R. v. A.G., 2019 ONCJ 211

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. A.G. , 2019 ONCJ 211 DATE: 2019 04 09 COURT FILE No.: Belleville, ON BETWEEN: HER MAJESTY THE QUEEN — AND — A.G., a young person Sentencing Hearing Before Justice E. Deluzio Heard on March 1, 2019 and April 5, 2019 Reasons for Sentence released on April 9, 2019

M. Lunski............................................................................................... counsel for the Crown E. Kafka.................................................................................... counsel for the accused A.G. Deluzio J.: Introduction [ 1 ] On August 27, 2017, shortly after 1:00 a.m., then 16 year old A.G., drove his grandfather’s 2007 GMC Sierra pickup truck the wrong way, west bound in the east bound lane of Highway 401. He did this on purpose.

He wanted to commit suicide by causing a head on collision with a transport truck. [ 2 ] At the same time, a young engaged couple, Danielle Scully and Matthew Scime, both 30 years old, were travelling east bound on Hwy 401 in the driving lane. They were driving in a car, not a transport truck. Mathew was driving and Danielle was in the front passenger seat, holding her cat on her lap. [ 3 ] A.G. drove his vehicle, at a high speed of approximately 160km/hr, head on, into the vehicle driven by Matthew and Danielle. Danielle and her cat were killed instantly.

Matthew was seriously injured but survived. [ 4 ] On September 28, 2018, A.G. entered a plea of guilty to one count of manslaughter, one count of criminal negligence causing bodily harm, and one count of taking a motor vehicle without consent. [ 5 ] A.G. is now just weeks shy of his 18 th birthday. His date of birth is […], 2001.

He has been in custody since his arrest on August 31, 2017, a period of almost 20 months. [ 6 ] The main issue on this sentencing hearing is whether A.G. should receive a youth sentence or an adult sentence. [ 7 ] The Crown has applied under Section 64(1) of the YCJA and asks that A.G. be sentenced as an adult. [ 8 ] The Crown seeks an adult sentence of four and a half years, less pretrial custody. This has been the Crown’s position since A.G. entered his guilty plea. The Crown also asks for ancillary orders including a 10 year driving prohibition, a DNA order, and a

Section 109 weapons prohibition order for 10 years. [ 9 ] If a youth sentence is appropriate, Section 42(2)(

o) of the Youth Criminal Justice Act (YCJA) provides that for the offence of manslaughter, the court may make a custody and supervision order for a maximum period of three years from the date of committal. [ 10 ] The Defence position is that A.G. should receive the maximum youth sentence of three years, from the date of committal, taking into account but not granting credit for presentence custody.

Facts Relating to the Offence [ 11 ] According to the Agreed Statement of Facts filed in support of the guilty plea, on August 26, 2017, A.G. was at his grandparent’s home at […], Belleville, where he had been living at that point for a few weeks. The keys to his grandparent’s 2007 GMC Sierra truck were in his grandmother’s purse. [ 12 ] At approximately 11:00 p.m. A.G.’s grandmother, E.G., noticed that her keys were missing from her purse. She and A.G.’s grandfather G.G., confronted A.G. about the missing keys.

They suspected A.G. had taken the keys because he had previously taken their vehicle on multiple occasions, without their consent. A.G. was in fact facing two sets of charges for stealing their motor vehicle, and on at least three other occasions he had taken stolen their vehicle, driven it during the overnight hours, and returned it without being caught by the police. [ 13 ] A.G. denied taking the keys but his grandparents did not believe him.

G.G. called the Belleville Police and told them that he believed A.G. had stolen the keys to his truck again and he wanted the police to be aware should the police see the truck being driven at some point during the night. [ 14 ] G.G. and E.G. went to bed at around 11:30 p.m. that night. A.G. was still up, as were a few other people who were also staying at the apartment. Shortly after 1:00 a.m. on August 27, 2017, T.S., who was staying at the apartment, woke up and noticed that the truck was gone, as was A.G. She woke up C.N., another person who was staying at the residence.

It seemed obvious to them that A.G. had taken the keys and the truck. They did not wake up G.G. and E.G. to advise them. [ 15 ] At 1:18 a.m., OPP officers were dispatched to a motor vehicle collision on Highway 401 Eastbound, just east of Highway 37, Belleville. Officers arrived shortly thereafter and found two vehicles involved in the collision, one being the G.’s 2007 GMC Sierra taken by A.G. That vehicle had caught fire.

Witnesses at the scene had guided A.G. away from the vehicle and stayed with him until EMS arrived. [ 16 ] The other involved vehicle was the 2015 Subaru Forester that had been driven by Matthew Scime, age 30 while his fiancée Danielle, also age 30, had been in the front passenger seat. Matthew and Danielle were on the highway that night because they were travelling from their home in London to Kingston to attend the funeral of Danielle’s grandfather.

[ 17 ] A large portion of the passenger side of the vehicle was destroyed. Danielle, and the cat she had on her lap, died instantly as a result of the collision. Matthew was trapped in the vehicle until a passerby rescued him from the car and pulled him to safety as his vehicle was also on fire. [ 18 ] Matthew suffered a severe concussion, a contusion on his right chest wall, multiple rib fractures, facial fractures to his upper jaw and orbital bone, bleeding within his brain, a fracture of his right femoral shaft, and a fracture of his sternum.

Matthew remained in hospital, initially in the ICU, from August 27 until September 10, 2017. While in hospital he underwent orthopedic surgery to repair his femoral shaft, which involved a femoral “nailing”. [ 19 ] Perhaps mercifully, Matthew has no memory of the accident. [ 20 ] A.G. walked away from the accident with only minor injuries. [ 21 ] At some point between taking the vehicle and the collision, as he drove the GMC truck, A.G. recorded a very short, four second video, showing the dash of his vehicle, and the roadway. The speedometer shows him to be travelling slightly above 150 km/hour.

He added a caption to the video that read: “Time to end my life” and posted the video on Snapchat. [ 22 ] While at the scene, A.G. made utterances to various witnesses, including civilians and EMS workers, that he drove the wrong way on Highway 401 intentionally, as he wanted to hit a transport truck head on, to kill himself. A.G. told many of these witnesses that he had been travelling at a speed of about 160 km/h in a 100 km/h zone. [ 23 ] A.G. was transported to Kingston General Hospital. He admitted to staff at the hospital his intentions that night and his driving speed.

Staff at the hospital contacted A.G.’s grandparents at about 7:00 a.m. that morning. A.G.’s grandfather then located a four page note that A.G. had written and left on their couch, in which he expressed his intention to commit suicide. [ 24 ] A.G. was held in hospital on a Form 1 due to psychiatric concerns that A.G. posed a danger to himself and others. He was discharged from hospital on August 31, 2017, turned over to the police and arrested. Following his arrest, A.G. confirmed to the police that as he drove he saw the headlights of the other vehicle ‘pop up” over the hill.

He said he was going between 150 -160 km/hour at the time and that he was trying to kill himself by causing a collision with a transport. Prior Car Thefts by A.G. and Outstanding Charges [ 25 ] Before this incident, A.G. had a history of stealing vehicles from family members. He was in fact facing two sets of charges for theft of motor vehicles and take motor vehicle without consent.

A.G. has never had a driver’s licence. [ 26 ] On May 17, 2017, while living with his mother, stepfather and maternal grandfather, J.W., near Tweed Ontario, A.G. snuck into his grandfather’s room after midnight, took the car keys from the pocket of J.W.’s pants which were lying on the floor, and stole J.W.’s car. Police were called and located A.G. driving his grandfather’s car in Tweed, about 7 km away from his parents’ home.

On that occasion, police were told that A.G. had taken his parents’ vehicle on at least two prior occasions, without his parents’ knowledge or consent, but those incidents had not been reported to police. [ 27 ] On April 22, 2017, A.G. stole a green Kawasaki motorized dirt-bike from a shed at a residence, near his home. A.G. drove the dirt bike to a nearby location where he parked the bike and left on foot. The dirt bike was not recovered. [ 28 ] On May 7, 2017, A.G. stole an ATV from the backyard of another residence in Tweed.

He hotwired the ATV to start it, drove it to another location where the ATV broke down, left the ATV at that location, and left on foot. [ 29 ] A.G. was charged with theft of motor vehicle x 2 (ATV and dirt bike) and take motor vehicle without consent (J.W.’s car).

He was released with a first appearance date of June 13, 2017 in Belleville. [ 30 ] In mid June 2017, A.G. went to live with his paternal grandparents, E.G. and G.G., in Belleville. [ 31 ] Sometime between the late evening of June 23, 2017 and the early morning hours of June 24, 2017, A.G. took his grandfather’s GMC truck from the driveway of their residence. A.G. did not have permission to drive the vehicle and he did not have a licence. A.G. also stole his grandmother’s CIBC debit card, which he used to purchase gas.

A.G. drove the truck from Belleville to the town of Bancroft, a distance of over 100 km, where he was the subject of a traffic complaint about a pickup truck squealing its tires. A Bancroft OPP officer observed the truck being driving with in the town of Bancroft and stopped the vehicle at 3:32 a.m. A.G. was arrested for theft of a motor vehicle and possession of the CIBC debit card, and given a first appearance date of August 17, 2017 in Bancroft Youth Court. [ 32 ] On August 17, 2017, the day of A.G.’s first appearance in Bancroft Youth Court.

A.G.’s grandfather, G.G., called Belleville Police at 2:00 a.m. on August 17, 2017 to report that he woke up at 1:00 a.m. to find that A.G. had once again stolen his truck. A.G. had taken the keys from his grandmother’s purse. At 2:18 a.m. Belleville Police observed the vehicle driving northbound on North Front Street, and saw the vehicle accelerate very hard, squeal its tires and then fishtail. The vehicle was pulled over and A.G. was again charged with take motor vehicle without consent. He was released on an appearance notice with a first appearance date of September 19, 2017. A.

G.’s History of Mental Health and Behavioural Issues [ 33 ] A Presentence Report, and a

Section 34 Assessment Report were ordered and have been submitted as exhibits at this sentencing hearing. [ 34 ] A.G. 16 years and four months old at the time of this offence. According to the PSR and the

Section 34 Report, A.G.’s parents separated when he was four or five years old. Both A.G. and his mother say that A.G. was exposed to domestic violence while his

parents were together. A.G. told the author of the

Section 34 Report that his father was also physically and verbally abusive towards him. [ 35 ] Shortly after his parents separated, A.G.’s mother remarried. A.G. was raised by his mother and stepfather and had little contact with his biological father. A.G. says he has a close relationship with his mother but a difficult relationship with his stepfather.

Conflict between A.G. and his stepfather led to A.G.’s departure from his mother’s home at 16 and his eventual residence with his paternal grandparents. [ 36 ] A.G. has a significant history of learning and behavioural difficulties at school, behavioral difficulties at home, and ongoing mental health concerns. [ 37 ] A.G. also has a history of self-harming behaviours, and during the five months before the collision A.G. attempted suicide twice by overdosing with Tylenol, with the second attempt happening just 12 days before the collision. [ 38 ] The dominant picture of A.G. that emerges from the evidence filed at the sentencing hearing, including the PSR, the

Section 34 Report, and various medical reports and hospital records, is that of an angry, easily frustrated, and sometimes violent, young man. [ 39 ] A.G. was first referred by his family physician, to a pediatrician, Dr. Gosse, in June 2009. The reasons for this first referral are detailed in the

Section 34 Report.

A.G. is described as an “8 year old boy with aggressive and violent behaviours at school, significant symptoms of ADHD persist, despite treatment with Concerta 18 mg daily, often angry, gets frustrated when not getting his way, insecure and uncomfortable in new situations, often irritable, hot tempered and easily roused to anger; often physically cruel (including to animals), destructive and defiant; also lies often; often down on himself and feels he’s bad; has frequent mood swings”. [ 40 ] A.G. reports that he was often falsely accused of assaulting other kids at school, usually when he was defending himself from bullying behaviour.

A.G.’s mother says that A.G. was first suspended from school in grade two for defending himself from bullying and that A.G. was bullied extensively during his grade six year. A.G. reacted by threatening suicide in front of his class by holding a pair of scissors to his neck. A.G.’s mother arranged for A.G. to have a psychological evaluation after that incident but A.G. continued to receive multiple school suspensions and his mother reports that during A.G.’s later elementary school years, A.G. was on suspension more often than he was in school. [ 41 ] A.G.’s difficulties continued when he entered high school.

His mother reports that A.G. felt his peers were talking about him or staring at him and he skipped school frequently. He was irritable at home and the family “were all walking on eggshells”. A.G. was expelled from school in grade nine when he threatened a class mate with a knife. Police were called and A.G. was charged but the charge was ultimately diverted through a mental health diversion program. [ 42 ] On January 16, 2016, A.G.’s mother brought A.G. to the Adolescent Mental Health Clinic at Hotel Dieu Hospital in Kingston on January 16, 2016 due to her concerns about A.G.’s behaviour at home and at school.

His mother reported her concerns about A.G.’s ongoing behavioural problems which she described as “being suspended weekly, most difficulties at school when he does not get his own way, causes property damage at home when angry”. Hospital records indicate that A.G. was offered anger management groups or individual therapy but declined this help. [ 43 ] On June 24, 2016, A.G.’s mother again brought her son to the outpatient clinic at the Hotel Dieu Hospital where she reported the same concerns about A.G.’s behaviour. The reasons for the appointment are described as follows: “expelled from school multiple times.

Mood fluctuations persist. Not responding well to psycho stimulants for ADHD symptoms. Oppositional and defiant with family, teachers and peers”. [ 44 ] On February 13, 2017, after his girlfriend broke up with him, A.G. overdosed on Tylenol with codeine and cut his wrists at school. A.G. was admitted to hospital for observation and discharged four days later. [ 45 ] On August 15, 2017, just 12 days before the collision, A.G. overdosed on Tylenol again and was again admitted to hospital for observation.

Although the reason for this hospital admission was A.G.’s suicide attempt, A.G.’s mother reported to A.G.’s psychiatrist that A.G.’s anger and aggression, were the behaviours she felt were the most problematic in A.G.’s life. [ 46 ] The

Section 34 Report details the efforts made by A.G.’s mother to get her son help, and her concerns about the behaviours A.G. was exhibiting at home and at school. There is little evidence, in the

Section 34 Report or other medical records filed at the sentencing hearing, of any follow through by A.G. when recommendations for ongoing medication, counselling or therapeutic intervention were made by various health professionals. The Intensive Rehabilitative Custody and Supervision (IRCS) Suitability Assessment Report [ 47 ] Section 42(2)(

r) provides that a youth court imposing a youth sentence can, when certain preconditions are met, sentence a young person to an intensive rehabilitative custody and supervision order for a maximum period of three years from the date of committal. [ 48 ] The sentence order of Intensive Rehabilitative Custody and Supervision commits the young person into a continuous period of intensive rehabilitative custody for the first portion of the sentence, with the remainder of the sentence under conditional supervision in the community in accordance with

Section 105 of the YCJA . [ 49 ]

Section 105 provides that when a young person has received a sentence of intensive rehabilitative custody and supervision pursuant to Section 42(2)(r), the provincial director shall cause the young person to be brought before the youth justice court at least one month before the expiry of the custodial portion of the youth sentence. The court shall, after giving the young person an opportunity to be heard, by order, set the conditions of the young person’s conditional supervision.

Section 105(6) provides that before setting the conditions the youth court shall require the provincial director to prepare and submit a report setting out any information that may be of assistance to the court in determining the conditions to be included in an order of conditional supervision.

[ 50 ]

Section 105 allows the Court to determine the conditions of community supervision, after receiving a report detailing the progress of the young person while in custody, and any other information relevant to determining appropriate conditions to be included in an order of conditional supervision. [ 51 ] While a sentence of intensive rehabilitative custody and supervision must include both a portion of the sentence which is served under conditional supervision in the community, the youth court has discretion to determine the length of both the custody portion of the sentence and the community based portion of the sentence. [ 52 ] An Intensive Rehabilitative Custody and Supervision (IRCS) Suitability Assessment Report was prepared at the court’s request. [ 53 ] Section 42(7) of the YCJA provides as follows: A youth justice court may make an intensive rehabilitative custody and supervision order under paragraph 2(

r) in respect of a young person only if (

a) either (

i) the young person has been found guilty of a serious violent offence, or (ii) the young person has been found guilty of an offence, in the commission of which the young person caused or attempted to cause serious bodily harm and for which an adult is liable to imprisonment for a term of more than two years, and the young person had previously been found guilty at least twice of such an offence (

b) the young person is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance; (

c) a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable ground to believe that the plan might reduce the risk of the young person repeating the offence of committing a serious violent offence; and (

d) the provincial director has determined that an intensive rehabilitative custody and supervision program is available and that the young person’s participation in the program is appropriate. [ 54 ] The pre-conditions to an intensive rehabilitative custody and supervision order have been met in this case. The Intensive Rehabilitative Custody and Supervision (IRCS) Suitability Assessment Report dated April 3, 2019 has found A.G. suitable for an IRCS sentence.

A.G. participated in the IRCS Assessment process and has signed a consent to participate in the specialized treatment program outlined in the report. [ 55 ] The IRCS Suitability Assessment Report outlines a detailed and comprehensive plan of treatment and intensive supervision. [ 56 ] The Specialized Plan of Treatment developed in the IRCS report includes psychiatric treatment and pharmacological management, substance relapse prevention planning, therapeutic milieu through cognitive behavioural therapy and dialectical behavioural therapy, psycho educational therapy to educate on substance use, personality and thinking errors, expressive language supports to develop and enhance interpersonal skills, communication and assertiveness, specialized programming to address specific risk areas, such as problem solving, anger management, non-violent conflict resolution and accountability, employment and education support with a focus on trades programming, and a reintegration plan that targets risk in the community, works towards increasing outcomes and improving transitions through early initiation of community supports. [ 57 ] The report describes the efforts A.G. has been making to address some of these identified treatment needs since he has been in custody.

A.G. has been meeting weekly with an addictions counsellor and has met regularly with a psychologist. A.G. has completed 15 programs at Brookside to date, including an anger management program and is described as “eager to participate in programming and has utilized the resources made available to him while at BYC”. [ 58 ] The treatment plan involves using A.G.’s current clinicians and securing additional resources with IRCS funding to enhance these resources in accordance with the IRCS treatment recommendations.

The proposed Placement Plan for A.G. is that he remain at Brookside Youth Center, a secure custody facility. [ 59 ] The author of the IRCS report writes that: “This placement was chosen based on the specialized service needs of the young person, the ability to facilitate the young person’s participation in treatment programs and services utilizing facility staff and specialized community service providers and the proximity of the placement to the young person’s home community. The Case Management Team supports that A.G.’s needs are best met in a youth facility.

Brookside Youth Centre’s clinicians believe that A.G. would be highly vulnerable in an adult facility due to his diagnoses, mental health, and maturity level. As such the case Management team feels that the placement in an adult facility would be detrimental to effective treatment and rehabilitation’. [ 60 ] The author of the IRCS report describes A.G.’s progress at Brookside to date as “exceptional”.

A.G. is currently on Level Four, which is the highest level of the incentive program, and he is described as having integrated well with the program, complied with set rules and expectations within his unit, and eager to attend programming. [ 61 ] A.G. has told the case management team that he wants to remain at Brookside due to his relationships with staff there, and the facility’s proximity to A.G.’s family. A.G.’s Pretrial Custody [ 62 ] Section 38(3)(

d) of the YCJA requires a sentencing judge to “take into account the time spent in detention by the young person as a result of the offence”. However, while a youth court judge must consider pre-sentence custody in sentencing, the youth court judge

is not required to credit the time a young person has spent in custody. A youth court judge’s discretion includes the ability to award nocredit for pre-sentence custody against a youth sentence particularly in the context of an application made by the Crown to sentence ayouth as an adult. See: R. v E.L., (ON CA), [2006] O.J. No. 1517 (C.A.); R. v D.W., 2008 ONCA 268; R. v M.B.,2016 ONCA 760; [63] In R. v M.B., supra, Justice Pardu writes at paragraph 11: “The reasons why a sentencing judge might choose to exercisediscretion in this manner are apparent, when considering the sentencing objectives under the YCJA.

Youth sentencing judges aremandated under the YCJA to impose the least restrictive sentence capable of achieving the purposes expressed in the YCJA and toimpose the sentence most likely to rehabilitate the young person and reintegrate him or her into society (YCJA, s 38(1), 38 (2)(e). Requiring youth court judges to give credit for pre-sentence custody could lead to a conclusion that the youth sentence would be ofinsufficient length to hold the youth accountable. The credit which will be given in a particular case is discretionary and is not amechanical calculation.

There are many ways that a youth court can ‘take into account’ a youth’s pre-sentence custody.” [64] The same discretion not to credit pre-sentence custody does not apply when an adult sentence is imposed on a youth. Counselwere unable to identify a single case where a youth was given an adult sentence, and presentence custody was not deducted. Analysis [65] Section 72(1) of the YCJA sets out the test that the Crown must meet before a young person may be sentenced as an adult: “Theyouth court shall order that an adult sentence be imposed if it is satisfied that (

a) the presumption of diminished moral blameworthinessor culpability of the young person is rebutted; and (

b) a youth sentence imposed in accordance with the purposes and principles set outin subparagraph 3 (1)(b)(ii) and

section 38 would not be of sufficient length to hold the young person accountable for his or heroffending behaviour.” [66] This is a two pronged test. The Crown bears the onus of rebutting the presumption of diminished moral blameworthiness towhich A.G. is constitutionally entitled, and establishing that a youth sentence would not be of sufficient length to hold A.G. accountablefor this very serious offence of manslaughter: see R. v DB, 2008 SCC 25 , [2008] 2 S.C.R. 3; R. v Joseph, 2016 ONSC 3061,[2016] O.J. No. 2450; pat paras 48-52; R. v C.S., 2014 ONSC 4362 , [2014] O.J. No 4206 at paras 9-10 [67]

Section 72(

b) directs the court to consider the purpose and principles of youth sentencing set out in Section 3(1)(b)(ii) andSection 38 of the YCJA. [68] Section 3(1)(b)(ii) provides that “3(1) The following principles apply in this Act:…(

b) the criminal justice system for youngpersons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability andmust emphasize the following:…(ii) fair and proportionate accountability that is consistent with the greater dependency of youngpersons and their reduced level of maturity.” [69] Section 38(1) provides that “the purpose of sentencing under

Section 42 (youth sentences) “is to hold a young personaccountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and thatpromote his or her rehabilitation and reintegration into society, thereby contributing to the long term protection of the public.” [70] The central issue is whether a youth sentence is or is not of “sufficient length to hold the young person accountable” for hiscrime. [71] It is important to note that when parliament amended the YCJA in 2012 by amending

Section 72 to place the onus on theCrown to satisfy the two pronged test that must be met before the Court can impose an adult sentence, parliament also amended Section38 by adding paragraph 38(2)(

f) which provides that, in addition to all of the sentencing principles a youth court must take intoconsideration, as set out in Sections 3 and 38 of the YCJA, a youth sentence may also have the objectives of deterrence and denunciation. [72] In R. v A.O., 2007 ONCA 144, the Ontario Court of Appeal considered the combined effect of subsection 72, 3, and 38 andsignificance of the sentencing principle of accountability within the context of a Crown application for an adult sentence.

The Courtfound that in the context of a Crown application for an adult sentence the concept of accountability is equivalent to the adult sentencingprinciple of retribution.

At paragraph 47, quoting from the decision of Lamer C.J.C. in R. v M.(C.A.) (1996), (SCC),105 C.C.C. (3d) 327 (S.C.C.), the court writes: “In our view, for a sentence to hold a young offender accountable in the sense of beingmeaningful it must reflect, as does a retributive sentence, ‘the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct.’. We seeno other rational way for measuring accountability”. [73] Part one of the two part test set out in

Section 72 requires the court to determine whether the Crown has rebutted thepresumption of diminished moral blameworthiness. [74] It is certainly arguable that A.G.’s conduct that night, his intention to end his own life by crashing head on into a transporttruck, reflects the lack of foresight that is typical of a young person and that justifies the presumption of diminished moralblameworthiness that forms the basis of youth sentencing under the YCJA.

This argument is supported by A.G.’s clinicians at Brooksidewho provided input to the author of the IRCS Suitability Assessment Report and describe A.G., who is now almost 18 years old, ascurrently having the maturity level of a 14 year old.

Defence counsel submits that the court must consider this input from A.G.’s clinicalteam as evidence demonstrating A.G.’s lack of maturity, and therefore his diminished moral blameworthiness, at the time of thisoffence. [75] However, while A.G.’s stated wish to end his own life apparently motivated his actions that night, A.G.’s suicide plan was areckless and violent plan that he carried out with absolutely no regard for the safety of anyone else on that highway.

The truck A.G.drove at speeds of 160 km/h in the wrong direction on that dark highway after midnight, essentially became a speeding bullet that tookDanielle’s life, and threatened the lives of many others.

[ 76 ] This offence involved planning and premeditation. A.G. was confronted that night by his grandmother and denied having the truck keys. He was facing two sets of charges involving previous thefts of his grandfather’s vehicle when he committed this offence.

A.G. was well aware that stealing a car and driving at night without a licence was criminally wrong and dangerous. [ 77 ] The evidence of the planning involved in this incident, the high level of recklessness and violence involved in A.G.’s conduct that night, A.G.’s complete lack of regard for the safety of other people driving on the highway that night, and the fact that he had two outstanding charges before the court involving theft of his grandfather’s truck, when this incident occurred, A.G.’s failure to engage in recommended treatment after previous hospitalizations for suicide attempts, the concerning comments made by medical professionals about whether A.G. felt remorse after the collision, A.G.’s comments just five hours after the collision that his intention was to attempt to commit suicide again in exactly the same way, are facts that, when considered together, outweigh the evidence regarding A.G.’s immaturity now, and at the time of the offence. [ 78 ] The author of the Pre-Sentence Report writes that “ A.G.’s view of the current situation and those attached to his offence appears to be distorted, self centered, and self-serving.

The subject is most concerned that members of the community think that he is the one who is deceased from this offence. This is troubling and suggests that A.G. is at the beginning stages of some hard work ahead. A.G. will need to work on his distortions with supportive professionals to even being to repair the harm that has been caused to others and to ensure that there are no future victims”. [ 79 ] A.G.’s moral culpability for this offence is high. I find therefore, that the Crown has met the first part of the test set out at

Section 72 of the YCJA and has rebutted the presumption of diminished moral blameworthiness in this case. [ 80 ]

Part 2 of the

Section 72 test requires the Crown to satisfy the court that a youth sentence imposed in accordance with the purposes and principles of the YCJA would not be of sufficient length to hold A.G. accountable for this offence. [ 81 ] The overriding principle of sentencing under the YCJA is that a youth sentence must hold a young person accountable through the imposition of meaningful consequences that promote the rehabilitation of the young person and his reintegration into the community.

A youth sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person with a view to promoting the long term protection of the public. [ 82 ] A significant sentence is required in this case, to hold A.G. accountable and to achieve his rehabilitation and safe reintegration into the community. [ 83 ] If an adult sentence of four and half years (or 54 months) is imposed, A.G. is entitled to credit for his pretrial custody.

The standard pretrial credit for adult offenders is enhanced credit of 1.5 to 1, which would result in A.G. receiving credit for 30 months pretrial custody, taking into account the actual 20 months he has spent in custody. Therefore, after crediting A.G. with 30 months custody, his sentence would be a sentence of 24 months, which would likely be served in a youth facility, at least until his 20 th birthday.

If A.G. receives an adult sentence he would also be eligible for statutory release after serving 2/3 of his sentence, so that if the court imposed an adult sentence it is likely that A.G. would actually serve an additional 16 months in custody. [ 84 ] The preconditions for a youth sentence of an Intensive Rehabilitative Custody and Supervision Order have been met.

The IPRC Suitability Assessment Report identifies a plan of treatment and intensive supervision and I find that there are reasonable grounds to believe that this plan will reduce the risk of A.G. repeating this offence or committing another serious violent offence. The provincial director has determined that the IRCS program is available to A.G. and that A.G.’s participation in this program is appropriate in this case.

A.G.’s prospects of successful rehabilitation and safe reintegration into the community are enhanced by the comprehensive specialized treatment program that has been developed for A.G., and the extra funds attached to an IRCS sentence that will be available to implement this program. [ 85 ] A youth sentence of three years Intensive Rehabilitative Custody and Supervision, apportioned as two and half years or 30 months, in continuous custody followed by six months under conditional community supervision, is a significantly longer custodial sentence than the sentence the Crown is asking for. [ 86 ] Defence counsel submits that an adult sentence in this case, because of the length of adult sentence being sought by the Crown, would be a sentence “in name only”.

I agree. An adult sentence would allow A.G.’s name to be published but it would not hold him more accountable than would a youth sentence of three years Intensive Rehabilitative Custody and Supervision. [ 87 ] I find that the Crown has failed to establish that a youth sentence would not be of sufficient length to hold A.G. accountable for this offence. [ 88 ] A.G. has been in custody since his arrest on August 17, 2017, a period of almost 20 months.

For the reasons indicated above, while I do take this period of pretrial custody into account, I am not crediting the time A.G. has spent in custody against his youth sentence. [ 89 ] Whether the Court imposes a youth sentence or an adult sentence, one of the purposes of sentencing is to repair of the harm done to victims and the community. In this case I recognize that there is no sentence this Court can impose that will repair the terrible harm caused by A.G.

No sentence this Court imposes will return Danielle to her family, alleviate the emotional pain being endured by Danielle’s loved ones, or heal the emotional and physical scars suffered by Matthew. [ 90 ] Taking into consideration A.G.’s high level of moral blameworthiness, the extremely serious nature of this offence, and the tragic consequences of A.G.’s planned, premeditated and reckless decision to commit

an act of violence using a car as his weapon, and also taking into account the significant progress that A.G. has made while in custody at Brookside, and his commitment to participate in the specialized treatment plan outlined in the IRCS report, I find that the appropriate sentence is a youth sentence of Intensive Rehabilitative Custody and Supervision for three years from the date of committal. [ 91 ] Therefore, A.G. your sentence is as follows:

i) For the offences of manslaughter and criminal negligence causing bodily harm, three years Intensive Rehabilitative Custody and Supervision on each count concurrent. ii) The first two and a half years of this sentence shall be served in Intensive Rehabilitative Custody, followed by six months under conditional supervision in the community. iii) For the offence of take motor vehicle without consent, one day concurrent. iv) A driving prohibition for ten years.

v) A DNA order. vi) A

Section 51 weapons prohibition order for five years. Released: April 9, 2019 Signed: Justice E. Deluzio