R. v. S.O., 2014 MBPC 19

CITATION: R. v. S.O. , 2014 MBPC 19 Date: 20140514 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Dan Angus, ) for the Crown ) and ) ) ) S.O. ) Laura Robinson, Young Person ) for the Accused ) ) ) Reasons for Decision delivered ) May 14, 2014 ) Corrin P.J.

Restriction on Publication: This judgment is subject to section 110(1) of the Youth Criminal Justice Act , S.C. 2002, c. 1 (“YCJA”), which prohibits the publication of any information that may identify a person as having been dealt with under the YCJA. [ 1 ] On January 24, 2014 I ruled that this young person would be subject to a youth and not an adult sentence with respect to three offences occurring in an incident in November of 2012, notably a robbery use firearm, disguise with intent and carry concealed weapon.

The young person, S.O., also pled guilty to a charge emanating from January 15, 2013 for theft under. [ 2 ] The 2012 offences involved a robbery of cigarettes, cash and a baseball hat from a convenience store. The young offender brandished an unloaded sawed-off shotgun which he pointed at the store clerk.

The robbery was committed at the behest of an older gang member and was part of a gang initiation process. [ 3 ] The 2013 offence involved the theft of an iPhone. [ 4 ] The Crown is seeking a maximum three-year sentence; a two-year open custody order to be followed by one year community supervision with no credit for time served. [ 5 ] Defence counsel conceded that a custody and supervision order would be an appropriate sanction for her client, effectively agreeing that the presumption against custody set out in s. 39 of the Youth Criminal Justice Act (“YCJA”) has been rebutted.

However, it was her request that her client should receive an 18-month sentence; 12 months open custody followed by six months community supervision. It was also her recommendation that her client’s custodial sentence should be followed by an 18-month order of supervised probation. Ms Robinson also requested that her client receive 1:1 credit for his pre-sentence time spent in custody. [ 6 ] The central issue raised in this sentencing is therefore the appropriate length for a custodial sentence for these crimes, taking

into account the approximately 15 months that the young offender has already spent in pre-sentence detention. [7] S.O., now 18 years of age, has no prior criminal history. These offences are the first matters for which he has ever beensentenced. [8] The Crown has essentially submitted that taking into account all of the principles of sentencing under the YCJA, that only asignificant custodial sentence will hold S.O. accountable, provide a meaningful consequence, promote his reintegration andrehabilitation, recognize the harm done to the victims and contribute to the long-term protection of society.

Particular emphasis was puton public deterrence and the protection of society in such regard. [9] Pointing to her client’s excellent behaviour in custody, Ms Robinson feels that it is particularly important that her client havean opportunity to effectively transition back to community living. She also emphasized that there is nothing in his history or any of thesentencing materials filed with the Court that suggests that community supervision would not work for S.O.

Defence counsel urged meto take an individualized approach to the sentencing of her client and to focus primarily on his rehabilitation with less emphasis on publicdeterrence. [10] Defence counsel also highlighted certain mitigating factors in her submission, notably that her client was an Aboriginal youthwhose early life had been disrupted by considerable turbulence and disruption, that he has no prior convictions for any offences let aloneprior convictions for any violence-related offences, that he entered guilty pleas to these offences at the earliest opportunity and hasthereby taken responsibility for what he has done, and although a weapon was present at the robbery it was never meant to be used andwas disabled as no bullets were ever put in the shotgun.

Defence counsel accordingly urged me to take an individualized approach to thissentencing and to focus primarily on his need for rehabilitation and treatment with less emphasis on the protection of the public. [11] In R. v. L.C.C., 2005 BCPC 611, Werier J. observed at paragraph 12 that the case law in British Columbia supported a sentenceof between nine to eighteen months for a youth convicted of just one count of robbery. Reference was made in such regard to thefollowing cases: R. v. R.A.H., 2005 BCJ No. 1315; R. v. M.A.J., 2005 ONCJ 64 , 2005 OJ No. 829; R. v. R.J.E., 2004 SJ No.533; R. v.

J.W.E., 2003 OJ No. 5998; R. v. S.(D.R.), 2003 SKPC 84 , 2003 SJ No. 357; R. v. T.B.C., [1992] B.C.J. No. 805. [12] The Manitoba jurisprudence suggests a similar range even where ameliorative Gladue factors are absent: R. v. A.R.W., 2008MBCA 50 (a six-month deferred custody order given to a non-Aboriginal youth with respect to a series of armed gas bar robberiesspanning several months, followed by 18 months of supervised probation); R. v.

A.B., 2012 MBCA 25 (a nine-month total sentencewhere a robbery victim had been stabbed by a 15 year old young offender with no prior record, followed by a one-year supervisedprobation order. The youth had also spent three months in pre-sentence custody.); R. v. M.(A.M.), 2003 MBCA 159 (a 17 year old youthwho had spent 68 days in pre-sentence custody was sentenced to a further six-month custody and supervision order to be followed by 12months supervised probation for two robberies, a theft under and an assault as well as a breach of probation. Both robberies involvedthreats of violence.); R. v.

T.(C.J.), 2010 MBCA 61 (a young person who had pointed a sawed-off shotgun at someone in a high trafficlocation , who was already on probation, was sentenced at first instance to a nine-month custody and supervision order after beingcredited with four months pre-sentence custody. The Court of Appeal upheld the sentence notwithstanding a positive pre-sentencereport.) [13] Another Manitoba Court of Appeal case involving an adult offender is also worthy of note in this respect as it is quitecomparable fact-wise to the case at bar. This case, R. v. Bruyere (1999), (MB CA), M.J.

No. 112, involved a youngman with no record who pled guilty to robbery of a convenience store clerk. The offender had approached the female victim frombehind and grabbed her by the throat with both hands, demanding money from the cash register. The Court of Appeal ordered that theoffender serve a nine-month period of imprisonment in the community by way of conditional sentence as the Court felt that there was areal possibility that the offender could be rehabilitated once and for all.

In the Court’s view this decision is useful for comparisonpurposes notwithstanding that conditional sentences (CSO) were statutorily banned for these types of offences in 2007.

Indeed, it seemslikely that Bruyere would have received a shorter custodial sentence if not for the imposition of the CSO based on the dicta of theSupreme Court in the Proulx decision. [14] Section 38(2) of the YCJA requires that sentences not result in punishment that would be greater than that which “would beappropriate for an adult who has been convicted of the same offence committed in similar circumstances.” It also requires that suchsentence be “similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed insimilar circumstances.” [15] A sentencing conference was held on April 11 of this year.

At that conference Dr. Brian Chaze, a psychiatrist working withMental Health Services for Children, Youth and Families observed that he did not regard a structured custodial setting as beingparticularly important for S.O. going forward. Observing that S.O. was fairly high-functioning socially, Dr. Chaze noted that his riskfactors did not tend to push him towards impulsive acts. Describing S.O. as reasonably intelligent and capable of post-secondaryeducation, Dr. Chaze expressed concern that a continuing incarcetory setting would provide the young offender with few new socialskills. It was Dr.

Chaze’s opinion that a jail sentence would not promote S.O.’s rehabilitation and reintegration. [16] Another attendee at the case conference, Mr. Mitch Bourbonniere, a consultant with the Probation Spotlight Program, expressedhis opinion that there were three priorities for S.O. going forward: 1. Healing with his family; 2. Effective treatment for his drug and alcohol issues; and 3. The need to assist S.O. develop independent living skills in order to prevent further gang attachment. [17] The Court was advised that Probation Services would be retaining Mr.

Bourbonniere as a contracting consultant with respect toS.O.’s supervision in the community. He would be responsible for implementing the Spotlight Program and the family counseling.

[ 18 ] The conference also heard from Ms Angie Hampson, the person who would be responsible for S.O.’s probation supervision in the community. Ms Hampson indicated that she would not only be retaining Mr. Bourbonniere to assist with rehabilitation but also would be linking S.O. to a Street Mentor who would directly deal with gang detachment issues. Ms Hampson also indicated that Mr. Jeremy Hennessey, a Rehabilitation Counsellor with the Addictions Foundation of Manitoba working with Youth Probation clients, would be tasked to assist S.O. with respect to his substance abuse issues. Mr.

Hennessey was present at the case conference and provided case specific information at such time. Ms Hampson also noted that S.O.’s file would be referred to the specialized Intensive Support and Supervision Program (ISSP) where non-compliance would be dealt with immediately. [ 19 ] It is important for the Court to remember that pursuant to s. 38(2) (e)(

i) of the YCJA that I am required to impose the least restrictive sentence possible that is capable of achieving the purposes of sentencing set out in s. 38(1) . It must be the sentence most likely to rehabilitate S.O. and to reintegrate him into society and promote in him a sense of responsibility, while acknowledging the harm done to the victims and the community. It is also clear that I must also consider the factors set out in s. 38(3) in determining the appropriate sentence. These factors include the degree of participation of S.O. in the commission of the offence as well as the harm done to victims of same.

In this regard I must also consider the time spent in detention by the young offender as a result of these offences which is now approximately 15 months. Previous findings of guilt, if they had existed, would also have had to be taken into account in such respect. Finally, the Court must consider any other aggravating and/or mitigating circumstances related to S.O. or the offences that are relevant to the purpose or principles set out in the YCJA.

It goes without saying that the circumstances of the robbery, being weapon and gang-related, were aggravating in this regard. [ 20 ] Pursuant to s. 40 of the YCJA I am also required to consider any pre-sentence report before making a decision about the appropriate sentence. In this case I have had the assistance of two pre-sentence reports and have carefully considered all the contents of same in my deliberations.

The first report makes clear that S.O. has had an unfortunate and often difficult childhood largely because of his parents’ substance abuse issues and poor parenting skills and as a consequence thereof was made a permanent ward of the Anishinaabe Child and Family Services Agency. Unfortunately, since he has recently turned 18 he will no longer be subject to their guidance or support. The information provided in the report suggests that S.O.’s family has been affected by the inter-generational impacts of the residential school system and colonialism generally.

Virtually all of his brothers are gang-related, suggestive of a family susceptibility to gang influences. Indeed, S.O. was initially recruited by his chosen gang by one of his older brothers. [ 21 ] Section 50(1) of the YCJA provides that

Part XXIII (sentencing) does not apply in respect of proceedings under the YCJA except for paragraph 718.2(e), the sentencing principle for Aboriginal offenders. The Gladue requirements therefore pertain to youth sentencing. Accordingly, a dysfunctional upbringing which informs or creates a marked susceptibility to gang membership and substance abuse are appropriate considerations in a sentencing decision involving an Aboriginal youth with S.O.’s background history.

The Court is therefore of the view that given all the prevailing circumstances S.O. is entitled to be viewed as less morally culpable for his criminal involvement than otherwise might be the case. The lifelong systemic and individual factors prevailing upon S.O. appear to have been well beyond his personal control and coping capacity. [ 22 ] As was mentioned in the pre-sentence reports, there is no direct evidence as to whether S.O. will likely do well in the community under supervision. This is because he has never had the benefit of being supervised as a consequence of any prior sentences.

However, the second supplementary report makes clear that he has already benefited considerably from a structured environment in the youth detention centre where he has been attending school regularly as well as participating meaningfully in other programs that have been available to him in custody. [ 23 ] As previously mentioned, there is little in the material before me that reflects the need to promote the long-term protection of society.

S.O. does not have any noted propensity for or history of violence. [ 24 ] Section 38(1) of the YCJA requires that courts impose “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. [ 25 ] Section 38(2)(

c) addresses proportionality. This principle is very important in its practical application, given the limitation in s. 3(1)(b)(ii) that it be consistent with the greater dependency and reduced maturity of young persons.

Professor Nicholas Bala discussed proportionality in the context of s. 3(1)(b)(ii) at page 92 of his text, “Youth Criminal Justice Law” (Irwin Law Inc. 2003) as follows: Section 3(1)(b)(ii) provides an important qualification to the principle of accountability: the consequences imposed should be a fair and proportionate response to the offence and record of the youth and should be consistent with the greater degree of dependency of young persons and their reduced level of maturity. [ 26 ] The principle requiring consideration of alternatives to custody is on equal footing with the other principles in s. 38(2), including parity and proportionality.

Additionally, s. 39(2) requires, even where a custodial sentence is permissible having regard to the criteria in s. 39(1), that a court consider alternatives to custody. Sections 38(2) (d), 39(2) and 39(3)(

a) contain the qualification that the court need only consider those alternatives that are reasonable and available. Section 39(3)(

c) also speaks to consideration of those alternatives to custody used in similar circumstances. [ 27 ] In keeping with the YCJA

Preamble that the youth justice system “reduce the over-reliance on incarceration for non-violent young persons,” Parliament has provided a sentencing framework that insists upon a step-by-step process during which careful consideration is given to the decision to impose a custodial or non-custodial sentence. Section 39(2) makes clear that this step-by-step process applies to all offences, including those involving violence. This certainly suggests that Parliament was very concerned that custodial sentences not be overutilized as a “quick fix” in reference to young offenders.

In this regard, it is my firm belief that when dealing with a young offender without any prior record that the Court must refrain from imposing sanctions for what the young person might do, as opposed to imposing sanctions for something that he has actually done. This is especially the case when there is no prior criminal history and the matter of future behaviour is simply one of opinion or speculation rather than proven or undisputed fact. [ 28 ] In making my decision respecting the appropriate sentence, the Court is also aware of the importance of the review process that

is integral to youth custodial sentencing. The availability of such process assures that offenders can be reassessed and make certain thatappropriate treatment or assistance is being made available to them.

It introduces an aspect of review and flexibility into the sentencingprocedure with the result that marked improvement in the behaviour, outlook and performance of the offender can be rewarded anddeterioration assessed and dealt with. [29] I have decided that a lengthy period in custody going forward will not be a meaningful consequence for S.O. as it will not be themost effective means of promoting his rehabilitation and eventual reintegration into society. For the reasons I have mentioned, I am alsoof the opinion that same will not necessarily promote the long-term protection of society.

I have determined that the appropriate globalsentence for S.O. for these crimes is a custody and supervision order of 18 months. [30] S.O. has been in custody on these charges since his arrest in mid-January, 2013. The YCJA gives no specific direction abouthow time in custody is to be taken into account except to state in s. 38(3)(

d) that a judge shall take “the time spent in detention by theyoung person as a result of the offence” into account. Accordingly, although a judge has the discretion to give such time in detentiononly partial or even no credit based on the offender’s need for further custody or community supervision, it is generally the case thatpre-sentence custody is given credit. Indeed, it is conventional for Manitoba prosecutors to approve a 1:1 pre-sentence custody credit inthe vast majority of cases although no absolute mathematical formula must be applied (see R. v.

B.(T.) (2006), (ONCA), 78 O.R. 721, particularly para. 34, and R. v. D.A.I. (2003), BCJ No. 2834). These cases certainly support such an approach,suggesting that credit should be usually provided for every day spent awaiting sentencing. Accordingly, since S.O.’s time in custodyappears to have been used to his advantage insofar as his rehabilitation and his reintegration are concerned, I have decided to take suchtime into account in imposing my sentence. [31] I accordingly find it appropriate to credit him with a day for every day that he has served in custody, a one-to-one ratio.

I amsatisfied that the credit that he should receive for this time served is currently 455 days or 15 months. [32] I therefore sentence S.O. to an additional global sentence of two months in custody and a one-month community supervisionorder in accordance with the YCJA legislation. S.O. is accordingly to serve two-thirds of such time in open custody to be followed byone-third of such time under supervision in the community subject to conditions.

In my view such a sentence will strike a balancebetween meaningful consequences and the need to advance and promote S.O.’s rehabilitation and reintegration into the community. Indoing so I also take into account the total time which S.O. will have been in custody as a result of the sentence I plan to impose today.

Iremind S.O. that if he breaches any of the conditions while he is under supervision in the community, he may be brought back intocustody and required to serve the remainder of the second period in custody as well. [33] While under community supervision, after his release from custody, S.O. shall be subject to the statutory conditions contained ins. 97(1) of the YCJA.

There may be additional terms included in this portion of the community supervision order which will be at thediscretion of the Provincial Director as per s. 97(2). [34] The Court also imposes a s. 51(1) weapons prohibition for the minimum period of two years. This

section provides that theprohibition begins on the day that it is made and is to end not earlier than two years after S.O. completes the custodial portion of hissentence. [35] Finally, because I firmly believe that S.O. requires long-term behaviour management in a community setting in order to promotehis rehabilitation, I hereby order that he be placed on 18 months supervised probation subject to the following conditions following hisrelease from custody and community supervision: 1.

He is to report to a Youth Worker within two working days after his release from custody and thereafter as directed from time totime and not less than once monthly during the first year; 2. He is to reside with his father or as directed by the Provincial Director; 3. He is to attend, participate and satisfactorily complete the Intensive Support and Supervision Program as directed by his supervisor; 4. He is to observe any curfew as directed by his supervisor or a Youth Worker associated with the ISSP; 5.

He is to attend, participate and satisfactorily complete any counselling and/or program as directed by his supervisor, includingsubstance abuse treatment and/or counseling including residential treatment, if ordered; 6. He is to attend school regularly and/or seek and maintain employment or job training as directed by his supervisor; and 7. He is to abstain from the consumption and possession of alcohol and all drugs, except in accordance with a current medicalprescription; and 8. He is to have no contact or communication with either of his victims. Original signed by: CORRIN, P.J.