2011 MBPC 5, 2011 MBPC 5

CITATION NO. 2011 MBPC 5 Date: January 19, 2011 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Debbie Buors, ) for the Crown - and - ) ) M.O., ) Theodore L. Mariash, a young person, Accused ) for the Accused ) ) Judgment delivered: ) January 19, 2011 Corrected Judgment: An Erratum was filed on February 10, 2011. The text of the Erratum is appended at the end of the reasons of the initial judgment, which is reproduced here with corrections.

Restriction on Publication: Please note that the Youth Criminal Justice Act , section 110(1) , which prohibits the publication of any information that may identify a person as having been dealt with under this Act, applies to this judgment. CARLSON, P.J. Introduction [ 1 ] M.O. has been convicted of five offences, and awaits sentencing on all of them.

M.O. is now 18 years of age. [ 2 ] At the time each of the offences was committed, M.O. was under the age of 18 years, and was therefore a young person as defined in the Youth Criminal Justice Act , S.C. 2002, c. 1 (“ Y.C.J.A .”) . [ 3 ] With respect to two of the offences, the Crown has applied to have M.O. sentenced as an adult rather than as a young person. [ 4 ] The Crown’s application for an adult sentence is opposed by M.O. His position is that he should be sentenced as a young person for all of his offences. [ 5 ] The court heard submissions with respect to this Crown application on November 2, 2010.

On December 1, 2010, M.O.’s mother addressed the court. On December 21, 2010, the Crown provided the court with some updated information. [ 6 ] What follows is the court’s decision as to whether or not M.O. should be sentenced as an adult with respect to an aggravated assault he committed on February 9, 2009, and/or with respect to his possession of a weapon, contrary to a weapons prohibition, on February 21, 2009.

M.O. pleaded guilty to both offences on July 8, 2010. [ 7 ] The other offences that M.O. awaits sentencing on are: • A sexual assault that occurred on September 6, 2009, while he was in custody at the Manitoba Youth Centre. He was convicted of this offence after trial. • An assault that occurred on September 1, 2009, while he was in custody at the Manitoba Youth Centre. M.O. pleaded guilty to this offence. • A careless use of firearm that occurred on February 21, 2009, arising out of the same incident as the possess weapon contrary to a weapons prohibition for which the Crown is seeking an adult sentence.

M.O. pleaded guilty to this offence. Requirements on an adult sentence application

[ 8 ] The Crown’s application for an adult sentence is made pursuant to section 64(1) of the Y.C.J.A . [ 9 ] The aggravated assault and the possession of weapon offence are both “non presumptive” offences. They are offences for which an adult sentence may be considered, as each is one for which an adult is liable to imprisonment for a term of more than two years, and was committed after the young person was fourteen years of age. M.O. was 17 years old at the time each of the two offences was committed. Accordingly, the eligibility requirements for consideration of an adult sentence for M.O. for these two offences pursuant to

section 62 (

b) Y.C.J.A . are met. [ 10 ] The Attorney General gave notice to the court and to M.O. on June 26, 2010 of its intention to seek an adult sentence on these two offences, that being prior to M.O.’s pleas on those two offences being entered. Accordingly, the notice requirements prescribed by section 64(2) of the Y.C.J.A . have been met. [ 11 ] A pre-sentence report must be considered by the court in its decision as to whether to impose a youth or adult sentence ( section 72(3) Y.C.J.A .). A pre-sentence report, prepared by probation officer W.

Cameron and dated August 26, 2010, was included in sentencing materials filed by the Crown. [ 12 ] A medical or psychological assessment of the young person may be ordered for the purpose of making a decision to impose a youth or adult sentence (

section 34 Y.C.J.A .). Such a report was ordered. The report of psychologist Dr. Garry Fisher, of Youth Forensic Services, assessing M.O. on July 14, 2010, and an earlier report by Dr. Kent Somers, also a psychologist with Youth Forensic Services, dated September 3, 2008, were included in the sentencing materials filed by the Crown. [ 13 ]

Section 71 of the Y.C.J.A . requires that certain persons be given an opportunity to be heard at the hearing of an application for an adult sentence. Crown and defence counsel both made submissions. M.O.’s mother addressed the court, and urged the court to sentence M.O. as a young person on all offences. M.O. chose not to make any comments to the court, although he was given the opportunity to do so. The Issue [ 14 ] The issue for the court to decide is whether an adult sentence is to be imposed on M.O. for committing the aggravated assault on February 9, 2009, contrary to

section 268 of the Criminal Code and/or for committing the offence of possessing a weapon contrary to a weapons prohibition, contrary to

section 117.01(1) of the Criminal Code. The Facts of the Offences The aggravated assault [ 15 ] The aggravated assault happened on February 9, 2009. On that date, the victim was physically beaten by M.O. and three co- accused. As a result of that beating, the victim sustained a subdural haemorrhage to the left side of his brain. [ 16 ] The victim had driven his vehicle into the parking lot of an apartment complex, in Winnipeg, for the purpose of visiting relatives who lived in the apartment complex. As soon as he got out of his vehicle, he was attacked by M.O. and his three co accused.

The victim, who was alone, used his cell phone to call relatives inside the apartment building. They attended to the parking lot and found the victim severely beaten about the head. By the time authorities arrived, all accused had fled the scene. [ 17 ] The reason for the attack was gang motivated. M.O. and his co accused were members of the B Side street gang. They were looking to find any member of the African Mafia, a rival street gang, who might happen to be in “territory” claimed by the B Side gang, to beat up.

They saw the victim, and based solely on the colour of his skin, which was dark, assumed, entirely mistakenly as it turned out, that he was a member of the African Mafia street gang. They attacked him, without any provocation whatsoever. The four members of the B Side gang hit the victim in the face, punched and kicked him, and one of them hit him with a bat that was wrestled away from the victim, who had grabbed the bat from his car and was holding it in order to protect himself. [ 18 ] In fact, the victim was not a member of any street gang at all. The attack was entirely unprovoked.

This is a horrific case of a victim being in the wrong place at the wrong time, with tragic and permanent, life altering results. [ 19 ] The victim was 19 years old. I heard a victim impact statement read by the victim’s father. The impact of the offence on the victim and on his family has been horrendous. The victim sustained a severe brain injury from which he will never recover. He was hospitalized for 15 months. He will never talk, walk, or be able to care for himself. It is not known whether the victim is able to understand the condition he is in.

He will require around the clock care for the rest of his life, which is, and will continue to be, a huge financial and physical strain on his family indefinitely. Both of his parents had to leave their jobs. His uncle had to give up university. They have used all their savings, and have had to resort to social assistance and food banks. The victim’s family is a hardworking family that came to Canada from Sudan looking for a peaceful life. The life of the young victim and his family was, by the violent actions of M.O. and his associates, forever horrifically changed.

[ 20 ] In terms of the Crown’s case against M.O., there was an eyewitness who described that M.O. was punching and stomping on the victim and said that M.O. was the last one to run away from the scene. A witness who talked to M.O. the next day said M.O. had described how much “fun” they had had beating up the victim. [ 21 ] M.O. says that after the punching and kicking stopped, he left, and that it was after that that one of the adult co-accused hit the victim with the baseball bat in the head. M.O. says he was not there when the victim was hit with the bat.

The Crown has not called evidence to prove that he was. [ 22 ] For the purpose of sentencing, I accept that M.O.’s direct involvement was punching and kicking the victim, as part of an overall group attack, and then leaving the scene. [ 23 ] M.O.’s counsel says that if the victim had not been hit with the bat, his injuries may not have been as extensive as they were. That may be. But even if M.O. left before the victim was hit with the bat, he did not go for help or do anything to assist the victim.

He cannot now say he is not responsible for the victim’s injuries that occurred as part and parcel of the overall attack. M.O. is responsible for the results of the full attack and the devastating injuries caused to the victim. The weapons offence [ 24 ] On February 21, 2009, just 12 days after the aggravated assault, M.O. and another known gang member, one of his co-accused on the aggravated assault in fact, were involved in a second incident.

It was from this incident which arose the offence of possession of weapon in contravention of a weapons prohibition that was imposed as part of a sentence on a prior offence. On that date M.O., with another gang member, went to a residence with a loaded sawed off shotgun. One of them knocked on the door. Then one of them fired the loaded shotgun into the home through a window, both of them knowing there were people inside the home. It is not determined whether it was M.O. or his co-accused who had the gun, and which of them fired the shot.

M.O. says it was the co-accused who fired the gun and that he was recruited by that co-accused to go along. The law on an adult sentence application [ 25 ] The sentencing of young persons is governed by the Y.C.J.A. The test to be applied on the application for adult sentence [ 26 ] The relevant test for determining an application for an adult sentence is set out in section 72(1) of the Y.C.J.A. It reads 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 just be imposed; and (

b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1) (b)(ii) and

section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.” Y.C.J.A. purpose and principles [ 27 ] The primary focus of the section 72(1) test is on the adequacy of the Y.C.J.A . to hold the young person “accountable”. An assessment of the adequacy of the Y.C.J.A .’s accountability regime has to specifically, according to section 72(1) , be considered according to the purpose and principles for sentencing young persons contained in the declaration of principle set out in section 3(1) (b) (ii) and in

section 38 of the Y.C.J.A. [ 28 ] Section 3(1)(b)(ii) requires the court to consider the principle that accountability of adolescent offenders is limited, in

comparison to that of adults. Specifically section 3(1)(b)(ii) reads: “the criminal justice system for young persons must be separate from that of adults and emphasize…fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity.” [ 29 ] By incorporating a consideration of

section 38 into the

section 72 test, the court, in deciding whether to impose an adult sentence, must consider the following principles: 38(1) Purpose – The purpose of sentencing under

section 42(youth sentence) 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. 38(2) Sentencing principles – 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…; 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. 38(3) Factors to be considered - in determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

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

d) the time spent in detention by the young person as a result of the offence;

(

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to thepurpose and principles set out in this section. [30] By specifically incorporating the purpose and principles of sections 3(1)(b)(ii) and 38 into the

section 72 test, the court isrequired to actually weigh and balance all of the factors that it does when actually sentencing a young person. So, even though the courtis not, on this application, deciding what sentence is appropriate, the court needs to consider the same factors that it would on asentencing hearing, and then decide whether a youth sentence will be sufficient to hold M.O. accountable for the aggravated assault andpossession of weapon offences.

The onus on the application for adult sentence [31] The onus is on the Crown to satisfy the court that a youth sentence would not have sufficient length to hold M.O. accountable (section 72(2) Y.C.J.A.). While in applying that onus, the court must bear in mind the very serious consequences of an adult sentence fora young person, such that an adult sentence is to be ordered only when necessary to fulfil the objectives of the Y.C.J.A., the onus is notone of beyond a reasonable doubt, or anything other than “to satisfy” as stated in

section 72 (R. v. A.O. (2007), 2007 ONCA 144, 84 O.R. (3d) 561(C.A.). What does “accountability” mean in the context of the

section 72 test? [32] In R. v. A.O. the Ontario Court of Appeal said: “The combined effect of ss. 72, 3 and 38 is to identify accountability as the purpose that the youth court judge must consider whendeciding an application to impose an adult sentence on a young person. Accountability is achieved through the imposition of meaningfulconsequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society.

The purpose ofaccountability in this context would seem to exclude accountability to society in any larger sense or any notion of deterrence.” (paragraph42) [33] Accordingly, “accountability” in the Y.C.J.A. and for the purposes of the court’s consideration in this case, must be “offender –centric” rather than “society – centric”. (R. v. A.O.; R. v. P. (B.W.); R. v. N. (B.V.) 2006 SCC 27 . [34] In R. v. A.O., at paragraphs 45 through 47, the Ontario Court of Appeal makes the following statement, which has beenadopted in a number of Manitoba court decisions (for example R. v. B.K.S., 2009 MBQB 236 and R. v.

B.K.T.S. 2009 MBQB 56): “Thus, the question in this case is what is meant by the terms accountability, meaningful consequences, rehabilitation and reintegration. One obvious point is that meaningful consequences cannot be synonymous with rehabilitation and reintegration. Parliament has used thedifferent terms and is presumed to have intended different meanings. See for example, R. v. Barnier, (SC.C.), [1980] 1S.C.R. 1124 at 1135-36; Winko v. British Columbia (forensic Psychiatric Institute), (S.C.C.), [1999] 2 S.C.R. 625 atpara 134.

In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by Lamer C.J.C.in R. v. M. (C.A.) (S.C.C.), (1996), 105 C.C.C. (3d) 327 (S.C.C.) at paras 80 and 81: “Retribution in a criminal context, by contrast , represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender’s conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just andappropriate punishment, and nothing more.

… Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blame-worthiness of that particular offender . The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct .

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal laws. [Underlining in original, italics added].” In our view, for a sentence to hold a young person accountable in the sense of being meaningful 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”. [Underlining omitted.] We see no other rational way for measuring accountability. ” [ 35 ] A consideration of the normative character of an offender’s behaviour must be decided in the context of societal values.

But in doing so, the court cannot add on to a youth sentence an element of general deterrence or denunciation. ( R. v. A.O. , paragraph 48 ). [ 36 ] I do note the comments of Judge Nordheimer in the Ontario Superior Court of Justice of Ontario in R. v Simpson- Rowe , at paragraphs 71 to 73. He says that to be included in “any other factor that the court considers relevant” is the interests of society. He says that while the focus of the Y.C.J.A. is “offender-centric” it is not “offender- exclusive”, and points to the

preamble of the Y.C.J.A ., which refers to a youth criminal justice system that commands respect, which must mean respect of the public. Judge Nordheimer says that he is not invoking denunciation (which has no application under the Y.C.J.A .) but he is just recognizing that there is a legitimate public interest in the sentencing process involving young persons, and that such sentencing must reflect an expectation of an appropriate degree of accountability and responsibility from young persons.

What considerations as to rehabilitation need to be addressed on an application for adult sentence? [ 37 ] In A.O ., the Ontario Court of Appeal made some important points as to how a court should consider the issue of possible rehabilitation of a young person.

These include: • A sentencing judge should consider the evidence and evaluate a young person’s prospects for rehabilitation in the context of assessing whether a youth sentence would be sufficient to hold him accountable for his offences (paragraph 57). • It is not necessary for a court to find that a youth sentence must be sufficient to secure rehabilitation in order to preclude imposing an adult sentence, since it is just not possible to predict that rehabilitation will certainly occur (paragraph 58). • To succeed on an adult sentence application the Crown is not required to establish that the young person cannot be rehabilitated by a youth sentence (paragraph 59).

Length of youth sentence available vs. length of adult sentence [ 38 ] An important issue to consider is the length of a youth sentence as opposed to what could be imposed on an adult for the same offence. [ 39 ] For the offence of aggravated assault, the Criminal Code imposes an adult sentence of a maximum of 14 years imprisonment. For the offence of possession of a weapon while prohibited the Criminal Code imposes an adult sentence of a maximum of 10 years. [ 40 ] Section 42(2) (

n) of the Y.C.J.A . sets out the maximum length of a youth sentence for each of the offences in issue here, the aggravated assault and the possession of a weapon in violation of a weapons prohibition, as being an order of custody and supervision not to exceed two years.

Any term of probation imposed as an additional sanction to a custody and supervision sentence must be included in that two year total (section 42(14)). [ 41 ] Further, section 42(15) of the Y.C.J.A . mandates that if more than one youth sentence is imposed with respect to different offences, the continuous combined total duration of those youth sentences shall not exceed three years. Concurrent vs. consecutive sentences [ 42 ] The two offences for which the Crown seeks an adult sentence for M.O. were entirely separate from each other. They occurred

at different times, involved different victims and took place in different circumstances. The sentences for these two offences will need to be consecutive to each other. The assault and sexual assault offences for which M.O. will be sentenced as a youth will also need to be consecutive to each other, and to the aggravated assault and weapons offences. The careless use of firearm offence arose from the same incident as the possession of weapon in violation of a weapons prohibition so it may be appropriate for concurrent sentences to be imposed for those offences.

There are still three youth offences for which M.O. remains to be sentenced [ 43 ] The fact that M.O. remains to be sentenced as a youth on three other offences is relevant. [ 44 ] If M.O. is sentenced as a youth on the aggravated assault and the possession of a firearm contrary to a weapons prohibition, as well as on the other three offences, the total maximum sentence for all of those offences cannot exceed three years, inclusive of probation.

If M.O. were given the total maximum sentence of three years for the two offences at issue on this application, that would leave three other offences, namely a careless use of firearm, an assault and a sexual assault, all to be somehow incorporated into the youth sentence, with no separate consequences for those offences imposed on M.O. The effect of pre-sentence custody [ 45 ] M.O. has been in custody since March 3, 2009. He used four months of pre sentence custody for his September 2009 sentencing.

That means he has spent 18 and a half months in custody pre-sentence that could be applied toward the sexual assault, the assault and the other weapons offence he remains to be sentenced on, and/or to either or both of the two offences now the subject of the adult sentence application. [ 46 ] In R. v. P. (N.W.) , 2008 MBCA 101 , Mr.

Justice Monnin of the Manitoba Court of Appeal made it clear that while a judge may give an accused a credit against any sentence that it may order for the time he has spent in custody that is not credited to another sentence, the judge is not bound to do so, especially in cases where the maximum sentence or near maximum sentence is imposed, as long as the judge takes that time into consideration in determining an appropriate sentence. [ 47 ] Taking all of the above into account, this means that the total maximum length of time that the court must consider as to whether it is sufficient to hold M.O. accountable for the aggravated assault and the possession of weapon offence under the youth sentencing regime is as follows: • three further years as a sentence (which would be two years of custody and one year of community supervision), and • taking into account, but not noting as part of the sentence, up to 18 and a half months in pre-sentence custody. [ 48 ] On the other hand, the court must also take into account that there are still the sexual assault, the assault and the other weapons offence with respect to which some or all of that 18 and a half months pre-sentence custody may be noted, or not noted but taken into account, and/or some or all of the three years of potential sentencing time going forward will be attributed. [ 49 ] In order that the sentences for the sexual assault, the assault and the other weapons offence not be offences for which no meaningful sanction can be imposed upon M.O., it is really only the difference between the maximum of a three year sentence for the aggravated assault and possession of weapon, plus the taking into account of the time in pre-sentence custody, and what the total combined sentences are for the sexual assault, assault and other weapons offence, that should be properly considered by the court.

That is the amount of time with respect to which it should be determined whether it is sufficient to hold M.O. accountable under the youth sentencing regime. THE ANALYSIS Application of the Law to the Facts of this Case [ 50 ]

Section 72 specifically says the court is to consider the seriousness and circumstances of the offences and the age, maturity, character, background and previous record of M.O. and any other factors the court may consider relevant. Seriousness and circumstances of the offences [ 51 ] The aggravated assault carries a maximum adult sentence of 14 years in prison. It was a gang motivated attack by 4 individuals

on a lone, unsuspecting individual, who had no gang affiliations and did not know his attackers. M.O. was part of the group that formulated the plan to attack a rival gang member, and this victim was chosen purely on the basis of the colour of his skin. M.O. kicked and punched the victim repeatedly. Although M.O. was not the one who hit the victim in the head with the bat, he was present and participated in the attack until at least before the hit with the bat, and did nothing to stop the attack or help the victim.

It was a horrific attack and involved the victim being beaten to the extent he sustained a brain injury, from which he will never recover. On a scale of seriousness, this offence is near the top of the scale. [ 52 ] The possession of a weapon in breach of a weapons prohibition is also serious. It carries a ten year maximum adult sentence. This is not just a situation where M.O. was found with a weapon. It was a firearm and the firearm was actually used in the carrying out of a gang plan to intimidate someone in order to collect a gang related debt. Further the weapon was not just possessed.

Its possession facilitated the commission of the further offence of careless use of the firearm by it being shot into a residence where M.O. knew there were people inside. Again, on a seriousness scale, this is near the top. Age [ 53 ] M.O. is now 19 years old. At the time of both of these offences he was 17 years and 2 months old. Maturity [ 54 ] The forensic reports make it clear that M.O. has significant impairments in intellectual functioning. His IQ is below 70. [ 55 ] Dr.

Fisher says there is no evidence of mental health problems. [ 56 ] The Crown says the fact M.O. was willing to engage in adult behaviours such as using alcohol and drugs, not attending school, living a transient lifestyle and belonging to a street gang and participating in gang activities, reflects some level of maturity. Basically, the argument is that if he is going to be involved in adult behaviours, he should be treated as an adult. [ 57 ] Dr. Fisher links M.O.’s behavioural difficulties to his cognitive challenges, at least in part. Academically, he functions far below grade level. Dr.

Fisher opines that M.O.’s learning limitations likely have played a role in M.O. becoming involved in criminal behaviour, due to negative peer association, poor problem solving and emotional over-reactivity to feelings of frustration. [ 58 ] Dr. Somers says that these cognitive limitations mean that, although M.O. presents as having been socialized in a way that would be regarded as being “street smart”, he in fact is likely to have limited judgment and to be naive in some aspects.

He has limited problem solving abilities, limited capacity for inference, and limited ability to anticipate consequences of current actions or to anticipate future events generally. [ 59 ] Dr. Somers says that M.O.’s limited remorse for his actions, or limited empathy for others, is also partly explained by his limited cognitive functioning. He is likely to be egocentric in viewing the world. [ 60 ] So although in some ways M.O.’s behaviour seems very “adult-like”, Dr. Fisher and Dr.

Somers’ reports, make it clear that M.O. is easily influenced by peers, is naive and tends to be a follower of others, and that these qualities are at least partly linked to his diminished intellectual functioning. Background and Character [ 61 ] M.O.’s parents separated when he was 12 years old. M.O. reports that both parents had assaulted him. His relationship with his mother has improved. There has been some involvement with Child and Family Services. [ 62 ] Dr.

Fisher, in the forensic assessment, states that M.O.’s childhood “is replete with instability, including incidents of physical and sexual abuse, multiple residential moves, difficulties in sustaining school placements, patterns of substance usage problems and association with negative peers, all of which has resulted in a cycle of recurrent criminalized difficulties and periods of incarceration.” (p.1) [ 63 ] M.O. was last in regular school in January, 2007, in grade 9 at Gordon Bell. His attendance was very poor.

There were incidents of his defacing school property, there was an incident when M.O. brought a knife to school, and there were journal entries M.O. wrote about committing violent acts. [ 64 ] According to M.O. himself, all of his friends and acquaintances are involved in criminal activity and most are gang members.

He said he joined the B Side street gang in 2008 but says he quit in July 2010, although he has not told people in the community about this. [ 65 ] M.O. has used both drugs and alcohol, stating he believes he is addicted to marijuana. [ 66 ] M.O. expressed remorse about committing the offences. He wants to change his life, but says he does not think he needs any type of counselling or programs to do so. [ 67 ] Dr. Fisher says that M.O.’s behaviour seems situation specific. He has a low tolerance to cope with being upset so he copes poorly and acts out in an aggressive way.

He has significant limitations in his ability to use problem solving strategies. It is likely his history of abuse and early life experiences contributed to this pattern of internalized anger and resentment. Previous record [ 68 ] M.O. does have a prior youth criminal record.

This record is as follows: On May 2, 2007 he was convicted of: • Theft over $5000 • Occupant of motor vehicle taken without owner’s consent • Mischief under $5000 x6 • Theft under $5000 x2 • Fail to appear • Fail to comply with undertaking x2 • Possession of a weapon for dangerous purpose He was sentenced to 18 months probation on each charge, all concurrent. On October 26, 2007, he was convicted of: • Fail to comply with undertaking • Fail to comply with disposition x2 He was sentenced to 30 hours community service work on each charge concurrent.

On February 8, 2008, he was convicted of: • Fail to comply with disposition x 4 • Possession of a

Schedule II substance (CDSA) x2 • Fail to comply with undertaking x 3 He was sentenced to 12 months probation on each charge, concurrent. On July 2, 2008 he was convicted of: • Assault with a weapon • Unauthorized possession of a prohibited or restricted weapon He was sentenced to 90 days custody and 45 days under supervision in community (and 85 days pre-sentence custody), 6 months probation and a mandatory weapons prohibition.

On June 23, 2008, he was convicted of • Fail to comply with sentence x5 His sentence on these offences was concurrent to the immediately previous convictions (85 days pre-sentence custody, 90 days custody and 45 days under supervision in community, and 6 months probation). On September 29, 2009, he was convicted of offences committed March 3, 2009: • Possession of a weapon for a dangerous purpose • Public mischief He was sentenced to pre-sentence custody of 4 months, and custody of 1 day, as well as a firearms prohibition for 10 years. Other relevant factors (

A) Progress while in custody: Behaviour [ 69 ] M.O. has been in custody since March 3, 2009. He was at the Manitoba Youth Centre (“MYC”), but was moved to the Lakewood facility. He returned to MYC on September 30, 2010 but was sent back to Lakewood in October, 2010 due to his behaviour.

He remained at Lakewood until recently, when he was sent to Headingly Correctional Centre due to an incident at Lakewood which resulted in a criminal charge that is pending. [ 70 ] The pre-sentence report says M.O. has been involved in 31 incidents while in custody. [ 71 ] The sentencing materials filed by the Crown include incident reports about ten different incidents in which M.O. has had some involvement while in custody, and oral submissions were made about another three.

A review of the reports that were provided makes it clear that M.O.’s behaviour described in the reports generally falls into one of two categories: 1. Incidents during which M.O. has expressed verbal and/or physical aggression toward staff; and, 2. Incidents when he is provoked, usually by a verbal comment (being called a name, or being threatened) by another resident, and M.O. reacts aggressively, verbally and/or physically toward that other resident. [ 72 ] One of the reports references M.O. being threatened by another resident, though M.O. did nothing to provoke him.

There was no retaliation. [ 73 ] Three of the incidents involved M.O. physically fighting or hitting another resident. In each of these incidents, M.O.’s actions were provoked by another resident calling him names. In two of these three incidents, M.O. ended up being the one being the most physically injured. In one incident, another resident made a derogatory comment to M.O.

M.O. responded by punching that individual, and the resident who had made the comment and another resident then beat M.O. to the point of unconsciousness, as a result of which M.O. required hospital attention. [ 74 ] Another incident was initiated when another resident charged into M.O.’s room and M.O. reacted by punching him. [ 75 ] Three incidents demonstrated aggression toward staff. One involved M.O. writing threatening things in a notebook about staff. When confronted, he took responsibility and apologized to staff. In another, when a staff member was restraining him, he threatened to spit at him.

In the final incident, he was asked to return to his room. He refused and started threatening staff, and advising he had a weapon in his room. The staff note that his comments were “bizarre and random” and that “M.O.’s comments were extremely out of context to the situation and he became more confused as the incident went on.” [ 76 ] One incident report referenced a sexual assault by M.O. of another resident. A criminal charge was laid. M.O. has been tried, and convicted of that offence. [ 77 ] One incident was that M.O. got his restraints off and was waving them around. He calmed down and followed direction.

[ 78 ] Since the initial submissions were made by counsel on the Crown’s application, there were three further incidents in custody. One of these involved M.O. physically lunging at another resident, one of the same individuals with whom he has had trouble before during previous incidents. A second incident involved M.O. threatening staff when he was told to remove gang related graffiti in his room, and when told he could be charged, said he “didn’t care”. The third incident involved M.O. allegedly threatening staff physically with a broom to the extent that staff had to deploy pepper spray to disarm M.O.

M.O. was criminally charged in relation to this last incident, and that charge is pending. As a result of that charge, M.O. has been moved to Headingly Correctional Institute, an adult facility. [ 79 ] M.O. himself told the author of the pre-sentence report that he often becomes angry and, when he does, he swears, threatens, causes damage and sometimes gets involved in physical fights. He acknowledges becoming easily frustrated. Clearly, M.O. recognizes his difficulty controlling his anger, and his impulsivity.

Educational progress while in custody [ 80 ] The pre-sentence report stated that according to the teacher at MYC, M.O. had made a satisfactory effort on his school assignments, had a good attitude toward school, got along with most of his peers in school, but had issues getting along with certain classmates, and could be antagonistic and disrespectful at times to classmates. Social progress while in custody [ 81 ] The pre-sentence report says that M.O. says he quit the B Side gang in July 2010, and that he has told people in custody about this but not in the community.

However corrections records and incidents in custody suggest recent gang activity on the part of M.O. [ 82 ] M.O. says he had anger management counselling at MYC in 2009 but it did not help him better control his anger. [ 83 ] The pre-sentence report says M.O. does seem to be trying harder to make a change. He has good days when he follows directions well and interacts well with peers. [ 84 ] The incidents that M.O. has been involved in while in custody, though, confirm that M.O. continues to have difficulties getting along with at least certain peers. (

B) Prospects for rehabilitation [ 85 ] It is critical to consider any evidence about this, in determining whether a youth sentence could be long enough to rehabilitate M.O. so he could be reintegrated into society. [ 86 ] M.O. is assessed by the psychologists who met with him as a very high risk individual with respect to recidivism. [ 87 ] As previously indicated, Dr. Fisher links M.O.’s behaviour in terms of his lack of impulse control and anger management problems, which in turn have led to criminal behaviour, to his intellectual deficits. Dr.

Fisher says that given M.O.’s significant cognitive limitations, it is difficult to reassure the court he will be easily supervised in the community. He says that it is questionable as to the extent to which he could benefit from traditional correctional programs and learn from those programs to effect change at a community level. He needs counselling to help learn better anger management and impulse controls. But when he does return to the community he will need a high degree of structure in his daily routine, and should be referred to the supported living program. [ 88 ] Dr.

Somers says that medication is not the answer to deal with M.O.’s problematic behaviours. His behaviours are related to his cognitive impairment, and it is accommodations made by those in his environment that are required. [ 89 ] Dr. Somers says that long term treatment, in both scope and delivery will be required for M.O. to address his issues, but it is also important to modify his surroundings and experiences. In other words, M.O.’s successful management in the community depends not just on M.O. getting treatment, but also on accommodations being made by those around him. [ 90 ] Dr.

Fisher says that attempts have been made with M.O. at counselling while in custody, but with little success. [ 91 ] M.O. has stated that he wants to change his life, but does not think he needs programming or counselling to do so. [ 92 ] M.O. needs counselling and treatment to address his issues long term. He has been in custody for over 18 months.

The fact he does not seem to recognize that he needs this counselling and assistance, and that he continues to exhibit the behaviours that are of concern, namely impulsive and sometimes violent or threatening actions toward peers or people in authority, suggest he has not advanced very far, if at all, in his rehabilitation to date, and that much more needs to be done before M.O. can successfully reintegrate into the community.

Application of the

section 72 test: [ 93 ] The court must specifically look at the factors set out in sections 38(2) and (3) of the Y.C.J.A. : “s. 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” An adult co-accused involved in the same aggravated assault as M.O. has already pleaded guilty to the aggravated assault and has been sentenced. Mr. Kirstein was 19 years old at the time of the incident. He was sentenced to his time in custody of 13 months and 25 days at double credit and his one day court appearance. His sentence was the equivalent of nearly 28 months. ( R. v. Kirstein, June 29, 2010 Martin, J.).

So, we have a situation in which an adult was sentenced not for “the same offence committed in similar circumstances”, but in fact, for exactly the same offence. But the “circumstances” of M.O. and of Mr. Kirstein are not the same. The Crown’s case against Mr. Kirstein had difficulties. Also, very importantly, Mr. Kirstein cooperated with the Crown in its prosecution of other accused in this matter. The 28 month sentence was for Mr. Kirstein’s participation in the aggravated assault only, and not for any other offences. Accordingly, I conclude that s. 38(2) (

a) does not mandate that M.O. be given a sentence of 28 months or less. (

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. I will review below a number of authorities which canvass sentences for aggravated assaults for young persons and for adults. (

c) the sentence must be proportional to the seriousness of the offence and the degree of responsibility of the young person for that offence. Other than an offence from which death of the victim resulted, the aggravated assault committed by M.O. is the most serious of offences. (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons. Given the violent nature of the offence and M.O.’s record, there is no sanction other than custody that could reasonably be considered. (

e) subject to paragraph (c), the sentence must: a. be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), b. be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and c. promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. [ 94 ] Under section 38(3) the factors to be considered are: (

a) the degree of participation by the young person in the commission of the offence .

M.O. fully participated in both offences. (

b) the harm done to the victims and whether it was intentional or reasonably foreseeable The harm done to the victim was extreme and irreparable. Short of being killed, the harm done was of the worst type. He has been forever robbed of his quality of life, of control over his own thoughts and movements and of his ability to make choices. His family members have been robbed of the son, brother, nephew and cousin that they knew, and have had imposed on them a lifetime responsibility of providing full time care. The harm caused was intentional. The whole purpose of the attack was to beat a member of a rival gang. The harm that resulted was reasonably foreseeable. (

c) any reparation made by the young person to the victim or the community. M.O. has made no reparation (

d) the time spent in detention by the young person as a result of the offence. M.O. has spent 18 months in pre sentence custody (

e) the previous findings of guilt of the young person. M.O. has a significant record, set out earlier (f)) relevant aggravating and mitigating factors related to the young person or the offence. The only mitigating factor is that M.O. entered guilty pleas to these offences, thereby ensuring convictions were secured.

By entering such pleas, M.O. takes responsibility for the offences. [95] As to the aggravated assault there are the following aggravating factors: • it was perpetrated on an unsuspecting victim, who was entitled to be where he was; • it was entirely unprovoked; • the attack was planned by those perpetrating it, including M.O.

The plan was to find a member of a rival gang in their gang’s territory and beat him; • it was a group attack on a lone victim, targeted based on the colour of his skin; • it was gang motivated; • a weapon was used by one of the co-accused; • the attack was relentless and repeated; • even after the victim was on the ground and not moving, he was further assaulted;

• the victim was left lying on the ground, beaten; M.O. did nothing to get help for the victim; • at no time did M.O. cease the attack; • the harm done to the victim is irreparable, lifelong and has robbed him, and his family, of quality of life; and • M.O.’s level of moral blameworthiness is very high. His actions were one step away from manslaughter. [96] As to the weapons offence, the aggravating factors are: • The firearm was actually used • He knew there were people inside the house when the firearm was discharged • The offence was gang motivated Also, at the time of both offences, M.O. was on probation.

Consideration of the authorities : Cases provided by the Crown Appropriateness of youth sentence [97] In the R. v . A.O . case, two 16 year olds pleaded guilty to 6 armed robberies. Each had a significant youth record for offences including violence. Each was on multiple probation orders. The robberies were of convenience stores, involved the use of disguises and in some cases a knife, and in one an imitation firearm. Several of the clerks were beaten and had permanent injuries. Both offenders had been involved in a couple of institutional incidents while in custody.

Each had spent two and a half years in pre-sentence custody. The Crown’s application to have both sentenced as adults was granted. The offenders were given pre-sentence credit for three years and sentences going forward of eight years. These sentences were upheld by the Ontario Court of Appeal. [98] In The Queen v. R.L . 2009 MBQB 137 , McKelvey, J. ordered an adult sentence be imposed on a young person for four counts of robbery with a firearm. These were robberies of convenience stores, done with co-accused. All wore disguises. The adult co-accused brandished an unloaded rifle at all four locations.

The accused was 16 and had no criminal record. His involvement in the robberies was putting the stolen goods into a bag and carrying the bag from the scene, but he was also responsible for the offences as a whole. No physical injuries at all were suffered by any of the clerks involved in these incidents, and there was no overt physical violence. The harm to the victims was psychological. This decision is currently under appeal. [99] In R. v. Bird , 2008 ABQB 327 , an adult sentence was imposed on a young person. She was found guilty, as a party, of manslaughter, aggravated sexual assault and kidnapping.

She was 17 years old at the time and had no record. She ceased being a willing participant in the offences at some point but had been involved in the planning. She came from an unfortunate background, and had a substance abuse problem. She had been in pre-sentence custody for 3 years. The court held, even taking into account that 3 years, that a further sentence of three years would not be sufficient to hold her accountable and ordered an adult sentence. [100] In R. v.

B.K.T.S . 2009 MBQB 56 , the Crown applied for an adult sentence for a young person on one count of armed robbery of a gas station, wearing a disguise while committing an indictable offence and failing to comply with a condition of an undertaking. He was 15 at the time of the offences, and was 19 years old at the time of the Crown application. He had no record, though had been bound by two release orders at the time of the offences. He was subsequently convicted of offences that had pre-dated the armed robbery, including manslaughter, for which he was sentenced as an adult.

An adult sentence was imposed. [101] In R. v. Simpson-Rowe

(2009) Ont. S.C., the Crown applied for an adult sentence for an offender found guilty of one count of second degree murder, two counts of aggravated assault and five counts relating to a firearm. He was 17 years old at the time. He had spent more than three years in pre-sentence custody. He has a number of other convictions. He had a troubled upbringing. He had ADHD. There were incidents in custody. While in custody he did work on his education and there had been some positive behaviour changes, and a noticeable improvement in his attitude. He had the cognitive abilities to be successful.

An adult sentence was ordered. [102] In R. v. Smith 2009 MBQB 54 , the Crown sought an adult sentence for a young person who pleaded guilty to manslaughter. The incident was a beating that resulted in the victim’s death. He was 17 at the time of the offence and was 21 at the time of the hearing of the application. An adult sentence was imposed. [103] In R. v. J.J.T. 2010 MBQB 216 , Suche J. held an adult sentence was required for an offender for three counts of first degree murder and three counts of attempted murder. He was 15 at the time.

He was a high ranking gang member and continued his gang activities in custody. In this case, the court did comment that the offender’s activity was a case of a younger boy following older males.

The court pointed to the offender’s vulnerabilities and the “welcoming arms of gangs” turned the scenario “into a recipe for the mostdeadly silence”. There was evidence that the offender could eventually safely be reintegrated into society. But the court specificallypointed to his entrenchment in gang life, and said the real and dangerous presence of gangs in and out of institutions mean that suchreintegration can only happen with years of intense therapy and programming and a dedication to change.

The court held a youthsentence would not provide a meaningful consequence and may well not allow enough time for the treatment necessary to permit his safereintegration into society. [104] In R. v. Lights, 2007 ONCJ 173, the Crown sought an adult sentence for an offender for his involvement in two serious offences.The first was a home invasion type of robbery during which a victim was shot and nearly died. A group of four committed the offence,and the group beat the victim and one shot him. The offender’s precise role could not be determined.

The Crown could not prove hewas the one who fired the gun, and the evidence suggested he was not. The second incident was a robbery with firearm and relatedoffences again committed with a group of people. Again the Crown could not prove the offender’s precise role in this group of offences. He participated in the robbery and attack, but it could not be proved that he carried the weapon or was personally involved in the assault.The fact his exact participation could not be proved was not a reason not to impose an adult sentence. He was fully responsible for theoffences.

The offender was 17 at the time and was 18 at the time of the hearing. He had a youth record for some serious offences. Bothoffences were “missions” carried out by a street gang that he was a member of. Adult sentences were ordered. [105] In R. v. M.K. (J. Meyers, June 27, 2002), a young person was sentenced as an adult. The offender, who was on a temporary passfrom the youth detention centre while serving open custody, with a co accused, beat a 69 year old man. After a number of punches, theman crumpled to the ground, unconscious. But the offender and his co-accused continued to kick him about his body and head.

Theythen beat him with a baseball bat they took from him and with pickets from the victim’s fence. They beat him beyond recognition. Theoffender was 17 at the time. The victim suffered serious injuries. He had to have extensive reconstructive surgery. He struggled everyday with pain to his head and body and he will never fully recover. The offender had a significant record. The pre-sentence reportshowed an explosive temper, and that the offender was easily agitated. He was abused as a child. He was doing well in custody andworking on his GED. He had ended his gang involvement.

But he had a drug and alcohol problem and he had not embraced angermanagement programming. He was hard to manage in custody. He was given a sentence equivalent to 5 years. Cases provided by defence Appropriateness of youth sentence [106] R. v N.(P.) [2008] B.C.W.L.D. 5739, BCPC. Two youth offenders punched and kicked a victim in the face and head, andabandoned him unconscious on the ground. The victim was in a coma for five weeks and had traumatic brain injury resulting in memoryimpairment. Accused pleaded guilty to aggravated assault. Crown applied for adult sentences.

Accused had no record and were low tomoderate risk to reoffend. They pursued their education while in custody and had supportive families. Accused were sentenced underthe Y.C.J.A. because principles allowed a sentence of sufficient length to hold them accountable for their offending behaviour. Theyreceived credit of 8 months pre-sentence custody, and a custody and supervision order of 6 months, and probation of 11 months. One ofthe accused was 15 at the time and the other was 17. Neither had a criminal record.

In deciding a youth sentence was sufficient, thecourt relied on the fact these youths had no prior record; they had no established pattern of aggressive or violent behaviour; the incidentwas isolated in the sense it was not part of an ongoing gang war; neither accused had any psychological disorder nor any intellectualdeficits; there was no evidence of a substance abuse problem; they had supportive families; they both did well in custody with oneexception, ; they had pursued their education and were respectful to staff and peers; and prior to this incident they were not living anantisocial lifestyles – they were not involved with gangs, and their risk to reoffend was low to moderate.

Also the court found that theactual prison sentence that would be imposed if sentenced as adults would almost certainly be within the range that could be imposed ina youth sentence. [107] In R. v. D.B. 2008 SCC 25 , [2008] 2 S.C.R. 3, the SCC held the onus provision for a presumptive offence isunconstitutional. A young person got into a fight with another and knocked him to the ground and punched him. The victim died. Theyoung person pleaded guilty to manslaughter. He was 17 years old, and was given a 3 year youth sentence.

The Supreme Court ofCanada confirmed that a number of the provisions of the Y.C.J.A. recognize the presumption of reduced moral blameworthiness of youngpersons. Sentences for aggravated assault generally - adults [108] In R. v. Besaw 2004 MBCA 196 , [2005] 7 W.W.R. 618, the Manitoba Court of Appeal, reduced the sentence of an adult convicted of aggravated assault to 16 months incarceration. The accused had no prior record, expressed remorse and had goodprospects for rehabilitation. The incident arose as a spontaneous fight. [109] In R. v.

Taylor 2008 MBPC 21, an adult was sentenced to a conditional sentence order of 2 years less a day for an aggravatedassault. The victim actually struck the offender in the head first; the response of the offender was to punch the victim, who fellbackwards and the offender fell on top of him; the offender then took hold of the victim by his upper body or head and caused the back ofthe victim’s head to hit the pavement. The result was permanent damage to the victim. He sustained head injuries that resulted in himbeing on life support with no prospect for rehabilitation. The offender had no record.

Sentences for aggravated assault – young persons (no application for adult sentence) [110] In R. v. C.(K.), 2007 MBCA 117, a young person pleaded guilty to aggravated assault. The accused had no prior record. Theaccused was sentenced to 12 months. On appeal the time in custody of 4.5 months was noted, and a sentence of 7.5 months custody andsupervision was made. The accused had been involved in a fight with several other female youths and stabbed the victim in the back. [111] In R. v.

C. (W.K.) 2004 CarswellBC 575, the BC Provincial Court dealt with sentencing of a youth , 17, involved in a senselessand tragic beating of a victim. The accused had spent 5 months in pre-sentence custody, and was found guilty of aggravated assault aftertrial. Another of the co-accused received three months custody and supervision plus a six month ISSP order and one year probation. Hesuffered a head injury and long term disability. He needed assistance with all aspects of daily living. The accused did take steps to helpthe victim after the beating. This accused had little or no insight into his conduct.

He denied his involvement and had been reluctant toparticipate in programming. He was 14 at the time. He had a chaotic upbringing. He had some record but it was not significant. TheCrown did not seek an adult sentence. The sentence was equivalent to ten months custody and supervision to be followed by an ISSPorder and then one year of probation. [112] In R. v. M. (T.)) 2005 ABPC 157 , 2005 CarswellAlta865, a 17 year old, along with a 16 year old co-accused, engagedin an unprovoked, vicious assault on the victim. He pleaded guilty to aggravated assault. The victim told the accused to pick up hislitter.

In response, the offender assisted the co-accused in striking the victim. The two young persons hit the victim about 50 times. Thisyoung person broke off the assault and left while the co-accused continued the assault. The victim was rendered unconscious. Hesustained lacerations requiring sutures, and a severe concussion. He missed work. He sustained physical effects including a brain injuryand emotional trauma. The offender had no record. A sentence of 333 days custody and supervision was imposed. [113] In R. v. T. (L.) 2007 CarswellOnt 9586, a number of young persons were charged with aggravated assault.

The group physicallybeat up the victim, kicking him and punching him in the face. An adult accused held a knife to the throat of the victim. He was knockedunconscious and had serious injuries to his face. The young person was not the main perpetrator and was a follower. He did kick thecomplainant three or four times. Each was sentenced to the equivalent of 24 months for the aggravated assault. The sentence wasadjusted on appeal due to the sentencing judge’s failure to properly deal with pre-sentence custody. [114] In R. v.

C.N. (ON CA), 2006CanLII 32902, the Ontario Court of Appeal sentenced a young person who,with three others, stalked another young person, caught him and, while his friends pinned the victim to the ground, the young persontook a box cutter and repeatedly slashed and stabbed the victim. He pleaded guilty to aggravated assault. The youth court judgeimposed a sentence of two years probation. The appeal court replaced that sentence with a custody and supervision order of ninemonths, and six months probation. The offender was 17. He was very remorseful. He had been attending counselling.

He had insight.He was pursuing college. Decision [115] In applying the test in section 72(1) of the Y.C.J.A., I have considered the purpose and principles set out in section 3(1)(b)(ii) andsection 38, and applied all of the information received by the court regarding M.O. and the offences. The two offences in question weremost serious and were committed in the context of many aggravating factors.

M.O. has significant cognitive deficits which mean that hewill require long term and significant counselling and treatment to get him to a point where he can successfully and safely reintegrate intothe community, and even then, major accommodations will need to be made for him.

He has already spent significant time in custodyand his behaviour in custody indicates that rehabilitative efforts have had little success to date and that in fact M.O. does not yetrecognize that he requires assistance to improve his behavioural functioning. [116] In this case, and bearing in mind the other offences for which M.O. remains to be sentenced as a youth, the length of time he hasspent in pre-sentence custody, and the maximum sentences that are available under the Y.C.J.A., I find that a youth sentence will not beof sufficient length to hold M.O. accountable for the aggravated assault and the possession of a weapon contrary to a weaponsprohibition.

Specifically, the maximum sentence available of two years custody and one year community supervision, even taking intoaccount all of the time M.O. has spent in custody pre-sentence, is not sufficient to hold him accountable for his offending behaviour. [117] I find that the Crown has satisfied me that an adult sentence should be imposed on M.O. for these offences. Accordingly, I grantthe Crown’s application and order that M.O. be sentenced as an adult for the offences of aggravated assault and possession of a weaponcontrary to a weapons prohibition, for which he was convicted on July 8, 2010. CARLSON, P.J.

Catherine Carlson, P.J. E R R A T U M There is one correction in the above judgement, as follows: In paragraph 50, page 13, ending at Seriousness and circumstances of the offences , the paragraph should read: THE ANALYSIS Application of the Law to the Facts of this Case [50]

Section 72 specifically says the court is to consider the seriousness and circumstances of the offences and the age, maturity, character, background and previous record of M.O. and any other factors the court may consider relevant. Dated this 10 th day of February, 2011. __ _ Catherine Carlson