse chase” with the two vehicles close together for approximately one half hour, driving through the streets of Flin Flon. It should be noted that Flin Flon is a small city, built almost entirely on the rock of the Canadian Shield.

The streets are hilly, steep, winding, and sometimes narrow. [ 4 ] There was evidence before the Court that the second car, driven by another young person, was tailgating C.G.’s vehicle and this tailgating may have either frightened, angered, or both, C.G., resulting in her speeding up to elude the vehicle which was behind her. [ 5 ] The Prosecutor’s Information sheet was filed as Exhibit 2 in these proceedings and contains a statement from A. T., one of the participants, a young man who was a passenger in the second car driven by K.W.

In his statement, he told police that K.W., B.B., and himself, met with C.G. and two other young people, T.S., and K.C., at Phantom Lake. [ 6 ] On leaving the lake, C.G. told the driver of the second car to follow her. He advised that K.W. was driving the vehicle he was in, and that she was following C.G.’s vehicle “pretty much on her tail.” He stated that both vehicles were going fast. They continued to follow the vehicle for approximately half an hour, driving around various streets in town.

A.T. advised that K.W. attempted to scare C.G. by pulling out to pass her on the perimeter road which surrounds the city of Flin Flon. K.W. then had to pull back into her lane to avoid hitting an oncoming vehicle. [ 7 ] A.T. stated that he was concerned about how fast they were going and that he kept telling K.W. to slow down. He advised that as they approached the location where the accident occurred, C.G.’s vehicle was going “way faster than the vehicle I was in.” He observed C.G.’s vehicle hit gravel and lose control. He then stated that the vehicle went over the curb and into trees.

After the accident they stopped their vehicle and went to help the people in the damaged car. A.T. advised that C.G. was driving the vehicle involved in the accident. T.S. was in the passenger seat and K.C. was in the backseat. [ 8 ] A statement to the RCMP was taken from T.S. who says that on the night in question, she, K.C., M.D., and C.G. went driving in C.G.’s brother’s car. She stated that C.G. has driven this car before even though she doesn’t have a driver’s license. She also said that at some point, the young people agreed to meet at Phantom Lake.

She also told police that once at Phantom Lake, she and C.G. got out of the car and spoke with B.B. and K.W. They agreed to meet up again later that evening. C.G. then left the parking lot and was followed by K.W., who was tailgating her. She said that this made C.G. angry. T.S. indicated that at one point during the chase, the two vehicles met in an alley and that K.W. laughed at C.G. and that this further angered C. G. [ 9 ] T.S. further stated that they ended up driving down Manitoba Avenue at well over 100 kilometres per hour with K.W. following close behind.

She also went on to advise the RCMP that both she and K.C. were yelling at C.G., telling her to slow down. She said that they went over a hump in the road and that it felt like they were no longer on the ground. She said they started to swerve; the car left the road and then hit a tree. She saw fire through the vents in the dash and was pulled out of the car by a person who was present

at the accident scene. [ 10 ] In reference to the meeting of the two vehicles in an alleyway, the police spoke to Troy Hilts, an area resident. Mr. Hilts provided a statement to the RCMP wherein he said that on the date of the incident, he was in his backyard trimming weeds when his neighbour, Raymond Boudreau, approached him and asked him if he had seen a vehicle come up the alley. He looked up and saw a grey coloured car turning around at the dead end portion of the alley near his house. The vehicle then came towards him.

At the same time, a black Ford Edge was coming up from the alley towards him and parked behind his house. He stated that there appeared to be three females in the grey car and two females, as well as a third person, in the black vehicle. He stated that the people in the black vehicle were laughing and pointing at the people in the grey vehicle. The two vehicles were briefly nose to nose before the grey vehicle turned west, going down the alley.

As they drove by they were pointing and laughing and they gave the girls in the black vehicle the finger. [ 11 ] It should be noted that C.G.’s vehicle is the grey vehicle. [ 12 ] Mr. Hilt’s statement continued, saying that the grey vehicle, followed by the black vehicle, proceeded down the alley going fairly quickly and turned south on Dominion without stopping. Mr. Hilts advised that the expression on the faces of the girls in the grey vehicle was that they had been caught. He did not notice any anger between the people in the vehicles and said that it looked like they were playing a game.

He said that he did not see the driver of the grey vehicle make any gestures towards the people in the black vehicle. He stated that about to ten to 15 minutes later he heard the fire truck drive by. [ 13 ] Police also spoke to Raymond Boudreau, who in his statement says that he observed a Hyundai Elantra (it should be noted that the vehicle C.G. was driving was a grey Hyundai Elantra) with a couple of girls in it, drive up Spruce Avenue at a fairly high rate of speed. The vehicle then turned down the alley and came to a dead end at which time it again turned around and returned up the lane.

He then noticed a black Ford Edge with what looked like a female driver approach the Hyundai Elantra. The two vehicles met and the drivers looked like they were laughing at each other. The Elantra then proceeded down the hill, followed by the Ford Edge, travelling at a high rate of speed. Neither vehicle stopped at the stop sign. [ 14 ] Reading again from Exhibit 2, the Prosecutor’s Information Sheet, RCMP investigators summarized the circumstances of this accident.

At page three they say: “Based on the scene and the statements provided, police believe that C.G. was driving a 2003 Hyundai Elantra, with passengers K.C. and T.S. Following them in a 2008 Ford Edge was driver K. W. and passengers B.B. and A.T. The two vehicles had met at Phantom Lake and proceeded to drive around town for a period of time. The vehicle driven by K.W. was reported to be driving very close behind the vehicle driven by C.G. At one point both vehicles met near the back alley behind Dominion Boulevard.

The people in the vehicles were reported to be laughing at each other and giving each other the finger. The vehicles then turned south down Dominion Boulevard, which turns into Manitoba Avenue. The vehicle driven by C.G., which was traveling at a very high rate of speed, lost control, crossed the street, went over the curb, onto the lawn of 121 Manitoba Avenue before colliding with a tree, killing K.C., seriously injuring both T.S. and C.G. The speed limit on Manitoba Avenue is 50 kilometers per hour.

The statements taken from witnesses indicate that C.G. was operating the vehicle as fast as 100 kilometers an hour leading up to the accident.” [ 15 ] Police learned through autopsy results that K.C. died of multiple injuries to her chest, abdomen and spine. T.S. suffered a broken left leg, a broken left arm, and fractured vertebrae. C.G. suffered a broken leg and a broken arm. Both survivors, C.G and T.S., have suffered long term difficulties from their injuries. C.G. was in a wheelchair for four months and missed a year of school while dealing with the physical and emotional aftermath of this accident.

T.S., more than a year later, still suffers severe physical limitations. [ 16 ] K.C.’s mother, E.S. read a Victim Impact statement wherein she said that her life and the lives of her immediate family have been devastated by the tragic loss of their child. She talked about her daughter and her aspirations to theatre and music. She tried to explain the grief that she felt over the loss of her daughter’s daily presence and the fact that her child has been denied her future. [ 17 ] It has been said that there is no more profound loss than the sudden loss of a child.

E.S.’s Victim Impact statement gave all who heard it a glimpse into the devastation of that loss. [ 18 ] The victim’s aunt, N.B., also read a Victim Impact statement. She spoke about how others in the extended family had been disrupted and how the child’s grandmother is upset by the mere mention of her granddaughter’s name. She also spoke as to how her husband’s moods fluctuate between pain, guilt, and anger and how upset and angry her grandson is. She said: “It looks so easy on paper, but it’s difficult to get through the stages of grief.

We seem to go backwards as much as we go forwards.” [ 19 ] The Crown takes the position that due to the aggravating circumstances and seriousness of this incident, a custodial sentence is called for. The Crown argues that a custodial sentence is available because these charges meet the criteria of the Youth Criminal Justice Act under either subsection (

a) or (

d) of Section 39(1). The Crown seeks a deferred custodial period, followed by the two year maximum allowable period of probation. [ 20 ] Defence counsel concedes the availability of a custodial sentence through Section 39(1)(

a) of YCJA , but argues that a custodial sentence is not called for. Counsel suggests that in light of this young person’s lack of previous criminal involvement and the circumstances of her current situation, there is no reason to believe that she could not be adequately controlled and monitored by probation alone.

Counsel also points out that this young woman’s father was killed in a motor vehicle accident only five weeks before the events at bar, and that this recent loss may have contributed to the charges with which C.G. deals today. [ 21 ] Turning now to the applicable sentencing principles as set out in the Youth Criminal Justice Act . The general principles of sentencing for Youth Criminal Justice matters are set out in

Section 3 of the YCJA . These principles dictate that the youth justice system is intended to provide the public with long term protection by positively dealing with the circumstances that led to the commission of the

crime by the youth and by focusing on the “rehabilitation and reintegration” of the youth, and by “ensuring that the youth is subject to meaningful consequences for his or her offence.” Furthermore, this system must be kept separate from the adult system and must emphasize the following:

Section (

a) The rehabilitation and reintegration of the young person; and (

b) The need to hold the youth accountable given the person’s greater dependency and reduced maturity level. [ 22 ] These principles as set out in the legislation, indicate that measures imposed against a youth must be applied in a “fair and proportionate manner” and they must in that manner hold the young person accountable for the offence by reinforcing respect for the values of society, by repairing the harm done to the victims of the crime and to the community, and by subjecting the youth to meaningful measures given his or her needs, and level of development. [ 23 ] This legislation sets out the principles that must be considered during the sentencing process.

Section 38(1) of the Youth Criminal Justice Act says that: “The purpose of sentencing under

Section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.” [ 24 ] In order to accomplish these objectives, this legislation sets out other principles in addition to those from

Section 3 that must be followed when imposing a youth sentence. The relevant principles are from Section 38(2): “(

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 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 circumstance must be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and (e) (

i) the sentence must be the least restrictive sentence that is capable of achieving a 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 the victims and the community.” [ 25 ] To that end, Section 38(3) of the Youth Criminal Justice Act sets out a number of factors which must again be employed in sentencing a youth. That

section reads: “That 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.” [ 26 ] The degree of participation in this situation is a complete degree of participation. This is an event which came about as a result of a decision by C.G. to drive without a driver’s license and to drive in a dangerous manner. [ 27 ] Continuing with the Subsections of (38)(3): (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention; (

e) the previous findings of guilt of the young person;” which is relevant to this sentencing because C.G. is before the Court with no previous involvement with justice system, 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. [ 28 ] Certain prerequisites must be met before a custodial sentence can be ordered. One of the issues before the Court is whether these criteria have been met.

Section 39 states as follows: s.39(1) A youth court shall not commit a young person to custody under

Section 42 (youth sentences) unless (

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

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

section 38. (2) if any of the paragraphs 1(

a) to (

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

section under

section 42 (youth sentences) unless the Court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the

circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purposes and principles of

section 38. [ 29 ] In this case, the alternative to custody that has been raised by defence counsel is a period of probation.

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

a) the alternatives to custody that are available; (

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

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.” [ 30 ] Counsel for the crown argues that in this case a custodial disposition should be imposed. In particular, the Crown suggests that the appropriate sentence is a deferred custody and supervision order, available under Section 42(2)(p). That

section states that a youth criminal court judge: “may make a deferred custody and supervision order that is for a specified period not exceeding six months, subject to the conditions set out in Subsection 105(2) of the Legislation.” [ 31 ] That form of deferred custodial order may be made according to subsection 42(5) if: (

a) the young person is found guilty of a offence that is not a serious violent offence (In this case the Crown has elected not to not to apply for a serious violent offence designation), and; (

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

Section 38 and the restrictions on custody set out in

Section 39.” [ 32 ] As earlier stated, Section 39(1)(

a) of the Youth Criminal Justice Act states that a custodial sentence cannot be ordered unless certain criteria are met. These criteria have come to be known as the “doors to custody”. [ 33 ] I am satisfied that that these offences before the court do qualify as violent offences. Not only has counsel conceded this position, but I take note of the Alberta Provincial court case of R. v. A.J . This is a 2010 decision of Alberta Provincial Court Judge Dalton, who conducted an exhaustive examination of whether the offence, dangerous driving causing death, qualifies as a violent offence.

Judge Dalton concluded that it did. At paragraph 49 of her judgment, she refers to the Supreme Court of Canada case of R. v. C.D. , R. v. C.D.K. , which is a 2005 decision of the Supreme Court of Canada, and she says: “I believe the Supreme Court of Canada in R. v. C.D. and R. v. C.D.K. did intend to capture the present category of cases, meaning, including dangerous driving causing death, within the ambit of its definition of a violent offence.

In support of this view, I note that the court deliberately discarded the forced based or intention based definition of a violent offence that was espoused by Lebel, J. in his dissenting opinion.” [ 34 ] In the Alberta case where a death resulted from somewhat similar facts to the facts in the case before the court this afternoon, Judge Dalton found that the young person had committed a violent offence and that the door to custody was open. [ 35 ] I also note the Saskatchewan 2010 Provincial court case, R. v.

G.(S) , again a similar fact situation to the one before the court, which were found to be a violent offence opening the door to custody. [ 36 ] As earlier referred to under the Youth Criminal Justice Act Section 38(2)(b) “a disposition must be similar to those in the region involving similar persons and circumstances.” [ 37 ] To that end, defence counsel referred the Court to three cases. [ 38 ] In R. v. S.M.V. , a 2003 decision of the B.C. Youth Court, a 17 year old licensed driver was held responsible for a collision which resulted in the death of three people.

The offence was designated as a serious violent offence and because of that designation, a deferred custodial sentence was not available. No details of the driving were provided and I was unfortunately unable to find details or determine the circumstances of the driving. I was able to determine that in that case the sentence was two years of probation. [ 39 ] Defence counsel also referred to another British Columbia case, R. v. A.J.N. from 2004. That case referred to the above noted R. v. S.M.V. In the R. v.

A.J.N. case, a licensed but inexperienced young person was driving 60 to 80 kilometres per hour in a 50 kilometre hour zone, failed to stop at a stop sign and four people died. Looking at the circumstances of that case, I do not consider the driving in that case to be as serious as the circumstances before the Court this afternoon. Once again, in that case, the youth received a probationary sentence. [ 40 ] The final case referenced by defence counsel is the Manitoba case of R. v.

F.S.P. , a 2007 decision of Judge Harapiak of the Provincial Court of Manitoba, who gave a two year probationary term to a youth who had at a police check stop, jumped into the vacant driver’s seat and driven off. The youth was driving too fast on a gravel road when the car she was driving flipped and two people died.

Again, this case resulted in a designation of a serious violent offence and a two year period of probation was imposed. [ 41 ] Once again, I am not satisfied that the driving circumstances in that case are equal in seriousness to the circumstances before the Court today. [ 42 ] Additional notable cases with similar facts circumstances include R. v. L.E.S. , a 2007 decision of the Provincial Court of Saskatchewan, wherein a young person with no criminal record, a positive pre-sentence report, and found to be remorseful, was found to

be driving between 72 kilometres and 81 kilometres per hour in a 50 kilometre zone. This young person intentionally tried to “drift” the car that he was driving. This young man was also drinking and had a breathalyser reading of 140. These circumstances are not completely consistent with those before the court because of the element of alcoholic consumption. However, in that case, that young driver was given a 10 month closed jail sentence followed by a five month open period of jail. Also notable in that case is that the driver had been begged by the passengers in his vehicle, to slow down.

Another aggravating fact in that case was the driver’s level of alcohol intoxication and the accused’s egregious driving. Once again, this is another case that considered the S.M.V. decision from B.C. [ 43 ] In R. v. G(

S) from Saskatchewan 2010, a young person crossed a solid line to pass vehicles ahead. He had been going to a social event involving other young people. They had all left a parking lot at an arena. They were driving to another location and there were other vehicles ahead. The speed limit on the highway was 100 kilometres an hour. His vehicle was said to have reached a speed of 121 kilometres per hour. When he pulled out to pass, despite the solid line, his vehicle struck the vehicle of one of the other young people up ahead who were turning left, leaving three people killed.

He was convicted of dangerous driving causing death. This young person was the subject of a pre-sentence report, which put him in the lowest category of risk. He had no previous record. At paragraph 41 of that decision from Saskatchewan, Judge Matsalla says: “While it may be appropriate in some circumstances for the Court to order a non-custodial disposition, it seems to me that a custodial disposition is appropriate.

A less restrictive sentence would not satisfy the principle that the sentence should reflect the seriousness of the offence.” [ 44 ] At paragraph 42 of that judgment, Judge Matsalla went on to say: “There could be no doubt that the offence in this case is most serious. An offence is serious if a victim suffers a significant injury, even more so if a victim loses her life.” [ 45 ] In the case of R. v.

N.N. which is an Ontario Court of Justice case from 2004, a deferred custody order was made for a youth convicted of two counts of driving dangerously causing death, and two counts of driving dangerously causing bodily harm. In that case the circumstances were that the offender had driven at a high rate of speed on a busy street near a school. The offender was described as being “not a bad person,” remorseful and was not a risk to re-offend.

Additionally, it was noted that he had the support of his community and his family. [ 46 ] That young man was given a six-month deferred sentence, followed by 19 months of probation, 150 hours of community service work and a ten-year driving prohibition. This decision was appealed to the Ontario Court of Appeal. The appeal was limited as to the driving prohibition, but the Ontario Court of Appeal commented that the sentence itself was consistent with the “principles of proportionality and meaningful consequences”. [ 47 ] In R. v.

H.(D.J.) , a 16-year old driver was tailgating another vehicle on a city street, pulled out to pass at an intersection going more than 90 kilometres per hour. The young driver lost control, hit a tree, and two died and three were injured. This young person was sentenced to six months of deferred custody with two years probation, and a six-year driving prohibition. In the Alberta case earlier discussed of R. v. A.J., a 17-year old driver was travelling at 100 kilometres per hour in a 60 kilometre zone, lost control of the vehicle he was driving, and a passenger died.

That decision of Alberta Judge Dalton ordered two years of probation, but determined that custody was not necessary. [ 48 ] Two less specific cases are worth noting. One from the New Brunswick Court of Appeal, R. v. K.G.B. [2005] at paragraph 52, the judgment reads: “The legislators recognize that in some circumstances custody is the only just sanction that will hold a youth accountable for the offence committed.

The only sentence that will have meaningful consequences and that will hold a youth accountable, and that will promote the youth’s rehabilitation and re-integration into society.” [ 49 ] That case at paragraph 54, goes on to say: “The inherent seriousness of an offence is necessarily a consideration when determining whether a non-custodial sentence would be inconsistent with the purposes and principles set out in

Section 38 of the Youth Criminal Justice Act .” [ 50 ] R. v. M.(H.A.) is a 2003 decision of Judge Swail of the Provincial Court of Manitoba. This is not a driving case. This case involved a young man with no previous criminal record who kicked his victim in the head while the victim was on the ground. This case is relevant to the matter at bar because the young man’s father had died just before this incident and Judge Swail made note of that at paragraph 57 of his judgment: “There may have been some unique and unusual physiological offset relating to the victim’s death which played a

part in this uncharacteristic violence on this occasion.” [ 51 ] The death of the father of the young offender was an element in that case. At page 18, paragraph 18, Judge Swail said, (and I should mention, this young man had no previous record for any form of violence) at paragraph 56: “The only alternative to custody which was raised was a period of probation.

In my view this is not a reasonable alternative to custody because it would constitute a sentence which would not be proportionate to the seriousness of the offence and the degree of responsibility of the offender for the offence.” [ 52 ] In that case, the young offender was sentenced to a custodial sentence of three months, which he had already served, and a going forward six-month deferred sentence. [ 53 ] I earlier read from section 38(1) of the Youth Criminal Justice Act which sets out that one of the purposes of sentencing is to hold the young person accountable for an offence through the imposition of just sanctions that have meaningful consequences.

This

principle of accountability was looked at by the Ontario Court of Appeal in the case of R. v. O.(

A) in 2007. At paragraph 47, the Ontario Court of Appeal said: “In our view for a sentence to hold a young offender accountable in the sense of being meaningful, it must reflect as does a retributive sentence ‘the moral culpability of the offender, having a regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct’, we see no other rational way for measuring accountability.” [ 54 ] Now looking at section 38(3) of the Youth Criminal Justice Act , subsection (a), looks at the degree of participation of the offender.

In this case, the degree of participation as discussed earlier is complete. This young offender chose to drive illegally. She went to work and had her entire work shift to think about the fact that she was driving illegally. She could have changed her mind about that and phoned someone to come and get the car, but she continued to drive illegally. She also had an opportunity to think about that during the “cat and mouse game”, as that game stopped at some point wherein the parties met nose to nose in an alleyway. Nevertheless, the activity continued.

Evidence from the witnesses indicates that this driving behaviour took place over a period of one- half hour, which gave adequate opportunity for C.G. to realize at some point that what she was doing was dangerous. Basically, she was in a circumstance wherein she was oblivious to the dangerous situation within which she placed herself, her passengers and members of the public. [ 55 ] Subsection (

b) of

section 38 emphasizes harm done to victims and whether the harm was foreseeable. As previously discussed the harm in this case was death to K.C. and significant injuries to T.S. Serious consequences were clearly foreseeable from this manner of driving in the area where it occurred. [ 56 ] Subsection (

e) of

section 38 requires that consideration be given to whether the young person has any previous criminal record. C.G. does not. [ 57 ] Subsection (

f) of

section 38 requires the sentencing court to consider any other aggravating or mitigating factors. It is clearly aggravating that C.G. was driving without a driver’s license, had never been tested to qualify as a driver, never met the qualifications that are required of anyone who gets behind the wheel, and by driving without a license she was exposing her passengers to her inexperience. It is also aggravating that she was driving in a clearly dangerous and reckless manner.

It is aggravating that circumstances provided her a chance to alter the course of events, particularly at the time when the vehicles involved stopped in the back lane. It is aggravating that her passengers were yelling at her to slow down and she did not. It is also aggravating that this was not the first time that she had taken a car despite the fact that she was not a licensed driver. [ 58 ] In terms of mitigating factors that the court takes into consideration: the recent death of her father has to be considered in terms of an appropriate sentence.

It is mitigating that she has entered a guilty plea and that she has accepted responsibility and accordingly, frees the individuals involved from having to come to court and testify. It is mitigating that she does not have a criminal record, and that she has no prior involvement in the justice system. It is mitigating that this is an impulsive, reckless act, not one that was premeditated. It was a spur of the moment situation which resulted in this horrible tragedy.

It is mitigating that C.G. has demonstrated remorse, and that she has demonstrated that remorse both by the meaningful and forthright way she spoke in court and also in her interview with the probation officer who prepared the Pre-sentence Report that is before the court. [ 59 ] The court has also considered the Pre-sentence Report which has been filed as an Exhibit in this disposition.

This report contains several positive observations about C.G., one of which of course, is the overall opinion that there is a reasonable likelihood that she would comply with conditions of a Probation Order. [ 60 ] Under section 39(2) of the Youth Criminal Justice Act , even if the sentencing judge finds, as I have, that the door to custody is open, that does not mean a custodial sentence has to be put in place. All available alternatives have to be considered. Those available alternatives have to be considered reasonable and consistent with the sentencing principles of

section 38 and the other Youth Criminal Justice sentencing principles. It is also required that the disposition of the court has to be the least restrictive sentence required to meet the principles of sentencing. And finally, that the disposition has to be proportionate to the seriousness of the offence. [ 61 ] As stated earlier, counsel argues that C.G. has not shown any reason why she would not cooperate with probation sanctions.

She has not been on probation before, she has not failed to comply with conditions of her release, and these factors have to be considered in determining an appropriate disposition. [ 62 ] The court has looked at the alternatives proposed and considered the suggestion that an appropriate sentence would be a period of probation. I am not satisfied that a period of probation alone adequately meets the principles of youth sentencing in this case.

Having found that the “door to custody” is open, I am satisfied that a custodial sentence is required to both reflect the seriousness of the circumstances, the conduct of the offender and the consequences of the offending behaviour. In light of all of the above, I feel that a custodial sentence is the only appropriate sentence which meets the requirements of the sentencing provisions. Accordingly, I am placing C.G. on a period of deferred custody for six months. I will list the conditions of the Order.

This period of deferred custody will be followed by a two-year period of probation. [ 63 ] I should add that in dealing with the youth criminal justice principles requiring the least restrictive sentencing provision, I recognize that a period of probation as opposed to a custodial sentence in the form of a deferred sentence is arguably less restrictive. However, a deferred sentence is in reality not that much more restrictive to a young person in that the young person continues to live in the community and would be living under much the same form of restraint as she would under probation.

Accordingly, I am not convinced that the nature of restraint pursuant to a deferred order is that much greater than that under probation other than that the young person lives with the possibility of being breached and going into an actual jail setting. [ 64 ] Pursuant to

section 105(

s) of the Youth Criminal Justice Act , the accused is sentenced to a deferred period of custody for six months. She will be required to keep the peace and be of good behaviour. She will be required to appear before the court as required by the court. She will be required to report to the provincial director within two days, and then be under the supervision of the provincial director, or a person designated by the youth criminal justice court. She is required to inform the provincial Director immediately upon

being arrested or questioned by police. She will be required to report to police as instructed by the Provincial Director. She will be required to provide an address, and report immediately to the court or the Provincial Director any change of address, any change of school circumstances, living circumstances, or any change that may affect her ability to comply with the conditions of this Order. [ 65 ] A further condition of her deferred custody will be that the accused not own, possess, or have in her control any weapon, ammunition, prohibited ammunition, prohibited device, or explosive device.

She will be required as a condition of this Order that she comply with any reasonable instructions that the Provincial Director considers necessary, in respect of any condition of this Order. She will be on a curfew from 9:30 in the evening to 7:00 in the morning, except for medical emergencies or if she is in the direct company of her mother. She will be required to attend whatever counselling as directed by the Provincial Director or a designate of the Provincial Director. She will be required to attend school regularly or actively seek or maintain employment.

She will not be allowed to operate any motor vehicle on any street, road or highway in Canada, and she is to provide a DNA sample as I am satisfied that the circumstances of this offence call for the provision of a DNA sample. She will be required within two weeks of today’s date to report to an RCMP detachment and provide a sample of her blood for the purposes of the DNA Registry. I am satisfied that this is an appropriate request on the part of the Crown and it is in the best interests of the maintenance of justice that this sample be provided. [ 66 ] Mr.

Rambow has asked on behalf of the Crown that I prohibit the accused from driving for a period of six years. He has argued that the driving prohibition is limited to three years for each event and that it should be doubled in this case because there were two charges. Mr. Killeen in response has suggested that more appropriately this matter should be looked at as one event. I prefer the latter argument and I am prohibiting the accused from driving any motorized vehicle on any road, street or highway in Canada for a period of three years from today’s date.

The accused has lost the privilege of driving as a result of what has transpired. [ 67 ] The accused’s period of deferred custody will be followed by a period of two years of probation. The terms of her probationary period will require that she: keep the peace and be of good behaviour, report to the Probation Officer within two days of termination of her deferred custody, and thereafter as required by her Probation Officer. During the period of her probation, she is not to operate any motorized vehicle on any road, street or highway in Canada.

I must caution the accused that it is a very serious offence to drive when prohibited and I would counsel the accused not to consider doing that during her period of prohibition. [ 68 ] The accused’s probation conditions will require that she complete whatever counselling is recommended for her by her Probation Officer. She will be required to do 140 hours of community service work and that community service work is to be completed within 16 months. [ 69 ] The accused must understand the implications of a deferred sentence.

This is a sentence wherein the accused has to be very careful to comply with the set out conditions. If the people supervising her want her to do counselling or whatever they reasonably request of her, she must do that. [ 70 ] The Crown had requested that a curfew provision be included in the accused’s probation. However, I am satisfied that C.G. is being held accountable by the fact that she has now been given a custodial sentence and that she is being placed on a fairly rigid, for a 17-year old girl to have to be in at night at 9:30 is a fairly difficult restraint, and I am satisfied that that is adequate.

I do not look on C.G. as someone who is going to be before the court again. This is a terrible tragedy that has tainted her life and obviously it has also tainted the lives of the people who were close to K. and T. “Original signed by:” L. Allen, P.J.