2011 MBPC 47, 2011 MBPC 47

Citation # 2011 MBPC 47 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Debbie Buors, for the Crown ) - and - ) ) M.O. ) Theodore L. Mariash, for the Accused ) ) ) ) Judgment delivered: June 24, 2011 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.

Reasons for Sentence Introduction [ 1 ] M.O. has been convicted of five offences. [ 2 ] This is the Court’s decision as to sentences to be imposed on M.O. for those offences. [ 3 ] M.O. is now 19 years old. [ 4 ] M.O committed each of these offences before he was 18 years old, and when he was a “young person” as defined in the Youth Criminal Justice Act, S.C. 2002, c.1 ( “Y.C.J.A.”). [ 5 ] M.O. is being sentenced for three of the offences as a young person and pursuant to the Y.C.J.A. These offences are: • Careless use of firearm, contrary to s. 86(1) of the Criminal Code , committed on February 21, 2009.

M.O. pleaded guilty to this offence. • Assault on September 1, 2009, contrary to s. 266 of the Criminal Code , committed while M.O. was in custody at the Manitoba Youth Centre. M.O. pleaded guilty to this offence. • Sexual assault on September 6, 2009, contrary to s. 271 of the Criminal Code , committed while M.O. was in custody at the Manitoba Youth Centre. M.O. was convicted of this offence after trial. [ 6 ] With respect to the two other offences, the Crown applied, pursuant to section 64(1) of the Y.C.J.A. to have M.O. sentenced as an adult, rather than as a young person. That application was opposed by M.O.

On January 19, 2011, I granted the Crown’s application, and ordered that M.O. be sentenced as an adult. [ 7 ] The two offences for which M.O. is being sentenced as an adult are:

• Aggravated assault, contrary to s. 268 of the Criminal Code , committed on February 9, 2009; and • Possession of a firearm while prohibited by a weapons prohibition, contrary to s. 117.01(1) of the Criminal Code , committed on February 21, 2009, and arising out of the same incident as the careless use of firearm offence. [ 8 ] M.O. pleaded guilty to both of these offences. [ 9 ] M.O. has been in custody continuously since March 3, 2009. [ 10 ] The Court heard submissions as to sentence on February 23 and March 16, 2011. [ 11 ] The following were filed as exhibits at the sentencing hearing: • A book of Sentencing Materials, which contains: o A Pre-Sentence Report for M.O. dated August 26, 2010; o Two forensic reports for M.O. dated September 1, 2010 and September 3, 2008; o A compilation of incident reports as to M.O.’s behaviour while he has been in custody; o A report recommending M.O. be moved from the Manitoba Youth Centre (“MYC”) to the Lakewood facility; o M.O.’s criminal record; and o A Victim Impact Statement prepared by the father of the victim of the aggravated assault. • A Pre-Sentence Report for M.O. dated August 18, 2008; • A Pre-Sentence Report for M.O. dated April 27, 2007; • Two photographs – one of the victim of the aggravated assault taken before the assault, and one taken afterwards; • A Victim Impact Statement prepared by the victim of the weapons offences; and • A Record of Health Care from the Health Sciences Centre setting out the medical treatment provided to the victim of the aggravated assault. [ 12 ] Both counsel filed Books of Authorities. [ 13 ] The Court has considered all of the sentencing materials filed, information provided by counsel during submissions, and case law provided. [ 14 ] The reasons for my decision to impose adult sentences on M.O. for the aggravated assault and possession of a weapon contrary to a weapons prohibition are set out at 2011 MBPC 5 , and should be read together with this decision.

The Issue [ 15 ] The ultimate issue for the Court is to decide what the appropriate sentences are for M.O. for the offences he committed. The Circumstances of the Offences The aggravated assault [ 16 ] On February 9, 2009, the victim was physically beaten by M.O. and a number of others. 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 spotted the victim, and based solely on the colour of his skin, which was dark, assumed that he was a member of the African Mafia gang. M.O. and up to six others attacked him, without any provocation whatsoever. The B Side members hit the victim in the face, punched and kicked him, and one of them hit him in the head 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. They continued to beat the victim even after he had fallen to the ground, and then left him.

[17] The victim was 19 years old. The impact of the offence on the victim and on his family has been horrendous, life changing andpermanent. He sustained severe brain injury as a result of the beating. His promising future and quality of life was taken away by theactions of M.O. and his cohorts.

He will require around the clock care for the rest of his life, which will be a huge financial, emotionaland physical strain on his family indefinitely. [18] Based on the admissions made by M.O., I accept that M.O.’s involvement was punching and kicking the victim, as part of anoverall group attack, and then leaving the scene. Even if M.O. left the scene before the victim was hit with the bat, as M.O. says, he didnothing to assist the victim. M.O. is responsible for the results of the full attack and the devastating injuries caused to the victim.

The firearms offences [19] On February 21, 2009, just 12 days after the aggravated assault, M.O. and his fellow gang member, Mr. Kirstein, went to aresidence with a loaded sawed off shotgun. One of them knocked on the door. Then one of them fired the shotgun into the homethrough a window, both of them knowing there were people inside the house. It is not known whether it was M.O. or Mr. Kirstein whohad the gun, nor which of them fired the shot. M.O. says it was not him. The Crown did not call evidence to prove that it was.

Insentencing M.O. on these offences, I consider that M.O. did not fire the shot, but was there, knowing the reason for the attendance at theresidence with the shotgun. The assault [20] This offence was committed on September 1, 2009, at the Manitoba Youth Center (“MYC”) where M.O. was in custody. M.O.punched the victim, another resident at MYC, one time in the jaw with his fist. The hit caused some bleeding to the victim and his jawand cheek were swollen. It seems that M.O. hit the victim because M.O. thought the victim had called him “a bitch”.

The sexual assault [21] This offence was committed on September 6, 2009, five days after the assault. It was also committed while M.O. was incustody at MYC. The victim was another MYC resident. [22] This matter proceeded to trial and M.O. was convicted of the offence. It was found at trial that M.O. had gone into one of thebathrooms off the common area of his MYC unit, and there had bent the victim over the bathtub and held the victim’s arms behind hisback, after pulling the victim’s pants down.

A staff member walked in on the pair and found them in that position, and fortunatelystopped the incident from going any further. While M.O. had the victim in that position he threatened the victim that he was going to“push your shit in”. The victim testified that he felt scared and he was upset. The Circumstances of M.O. [23] M.O. is an aboriginal offender.

Section 718.2(

e) of the Criminal Code requires that the Court, on sentencing, take intoaccount the principle that: “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders”. [24] This applies to both adult and youth sentencings. [25] No Gladue report was done with respect to M.O. Counsel requested the requirement for a Gladue report be waived.

Defencecounsel was able to provide the court with some information about M.O.’s home community and information relative to M.O.’s familyof the type that would be expected to be in a Gladue report. The Supreme Court of Canada has said in R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207 that where an offence involves violence and a firearm there is “little difference in penalty betweenaboriginal and non aboriginal offenders”. Given the violence in the aggravated assault and the firearm in the weapons offences, there areno sanctions other than imprisonment that are reasonable in the circumstances.

Gladue factors, while providing some context, would notreduce the sentence for M.O. In the circumstances, the requirement for a Gladue report was waived by the Court. [26] M.O.’s parents separated when he was 12 years old. He reports that both parents had assaulted him. He now has a goodrelationship with his mother and her partner. There was some involvement with Child and Family Services. [27] Dr.

Fisher, at page 1 of his forensic assessment, notes that M.O.’s childhood: “is replete with instability, including incidents of physical and sexual abuse, multiple residential moves, difficulties in sustaining schoolplacements, patterns of substance usage, problems and association with negative peers, all of which has resulted in a cycle of recurrentcriminalized difficulties and periods of incarceration.” [28] M.O. last attended regular school in January, 2007 in grade 9 at Gordon Bell. He had poor attendance. He was involved in

incidents at school, including bringing a knife to school, and he made journal entries about committing violent acts. [ 29 ] M.O. himself says that 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, though he has not told people in the community about this.

The author of the Pre-Sentence Report dated April 27, 2007, prepared for one of M.O.’s first sentencings on mostly property related matters, described that M.O. had “gang envy”, was vulnerable to peer influence, a follower and spent considerable time doing gang “tagging” at MYC. In the August 18, 2008 Pre-Sentence Report, prepared for M.O.’s sentencing on breaches, assault with a weapon and possession of a prohibited device, the author described that M.O. had become very entrenched in the gang lifestyle and “tagged” his gang sign whenever opportunity permitted.

That report describes that even at that point, he was difficult to manage in custody. [ 30 ] M.O. has used both drugs and alcohol. He believes he is addicted to marijuana. [ 31 ] M.O. did express remorse about committing the offences. He says he wants to change his life but does not feel he needs any type of counselling or programs to do so. [ 32 ] Dr. Fisher says M.O.’s behaviour is situation specific. He has a low tolerance to cope with being upset, and he acts out in an aggressive way. He has limited capacity to use problem solving strategies. Dr.

Fisher says it is likely his history of abuse and early life experiences contributed to this pattern of internalized anger and resentment. [ 33 ] M.O. has been involved in criminal activity for the last four years, and has an extensive youth record. He has been sentenced on 6 prior occasions, for a total of 35 offences. These are 18 breaches of court orders, 11 property offences, 2 drug possession offences, and, most concerning, 4 weapon related convictions arising from 3 separate offence dates. On May 2, 2007, he was convicted of possession of a weapon for a dangerous purpose.

On July 2, 2008 he was convicted of assault with a weapon and unauthorized possession of a prohibited or restricted weapon. On September 29, 2009 he was convicted of possession of a weapon for a dangerous purpose and public mischief. M.O. has been placed on three probation orders.

For the last three sets of convictions, M.O. has received custodial sentences ranging from the equivalent of about a 7 month sentence for the assault with weapon and unauthorized possession of a prohibited or restricted weapon, to a sentence equivalent to 4 months of custody for the possession of a weapon for a dangerous purpose and public mischief convictions. Two weapons prohibitions have been imposed. [ 34 ] The offences for which M.O. was sentenced on September 29, 2009 (including having a firearm at school for intimidation purposes) were committed on March 3, 2009.

The aggravated assault and weapons offences for which M.O. is now being sentenced were committed on February 9, 2009 and February 21, 2009 respectively. The fact three extremely serious offences were committed by M.O. within less than one month shows a trend of escalation toward violence in M.O.’s behaviour. [ 35 ] M.O. has been in continuous custody since March 3, 2009. He was at MYC but was moved to Lakewood. He returned to MYC on September 30, 2010 but was sent back to Lakewood in October, 2010 due to his behaviour.

He was at Lakewood until November 30, 2010, when he was sent to Headingly Correctional Centre due to an incident at Lakewood which resulted in an adult criminal charge. [ 36 ] The Pre-Sentence Report says that M.O. has been involved in 31 incidents while in custody. The sentencing materials filed by the Crown include incident reports about ten incidents in which M.O. has had some involvement. Oral submissions were made by the Crown about another three incidents.

The incidents have involved M.O. expressing verbal and/or physical aggression toward staff or have been incidents when he has been provoked by another resident (being called a name or being threatened) and he has reacted aggressively, verbally and/or physically. It is important to note that M.O. has often, but not always, been the initiator of these incidents. [ 37 ] Three of the incidents in custody involved M.O. physically fighting another resident, in response to the other resident calling M.O. names.

Three incidents involved aggression toward staff. [ 38 ] The incidents seem to have escalated in terms of severity and physical aggression. Since the incident reports were filed by the Crown, there was another incident in which M.O. physically lunged at another resident. A second involved M.O. threatening staff when told to remove gang graffiti.

The third involved M.O. allegedly threatening staff with a broom to the extent staff had to use pepper spray to disarm him. [ 39 ] 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 agrees that he becomes easily frustrated.

He recognizes his difficulty controlling his anger and his impulsivity. [ 40 ] The Pre-Sentence Report indicated that M.O. had a good attitude toward school, made satisfactory effort on his school assignments and generally got along with most of his peers in school, but did have issues with certain classmates and could be disrespectful and antagonistic toward classmates. [ 41 ] M.O. had some anger management counselling at MYC in 2009. Based on the continued incidents in custody, he still struggles with controlling his anger. [ 42 ] The Pre-Sentence Report says M.O. does seem to be trying to make a change.

He has good days when he follows directions and interacts well with peers. [ 43 ] M.O. is assessed by the psychologists who met with him as a very high risk individual with respect to recidivism. [ 44 ] 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 in the community. He needs counselling to help learn better anger management and impulse control. When he does return to the community he will need a high degree of structure in his

daily routine. [ 45 ] According to Dr. Fisher, medication is not the answer for M.O. His behaviours are related to his cognitive impairment. Long term treatment is required. But to be successful in the community, accommodations need to be made by those in his environment to effect positive change. [ 46 ] M.O. has had counselling while in custody for the last 2 years. That has had little success. M.O. does not think he needs counselling or programming. He continues to exhibit impulsive and violent and threatening behaviour toward peers and staff. This suggests his rehabilitation has not progressed much.

Parameters on Sentence [ 47 ] For the offences for which M.O. is being sentenced as a young person under the Y.C.J.A . (the assault, the sexual assault and the careless use of firearm): • The gateway to custody is open pursuant to s. 39 Y.C.J.A .

All are violent offences. • A variety of sentencing options is available pursuant to s. 42 Y.C.J.A . • Given M.O.’s record, and the circumstances of the three offences, a custodial sentence for each of the three offences for which he is being sentenced as a young person, in the view of the Court, is required. • The maximum period of custody and supervision for each of the offences is two years. • In this case, since more than one youth sentence will be imposed with respect to different offences, the continuous combined total duration of those youth sentences shall not exceed three years ( s. 42(15) Y.C.J.A .). • Any term of probation imposed as an additional sanction to a custody and supervision sentence must be included in the two year total for each offence ( s. 42(14) Y.C.J.A .) [ 48 ] For the offences for which M.O. is being sentenced as an adult: • The maximum sentence for the aggravated assault is 14 years imprisonment ( s. 268(2) of the Criminal Code ). • The maximum sentence for possession of a firearm while prohibited is 10 years when, as in this case, the Crown proceeded by indictment. ( s. 117.01(3) (

a) of the Criminal Code ). • There is no mandatory minimum sentence required for either of these offences. Positions on Sentence [ 49 ] There is not a joint recommendation as to sentence. [ 50 ] The Crown recommends that the Court sentence M.O. as follows: (

i) length of sentences • On the aggravated assault, imprisonment for five years; • On the possess firearm while prohibited, imprisonment for three years; • On the assault, imprisonment for six months; • On the sexual assault, imprisonment for eighteen months; • On the careless use of firearm, imprisonment for one year. (ii) consecutive vs. concurrent • The Crown says all of the sentences should be consecutive to each other except that the youth sentence for careless use of firearm

should be concurrent to the adult sentence for possession of a firearm while prohibited. (iii) consideration of the principle of totality • The Crown recommends that the eight years it suggests on the offences for which M.O. is being sentenced as an adult be reduced to six years, by reducing each of the aggravated assault and possession of a firearm while prohibited offences by one year, to take into account the principle of totality. • The Crown recommends that the two years it suggests on the offences for which M.O. is being sentenced as a young person be reduced by six months (to be taken from the sexual assault sentence) for a total youth sentence of eighteen months. (iv) total sentence • Accordingly, the Crown’s position is that the total global sentence for M.O. should be seven and a half years (or ninety months) of imprisonment. (

v) treatment and/or credit for time spent in custody pre-sentence • The Crown says that M.O. should receive credit for his time in pre- sentence custody at a rate of 1:1. [ 51 ] Defence counsel recommends that the Court sentence M.O. as follows: (

i) length of sentences • On the aggravated assault, imprisonment for twenty eight months; • On the possession of firearm while prohibited, imprisonment for two years; • On the assault, imprisonment for one to three months; • On the sexual assault, imprisonment for four to six months; and • On the careless use of firearm, a distinct sentence was not articulated, but defence counsel’s overall position for both firearms offences together was two to three years. (ii) consecutive vs. concurrent • Defence counsel did not specifically address this issue. (iii) consideration as to the principle of totality • There was no recommendation made to reduce the total sentence on the basis of the principle of totality. (iv) total length of sentence recommended by defence counsel

• Defence counsel recommends sentences that total fifty seven to sixty one months, so just under or just over five years. (

v) treatment and/or credit for time spent in custody pre- sentence • Defence counsel says that M.O. should receive credit for all of his pre- sentence time in custody at the rate of 2:1. (vi) probation • Defence counsel says that if the Court imposes sentences in accordance with his submissions, the Court may place M.O. on a period of supervised probation, with conditions.

Purpose and Principles of Sentencing The adult sentences [ 52 ] Appropriate sentences for M.O. must be determined for the aggravated assault and possession of firearm in violation of a prohibition, in accordance with the purpose and principles of sentencing set out in s. 718 of the Criminal Code . [ 53 ] The fundamental purpose of the sentencing of adult offenders is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

Section 718 of the Criminal Code requires courts to structure sentences for adult offenders that attain that purpose by addressing objectives which include denunciation, specific and general deterrence, rehabilitation, separation of offenders from society to protect the public where necessary, reparation to victims or the community and promotion of responsibility of offenders and acknowledgement of harm. [ 54 ] A sentence must be proportionate to the gravity of the offences and the degree of responsibility of the offender ( s. 718.1 Criminal Code ).

The offences for which M.O. is being sentenced as an adult are at the most grave end of the spectrum. Other than murder, it is hard to imagine an offence more grave than the aggravated assault in this case.

M.O., although there were others involved, and although he did not hit the victim with the bat, bears responsibility for the totality of the circumstances of the offences. [ 55 ] Rehabilitation is always an important objective of sentencing, especially in cases where, as in this case, offenders are young and, if given supports and resources, may turn their lives around. [ 56 ] But, given the nature of these offences, the sentencing objectives of denunciation, deterrence and separation of the offender from society to protect the public, must be paramount amongst the sentencing principles considered. [ 57 ] The principle of parity in sentencing is a factor to be considered in this case ( s. 718.2 (

b) Criminal Code ). In this case an adult co-accused has already been sentenced. [ 58 ] The principle of totality must also be considered ( s. 718.2 (

c) Criminal Code ) , such that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [ 59 ] Mitigating and aggravating circumstances of the offences and the offender must be taken into account ( s. 718.2 (

a) Criminal Code ). [ 60 ] The offences perpetrated by M.O. and his co-offenders are of the type that are feared most by law abiding members of society. Citizens are entitled to assume that, as long as they follow laws applicable to them, they will be able to safely move throughout the community, and that they will be safe in their own homes. Indeed, the entitlement to make that assumption is one of the many reasons that people outside Canada choose to move to our country. We do not generally have to worry about war on our own territory, nor violence perpetrated by our government nor its agents.

People come to Canada to live a peaceful existence, expecting that, as long as they follow the laws, they will be able to do so. That is the expectation that the young victim of the aggravated assault, and members of his family had. Instead, they had their dream of a peaceful existence shattered by unprovoked, horrendous gang motivated violence. As a result of gang violence coming into their home, the victims of the weapons offences have had to leave their own homes and are in essence, in hiding indefinitely. Both the aggravated assault and weapon offences were gang motivated.

The community at large needs to see that offences such as these will be severely sanctioned. The community of offenders who are inclined to behaviour such as M.O.’s in committing these offences, needs to see that if they commit like offences, they will be going to jail for a long time. Hopefully that threat of long incarceration, set by example in a case like this, will deter them from committing similar offences. The sentence needs to be significant enough that M.O. himself will be deterred from committing a similar offence in the future, for fear of returning to jail for a long time.

A strong message of denunciation needs to be sent by M.O.’s sentence, to demonstrate that actions like his will not be tolerated in our community. The youth sentences

[ 61 ] The principles of sentencing according to which M.O. must be sentenced for the assault, sexual assault and careless use of firearm offences are different than the ones set out above. Deterrence and denunciation are not sentencing objectives under the Y.C.J.A.

The purpose of sentencing a young person is to hold him accountable for his offences through the imposition of just sanctions that have meaningful consequences for him and that promote his rehabilitation and reintegration into society, thereby contributing to the long term protection of the public ( s. 38 (1) Y.C.J.A .) [ 62 ] The principles of parity and proportionality are considerations in youth sentencings. ( s. 38(2) Y.C.J.A. ). [ 63 ] In determining youth sentences a court is to take into account the following: (

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; and (

e) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. ( s. 38(3) Y.C.J.A .) [ 64 ] While custodial sentences are available for the three offences for which M.O. is being sentenced as a young person, the Court must still consider all alternatives to custody that are reasonable in the circumstances in accordance with the purpose and principles set out in s. 38 of the Y.C.J.A . [ 65 ] In this case, given M.O.’s prior record, no alternatives to custody were suggested.

Indeed, in the circumstances, only a custodial sentence can provide meaningful consequences to M.O. What sentences are appropriate? Mitigating and Aggravating Factors [ 66 ] In order to determine the appropriate sentences for M.O. for these offences, the Court must take into account the circumstances of the offences and of the offender, as well as mitigating and aggravating factors of the offences and of the offender, and apply to all of those factors the applicable purpose and principles of sentencing as set out above. [ 67 ] There are a number of aggravating factors in this case.

These are: As to the firearms offences: (

a) The firearm was loaded; (

b) M.O. and his co-accused did not just possess the firearm; it was actually discharged; (

c) M.O. knew the house into which the shot was fired had people in it; (

d) The firearm was taken and used for the purpose of intimidating someone relative to the collection of a drug debt owed to M.O.’s gang; (

e) The offences were the result of a premeditated plan; (

f) The offences were gang related. Apparently one of the residents of that home had recently left the B Side gang; (

g) M.O. was prohibited by the Court at the time of the offences from having firearms; (

h) These offences inflicted significant and lasting emotional and psychological harm on the victims. An adult female victim provided victim impact information through the Crown. She and her teenaged son have had to change their lives through no fault of their own. They are now in the witness protection program and have been relocated. She describes the incident in her statement as the most “horrifying time of my life”. She says she is too afraid to work for fear M.O. or one of his associates will find her. As to the aggravated assault: (

a) M.O. was serving the community supervision part of a youth sentence, which expired just one day before he committed the aggravated assault; (

b) The offence was gang motivated;

(

c) The victim was chosen at random and based purely on the color of his skin; (

d) The attack was in no way provoked by the victim; (

e) The offence was planned or premeditated; M.O. and his co accused were looking for someone to attack; (

f) The attack was a group attack, up to 6 to 1. The victim did not stand a chance of successfully defending himself; (

g) Once the victim was on the ground, the beating continued; it was relentless and repeated. After he was on the ground and not moving he was hit in the head with a weapon, a bat, by one of the co-accused; (

h) M.O. did not assist the victim in any way, nor call for help. The victim was left alone; (

i) The extent and effect of the physical and mental injuries inflicted on the victim are extreme. The medical procedures the victim had to endure, just to survive, were invasive and extensive. He had to have several surgeries to his skull and brain, just to save his life. The injuries are permanent, and the victim’s quality of life has been taken from him. He has paralysis and traumatic brain injury. He cannot communicate verbally and cannot even distinguish amongst his family members. The victim’s life remains at risk due to the possibility of infection.

He requires 24 hour a day care, and there is no prognosis for any significant change. The victim had plans of college and dreams to marry his girlfriend. Those plans and dreams were taken away from him by M.O. and his cohorts; (

j) The impact of the victim’s injuries on his family members has been, and will remain, significant. His parents had to leave their jobs. His uncle had to quit university. They have used their life savings to care for the victim. They have forever lost the person they knew. As to the sexual assault and assault: (

a) These offences occurred while in a secure and setting; (

b) M.O. committed these offences while pending on the very serious aggravated assault and weapons offences; and (

c) the victims were young persons. As to all the offences generally: (

a) M.O. was on probation at the time of the offences, and had just completed the community supervision portion of a prior sentence the day before he committed the aggravated assault; (

b) M.O. has a significant prior youth record. It is related, contains convictions of violent offences and weapons offences. It also shows demonstrates an escalation to violent crimes and crimes involving firearms; and (

c) The aggravated assault and the firearm offences occurred within a one month time span of each other. [ 68 ] The Crown submitted M.O.’s conduct in custody should be considered as an aggravating factor. I have considered that conduct as a significant factor in determining the extent of the credit that M.O. will receive for his pre-sentence custody.

It would not be appropriate, in my view, to both lengthen the sentence M.O. receives, and then to impact the credit M.O. receives for his pre-sentence custody, based on his conduct in custody. [ 69 ] I also note that the Crown asked the Court to consider as an aggravating factor with respect to the aggravated assault, the text messages that were sent on the victim’s phone, to the victim’s girlfriend, after the aggravated assault. M.O. has denied that he sent these messages. The Crown did not call evidence on sentencing to prove that he did.

Accordingly, I do not take those text messages into account in determining an appropriate sentence for M.O. for the aggravated assault. [ 70 ] There are several mitigating factors, which are: (

a) M.O. did plead guilty to all offences except the sexual assault, thereby accepting responsibility for those offences, and ensuring that convictions were secured; (

b) He is a young man now, just barely an adult; (

c) M.O. has had a difficult and tragic upbringing with no advantages, adult supports or guidance. The very adults he was entitled to expect would support him and protect him did not do so; (

d) M.O. was unarmed during the aggravated assault; (

e) M.O. was not the person who used the bat in the aggravated assault, and there is no suggestion that he directly encouraged the use of a weapon; (

f) There is no evidence that M.O. was the one who fired the shotgun into the residence in the careless use of firearm offence; (

g) There is some information that M.O. is remorseful about, in particular, the aggravated assault and the extent of the injuries caused to the victim, and that the victim will not have a normal life. His reason for remorse seems to be on the basis that the victim was not in a gang after all.

Length of Sentences The adult matters: Aggravated assault [71] Although each case is fact specific, there are a number of cases that have at least somewhat similar facts to the aggravatedassault perpetrated by M.O. These are cases that involved unprovoked, assaultive behaviour of a vicious nature, with or without aweapon, on random and unsuspecting victims, and that have resulted in significant or lasting injury to the victim. The courts in thosecases have imposed sentences that range from 4 to 7 years in prison. [72] R. v.

Hogg (2004 MBCA 114), is the starting point for aggravated assault sentencings in Manitoba. In overturning aconditional sentence order of two years less a day for a brutal aggravated assault by a young man with no criminal record and excellentprospects of rehabilitation, the Court of Appeal said that a four year sentence of imprisonment was proper. Twaddle J.A., said atparagraph 9: “A crime of this magnitude must be denounced and denounced loudly.

If the public is to have confidence in the administration of justice,it must be apparent that a crime such as this draws a penitentiary term. ” [73] In Hogg, the offender was intoxicated. He attacked someone he did not know but with whom he thought he had hadpreviously had an argument. He hit the victim in the head with a metal club. When the victim was on the ground, he kicked himrepeatedly. He left the victim unconscious and not breathing. The victim suffered extreme and permanent injuries, including some braindamage. The offender was 21 years old.

He had good supports in the community, was very remorseful and had done significantprogramming while waiting for sentencing. He was assessed as having a nearly zero likelihood of committing such offences in thefuture, and as not being a danger to the community. [74] The facts of M.O.’s case are worse than in Hogg. M.O.’s actions were gang motivated, and part of a group attack. The injuriessustained by M.O.’s victim are even worse than in Hogg.

M.O.’s personal circumstances, in terms of record, lack of supports, andcontinued risk to the community, are aggravating features not present in the Hogg case. [75] In R. v. Braithwaite (2010 MBPC 53), this Court imposed a four year sentence on an offender for an aggravated assault. Theassault was unprovoked, and was part of a group attack. While not gang motivated, the offender committed the offence with fellow gangmembers. The offender’s role was punching and kicking the victim repeatedly and dragging him back for the assault to continue whenthe victim tried to escape.

A co-accused stabbed the victim with a knife and caused injuries which required the victim to have twosurgeries. The victim’s life was significantly impacted, though I note the injuries sustained were not brain injuries and the victim wasable to work and care for himself. The offender was 19 years old when the offences were committed and he had a limited youth record. He had limited cognitive abilities, substance abuse issues, and was assessed as a moderate to high risk to reoffend unless he madesignificant change.

The offender however was committed to his criminally oriented lifestyle. [76] The facts of M.O.’s case are similar in many ways to Braithwaite. The injuries sustained by M.O.’s victim are worse than thevictim in the Braithwaite case. [77] In R. v. Affleck (A.) et al, (2008 MBCA 76), two accused were convicted of aggravated assault. Essentially it was a road rangecase in which two offenders hit the victim with a metal club in the head and then repeatedly kicked and punched him. The victimsustained severe facial injuries including broken cheek bones, shattered nose, broken jaw and a skull fracture.

He was hospitalized for 11days and was off work for a while. He had three surgeries and was left with scars and short term memory loss. One of the offenders wassentenced to 3 years and one was sentenced to 4 years on the aggravated assault. [78] Again, the injuries sustained by M.O.’s victim were worse. Also there was no gang motivation or involvement in Affleck. [79] The Crown also provided some cases from outside Manitoba. [80] In R. v.

Jahanbakhsh, 2007 BCSC 141 (B.C.S.C.), the offender was convicted after trial on aggravated assault and assault withweapon on one victim, and assault cause bodily harm and assault with a weapon on another victim. The offender was 19 years old. Heattacked two 17 year old victims with a pole. They had had some verbal altercation earlier but at the time of the assaults, the victimswere no threat to the offender. The offender hit each of the victims with a pole in the head. The most seriously injured victim suffered anacute subdural hematoma, and a skull fracture, requiring surgery. He had a traumatic brain injury.

He suffered impairment of short termmemory, speech and judgment. He was rendered partially blind. The injuries were severe and permanent. The offender was young andhad no record. The court imposed a global sentence of three and a half years but did note it was at the low end of the range, andspecifically noted it was the sentence which experienced Crown counsel sought. [81] In a case referred to in that case, R. v. Johnson (1998) (BC CA), 131 C.C.C. (3d) 274 (B.C.C.A.) a 28 yearold was convicted of aggravated assault and assault with a weapon.

He pulled a victim from his vehicle and beat him in the head andbody with a baseball bat. The victim suffered serious and permanent injuries including a brain injury which resulted in some permanentdisability. A five year sentence was upheld. Prowse, J.A, stated: at para. 10, in referring to the fact counsel referred the court toauthorities of that court that provided a range between 16 months and 6 years:

“…Sentences at the lower end of the range tend to be imposed in “fight” situations in which the altercation escalates and results ininjuries to the victim. Sentences at the higher end of the range tend to be imposed in situations where the victims are attacked with aweapon, without provocation and without any opportunity to defend themselves.” [82] In R. v. Cador, 2009 ABPC 218, the female accused got the victim, her former boyfriend, to a location where he was beaten byher then boyfriend, and co-offender. The female accused did not participate in the beating but watched.

The victim suffered serious headinjuries requiring neurosurgery. He suffered moderate to severe brain trauma, needed constructive plastic surgery and was unable towalk for three weeks. It was a planned and deliberate assault. The male accused was 23 with a limited record. The female accused was23 with no record. The sentence imposed on each of the accused was seven years imprisonment. [83] Although the offenders in all of the foregoing mentioned cases were young, none of them were under 18 when they committedthe offences.

M.O.’s very young age when he committed the offences, even though he is being sentenced as an adult, must be kept inmind. [84] I note the comment made by the Ontario Court of Appeal in the case of The Queen v. Borde (ON CA),[2003] O.J.

No. 354, that, although a penitentiary sentence may be appropriate for a young adult for a serious offence in order to addressdenunciation and deterrence, a first penitentiary sentence for a youthful offender should be as short as possible to achieve thoseobjectives. [85] The only case brought to the Court’s attention that was an unprovoked aggravated assault on an unsuspecting victim, withsimilar aggravating factors to the ones in the case of M.O., and in which the offender was a young person being sentenced as an adult, isR. v. M.K. (J.

Meyers, June 27, 2002), a decision of this Court. [86] In M.K., the offender and one other youth carried out an aggravated assault on an innocent victim, for no apparent reason. They were in a yard committing some vandalism. A 69 year old man confronted them, holding a child’s baseball bat, in order to try tostop the vandalism taking place in his yard. The two young men attacked him, kicking and punching him until he was on the ground,unconscious. They continued to kick him in the body and head, and then beat him with the baseball bat and fence pickets, beyondrecognition.

M.K. was in custody at the Manitoba Youth Centre and was on a pass during open custody when this occurred. He was 17at the time. The victim sustained numerous injuries, including cranial swelling, lacerations around both eyes, a broken nose, jawfractures, bruises and contusions to his body and legs. He required extensive reconstructive surgery. He had ongoing daily pain to thishead and body, and will never recover fully. He suffered from depression, lost a significant part of his hearing, and lost his sense ofsmell.

He needed plastic surgery to his face and had to undergo ongoing therapy for vertebrae damage to his spine and kidneys. Theoffender had a significant record from the age of 14, including convictions for assault and uttering threats. [87] M.K.’s personal circumstances were similar to those of M.O. He had an explosive temper and was easily agitated. He hadbeen the victim of childhood abuse. He had substance abuse issues. He was involved in a number of serious incidents in custody, andwas assessed as a high risk to re-offend.

He did well academically in the structured custodial setting, and claimed to have removedhimself from his gang. M.K. was sentenced to five years in custody. [88] The M.K. case is very closely on all fours with the case of M.O. M.K. seems to lack the gang motivated factor, and the injuriesto the victim in M.K., while horrific, still are not as entirely debilitating as those suffered by M.O.’s victim. [89] Defence counsel provided the case of R. v. Besaw, 2004 MBCA 196. In Besaw, the Manitoba Court of Appeal dealt with asentence after trial for aggravated assault.

The victim and accused had been socializing with each other and with others before theincident. They were all somewhat intoxicated. Ultimately the accused and the victim got involved in an altercation. The victim wasflung against a wall of the hotel corridor several times during which his head likely struck the wall. The accused kicked the victim as helay unconscious on the floor. The victim was in a coma for several days. The victim sustained brain injury. The trial judge imposed afour year sentence, saying that he felt compelled to follow the Hogg case.

Like in Hogg, the accused had no record, was young, wasconsidered to be a good candidate for rehabilitation, and was remorseful. Also in both the victim sustained significant injuries. But theCourt of Appeal in Besaw said the case was, in fact, not so similar to Hogg, given that no weapon was used in Besaw, and the attack wasnot planned as it was in Hogg. Ultimately the Court of Appeal found the moral blameworthiness of the offender in Besaw was not as highas it was in Hogg, and reduced Mr.

Besaw’s sentence to sixteen months. [90] In the case of M.O., there was a plan to attack a particular type of victim made by gang members, and a weapon was used by aco-accused. The moral blameworthiness of M.O., in my view, is more akin to that of Mr. Hogg than of Mr. Besaw. [91] Several other cases filed by defence counsel were just not close enough to the facts of the case before the Court to be helpfulprecedents. [92] In all of R. v. Cascisa, 2001 MBCA, 168, R. v. Clemons, 2003 MBCA 51 and R. v.

Taylor 2008 MBPC 21, the Manitoba Courtof Appeal upheld sentences of two years less a day for manslaughter (in Cascisa and Clemons) and for aggravated assault, and by way ofa conditional sentence order in Taylor. But these were not unprovoked attacks. In all these cases, the victim had started fights with theoffenders.

In Clemons, Twaddle, J.A. at paragraph 28, noted that the sentencing judge found: “substantial” provocation by the victim was the “… aspect of the case which… entitled the sentencing judge to assess the degree of theaccused’s blameworthiness very much lower than would otherwise have been the case.” [93] In the case of M.O., unlike in these three cases, there was no provocation whatsoever by the victim.

[ 94 ] Defence counsel also referred the court to some cases of sentencings of young persons for aggravated assault offences. These are of little assistance, because the sentences were arrived at in accordance with the sentencing principles of the Y.C.J.A. , rather than in accordance with the sentencing principles of the Criminal Code , pursuant to which M.O.’s sentence must be determined.

Although some of those cases involve unprovoked, aggravated assaults with facts, including injuries to the victims, approaching the seriousness of the facts before this Court in M.O.’s case, the custodial sentences are necessarily shorter that what is appropriate for M.O., given that deterrence and denunciation were not principles used in determining those sentences. Parity [ 95 ]

Section 718.2 (

b) of the Criminal Code requires a sentencing judge to take into account the following principle: “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” [ 96 ] The issue of parity needs to be considered in this case. One of M.O.’s co-accused, who was an adult at the time the offence was committed, Mr. Justin Kirstein, has already pleaded guilty to aggravated assault and has been sentenced ( R. v. Kirstein , unreported, Man. Prov. Ct., June 29, 2010, Martin, P.J.). [ 97 ] Mr.

Kirstein was given a sentence equivalent to nearly 28 months in custody on the aggravated assault, specifically 13 months and 25 days of pre-sentence custody was noted at double credit, plus his one day court appearance. [ 98 ] Defence counsel argues that since an adult convicted of exactly the same offence (not just a similar offence) received a sentence equivalent to nearly 28 months in custody, M.O. should not receive a sentence that is higher than that. [ 99 ] The leading Manitoba cases on the issue of parity are R. v. Reader (M.), 2008 MBCA 42 and R. v. Sinclair , 2010 MBCA 105 . [ 100 ]

Section 718.2 (

b) of the Criminal Code does not mean that the Court must impose an identical penalty on M.O. as was imposed on Mr. Kirstein. It does require that the Court consider the parity principle with a view to imposing a similar sentence. As made clear in the R. v. Reader case, that means the Court has to look at what the actual basis was for the sentence imposed on Mr. Kirstein, and then needs to consider the similarities and differences in the circumstances of Mr. Kirstein and of M.O. to determine how the sentence imposed on Mr.

Kirstein may impact on M.O.’s sentence. [ 101 ] The similarities in the circumstances of Mr. Kirstein and M.O. that would suggest similar sentences may be appropriate are: • Their involvement in the incident was similar. Mr. Kirstein admitted to kicking the victim once. M.O.’s involvement was several kicks. • They both have prior criminal records. Mr. Kirstein’s record was mostly from youth court. It is not long but has violent offences and offences with weapons, including an assault with weapon as a youth (for which he received custody) and in 2009, as an adult, a possess weapon and firearm while prohibited.

M.O.’ s record is longer, is all as a youth, started out as mostly property and breach offences, and escalated to violent and weapons offences. • They both entered guilty pleas to the aggravated assault. [ 102 ] The differences between the circumstances of Mr. Kirstein and M.O. are as follows: • The sentence imposed on Mr. Kirstein was a joint recommendation that was accepted by the Court. Reader makes it clear that the fact a sentence results from a joint recommendation is an important factor in the consideration of parity.

In Kirstein , the sentencing judge was provided with significant reasons for the joint recommendation. Key was that Mr. Kirstein signed an agreement with the Manitoba Prosecution Service to cooperate in prosecutions against his five co-accused, including M.O., on the aggravated assault and as to the February 21, 2009 firearms charges against M.O. That agreement was marked as an exhibit in the sentencing of Mr. Kirstein and in the sentencing of M.O. In exchange, the Crown endorsed the joint recommendation and stayed the February 21, 2009 firearms charges against Mr. Kirstein. In particular, Mr.

Kirstein’s cooperation and his statement identified another co-accused, Mr. Moar, as the one who hit the victim in the head with the bat. Without Mr. Kirstein’s evidence, that evidence was not likely available. This information also enabled the Crown to upgrade the charge against Mr. Moar to attempt murder. M.O., it should be noted, declined to name any of the other participants in the aggravated assault, when asked by police. Crown counsel prosecuting Mr. Kirstein stated at page 11 of the sentencing submissions that Mr.

Kirstein’s cooperation was essential to prosecute the others for their full involvement in the aggravated assault, and that although the deal made with Mr. Kirstein was “…on some level a deal with the devil…it is a necessary devil….it is something that is necessary and it is in the best interests of justice…” • Without Mr. Kirstein’s cooperation, the case against him, the Crown advised, was not a strong one in terms of his involvement. On the other hand, the case against M.O. on the aggravated assault, especially with the evidence of Mr. Kirstein available, had significant strength.

In particular, witnesses identified M.O. as being at the scene and as participating in the assault. Further police obtained extensive wiretap evidence, which included M.O.’s discussions about the beating with a co-accused. M.O. himself gave a statement admitting participation in the beating. • Mr. Kirstein expressed significant remorse about his involvement in the aggravated assault, to a greater extent than did M.O. [ 103 ] In my view, despite some similarities as between Mr. Kirstein and M.O. in terms of their involvement in the aggravated assault,

the fact of Mr. Kirstein’s cooperation being provided and being essential in order to prosecute a total of five co-accused, plus himself, to the extent of their full involvement in the matter, is an exceptional circumstance and one that renders the circumstances of M.O. and Mr. Kirstein sufficiently different that similar sentences are just not appropriate. Mr. Kirstein’s cooperation was a huge mitigating factor underlying the joint recommendation. There is no such significant factor in M.O.’s case. M.O. made no effort or offer to cooperate with police nor to identify co-accused.

M.O. should not have the benefit of Mr. Kirstein’s cooperation, which, no doubt, will entail significant concerns for Mr. Kirstein’s personal safety going forward. It is worth noting that if Mr. Kirstein does not fulfil his obligation to cooperate with the prosecutions of the co-accused, the charges against him may be re-instituted, such that he remains in potential jeopardy. [ 104 ] In all the circumstances of this case, and of M.O., in my view an appropriate sentence for M.O. for his role in the aggravated assault is one equivalent to five years of imprisonment.

Possession of firearm contrary to weapons prohibition [ 105 ] In R. v. Douglas , 2007 MBCA 129 , an offender pleaded guilty to one count of possession of a weapon for a purpose dangerous to the public peace and one count of possession of a loaded firearm. He was a watchman at his former gang’s clubhouse and had a .22 calibre sawed off rifle. There was a confrontation with the rival gang, and shots were fired by a co-accused. The accused had a lengthy record. The Court of Appeal reduced an effective sentence of 48 months to one of 36 months, less double credit for pre sentence time in custody.

The reduction in the sentence was, in part because the accused did not fire the weapon and only had it in his possession. [ 106 ] In R. v. Smith , 2006 NSCA 95 ,an accused was charged with careless storage of a firearm, possession of a prohibited or restricted firearm and possession of a weapon obtained by commission of an offence. He was sentenced after trial to three years. He had a long prior criminal record but only one conviction for violence. He had no prior firearms charges. The sentence was upheld. [ 107 ] In each of these cases, the firearm was not fired by the offenders.

In the case of M.O. a firearm was fired into a residence where M.O. knew there were people. [ 108 ] The case of R. v. Hinnegan was an oral decision of Judge Devine of this Court delivered on November 24, 2000. The offender pleaded guilty to assault with a weapon, and possession of a restricted firearm without a registration certificate. Basically, he pointed a handgun in the victim’s face, threatened to shoot him and hit him three times with the barrel of the gun. He fired one round into a suite in the building into which the victim had fled. No one was hit. The offender had no record, and was 22 years old.

He turned himself into police. There were no gang undertones. The offender was not subject to any weapons prohibitions. The court imposed a global sentence of 20 months, and probation. There was no gang issue, the accused had no record, there was no weapons prohibition and the victim was not seriously hurt. [ 109 ] In all the circumstances, I am satisfied that an appropriate sentence for M.O. on the possession of firearm in violation of the weapons prohibition is 3 years of imprisonment.

The YCJA matters: The assault [ 110 ] Taking into account the mitigating and aggravating factors, I am of the view that an appropriate youth sentence for this offence is one equivalent to 3 months of custody. The sexual assault [ 111 ] Taking into account the mitigating and aggravating factors, I am of the view that an appropriate youth sentence for this offence is one equivalent to 6 months of custody. Careless use of firearm [ 112 ] Defence counsel provided a case of a young person sentenced for careless use of a firearm. In R. v.

D. (I.) , 2003 CarswellOnt 4837 , the Ontario Court of Justice imposed a sentence of 24 months probation and 200 hours of community service rather than custody. The offender had fired a pellet gun at his friend, hitting the friend in the eye, and causing him to lose his sight in that eye. The offender and the victim had been playing with the pellet gun and there was no intent to harm the victim. That case is entirely distinguishable from the case of M.O. There were none of the aggravating factors such as the gang involvement or intent to intimidate the victims as there are in M.O.’s case. In R. v.

D. (I.) what happened was essentially an accident arising from careless use. [ 113 ] The mitigating and aggravating factors are the same as for the possession of the weapon in violation of a prohibition. M.O. has four prior convictions for weapon related offences. The sentence for the last one was equivalent to seven months of custody. In my view, a longer custodial sentence is necessary to be a meaningful consequence for M.O. The sentence for this offence will be one equivalent to 12 months of custody.

Concurrent or consecutive sentences [ 114 ] In this case, the offences committed by M.O. on different dates are all separate and distinct, are not sufficiently interrelated to form part of one continuous criminal transaction and are not a “spree” of offences. Consecutive sentences are called for, except that the two firearms offences of February 21, 2009, being part of the same transaction, will be sentenced concurrently to each other. Totality

[115] The total length of the sentences is 8 years and 9 months, before consideration of the principle of totality. [116]

Section 718.2(

c) of the Criminal Code provides that where consecutive sentences are imposed, the combined sentence shouldnot be unduly long or harsh. [117] In R. v. Taylor, 2010 MBCA 103, the Court of Appeal confirmed that when a sentencing judge imposes consecutive sentencesfor multiple offences, the totality principle is to be applied by taking a “last look” at the total sentence to ensure it is not unduly long orharsh (para. 8). [118] MacInnes J.A., in R. v.

Wozney 2010 MBCA 115, stated at para. 59: “…the totality principle requires that a “last look” be taken to ensure that the total or cumulative sentence is a fit sentence in that it doesnot exceed the overall culpability of the offender.

Again, due regard is to be given to the “intentional risk-taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender’s conduct” (see M. (C.A.), at para 80)”. [119] A sentence will offend the totality principle if its effect is a “crushing sentence,” that is, a sentence not in keeping with theoffender’s record and future prospects (para. 60 R v.

Wozney) [120] In my view, having regard to M.O.’s record which was, until now, entirely a youth record, and M.O.’s future prospects, whichhave to include that he is now only 19 years old and has significant time to rehabilitate if he takes advantage of the resources he will haveavailable to him in custody, a sentence of 8 years and 9 months would, indeed be a crushing sentence. This is not to, in any way,downplay the seriousness of the harm caused by M.O., nor his intentional risk taking, but rather to balance those factors with his veryyoung age.

In my view, an overall sentence equivalent to 6 years and 9 months is appropriate.

That will be accomplished by reducingeach of the sentences on which M.O. is being sentenced as an adult by one year, such that the individual sentences will be equivalent tothe following: • Aggravated assault: 4 years • Possession of firearm: 2 years • Assault: 3 months • Sexual assault: 6 months • Careless use of firearm: 1 year (concurrent to the possession of firearm) Treatment of pre- sentence custody [121] M.O. has been in custody since March 3, 2009. [122] When M.O. was sentenced on September 29, 2009 for his March 3, 2009 offences, four months of his time in pre sentencecustody was noted.

He cannot now receive any credit for those four months on the current sentencing. That means he has time incustody available for consideration relative to the matters he is now being sentenced on since July 3, 2009, a total to today’s date, of23.75 months. [123] Section 719(3) of the Criminal Code provides that in determining sentence, the Court may take into account the time an offenderhas spent in custody pre-sentence. The case law makes it clear that there is judicial discretion as to what credit an offender shouldreceive for his pre-sentence custody. [124]

Section 74 of the Y.C.J.A. confirms that s. 719(3) of the Criminal Code applies to a young person in respect of whom an adultsentence is being imposed. [125] The offences for which M.O. is being sentenced predate the Truth in Sentencing Act that now limits the credit that may beattributed for an adult sentence to one day for each day of pre-sentence custody served or “if the circumstances justify it”, 1.5 days ofcredit for each day of pre-sentence custody served.

Accordingly, the credit to be given to M.O. for his pre-sentence custody is to beconsidered without the restriction imposed by the Truth in Sentencing Act, and in accordance with what the law on pre-sentence custodywas at the time M.O. came into custody. [126] The reasons for giving enhanced credit for pre-sentence custody are well entrenched.

These are: • Other than for life sentences, legislative provisions for parole eligibility and statutory release do not take into account time spent inpre-sentence custody; • There are few rehabilitative, educational or retraining programs available in detention centres; and • Conditions in detention facilities are often more crowded and more onerous than in correctional facilities. (R. v. Francis (2006), (ON CA), 207 C.C.C. (3d) 536 at para 14) [127] The SCC in R. v.

Wust 2000 SCC 18 , [2000] 1 SCR 455 provided that credit for pre- sentence custody should not bedenied without good reason, but that sentencing judges have broad discretion as to how much credit to give. [128] Adults not subject to the Truth in Sentencing Act limits are often credited with 2:1 for time spent in pre-sentence custody. Youngpersons being sentenced under the Y.C.J.A. are generally given credit for time in custody at a rate of 1.5:1. The rationale for the enhancedcredit for pre-sentence time for young persons is that conditions in a youth facility are generally less onerous than those in an adult

facility. [ 129 ] In R. v Roulette 2005 MBCA 149 , the Manitoba Court of Appeal cautioned trial courts against automatically giving double or triple credit for pre-sentence without taking into account the specifics of a particular case. [ 130 ] Defence counsel says that M.O. should receive credit for his pre-sentence custody at the rate of 2:1. [ 131 ] The Crown says M.O. should not receive any more than 1:1 credit for his pre-sentence time in custody given the fact he has been continuously involved in violent and aggressive incidents. [ 132 ] In the R. v.

M.K . case, supra , Judge Meyers of this Court did give a young person being sentenced as an adult credit for his pre- sentence custody at the rate of 2:1. It does not seem that the Crown opposed that credit, though argued, unsuccessfully, that it should apply only after M.K. pleaded guilty. In that case, the young person’s poor behaviour in custody was specifically considered by Judge Meyers as an aggravating factor in determining the appropriate length of the sentence for an aggravated assault by M.K. to be five years. [ 133 ] In R. v.

A.O . 2007 ONCA 144 , the Ontario Court of Appeal said, that sentencing judges have discretion when it comes to credit for pre-sentence custody, and upheld a ratio of 1.2 to 1. That case involved the sentencing of two young persons being sentenced as adults. The 1.2 to 1 reflected that the young persons had been involved in disciplinary incidents at the correctional facility. [ 134 ] In R. v. R.L., 2009 MBQB 276 , McKelvey, J., in sentencing a young person as an adult, rejected the notion that an offender should be given a two for one credit just because he was being sentenced as an adult.

McKelvey, J. referred to Justice Simonsen’s comments in R. v. Soldat (3 April 2008), Winnipeg YO 07-01-27630 as follows: “…The two for one approach is a guideline which has been developed by the courts, and is not an absolute rule, even for adult offenders. The purpose of the guideline is to take into account the conditions in the institution and the ineligibility of pre-sentence custody for parole. In the case before me, it is acknowledged that the conditions in youth facilities are generally more favourable than in adult institutions. As for parole eligibility, given Mr.

Soldat’s lengthy record and history of poor behaviour while in custody, I expect that his prospect of early release is unlikely. In the circumstances, I am of the view that a credit of one and a half to one is appropriate for the time Mr. Soldat has served in youth facilities.” [ 135 ] It makes sense that disruptive and difficult behaviour by an offender during pre-sentence custody will negatively affect the credit he receives for that time. Good behaviour after sentencing is a significant consideration in securing early release.

If giving more than 1:1 credit is to compensate for the fact that pre- sentence custody is not considered time in custody to qualify for early release, then the time spent by an offender in custody pre-sentence, to qualify for more than 1:1 credit, should also be required to be characterized by good behaviour.

Just as when an offender’s behaviour post sentencing is poor so that he does not qualify for early release, so too, if it is poor during the pre-sentence time, he should not qualify for much, or any, more than 1:1 credit. [ 136 ] McKelvey, J. said in R.L ., that because the offender’s behaviour was, in part, very disruptive and difficult while in custody, she did not feel a two for one approach was appropriate.

When he served his time in more onerous institutions, such as Lakewood, that was due to his own non-compliance and did not warrant a two for one approach. [ 137 ] McKelvey, J. also found that R.L. should not receive the more favourable 1.5 to 1 credit for his time in custody pre-sentence because he had available to him and took advantage of programming available and made significant strides academically. [ 138 ] Ultimately, because his conduct was too extreme to allow the “usual” credit of 1.5 to 1, McKelvey, J. gave R.L. credit for his pre-sentence time in custody at the rate of 1.2 to 1. [ 139 ] I am of a similar view.

M.O.’s behaviour in custody disentitles him to the “usual” double or even 1.5 to 1 credit. Further he spent most of his pre-sentence custody time in youth institutions where he had access to programming, academics and counselling. In all the circumstances, M.O. will be credited with his pre- sentence time in custody at the rate of 1.2 to 1 toward both his youth and adult sentences. Decision [ 140 ] M.O.’s overall sentence is equivalent to 6 years and 9 months, or 81 months. [ 141 ] M.O. has spent time in custody pre-sentence, and not already used toward other sentences, (as of June 24, 2011) of 23.75 months.

At a rate of 1.2: 1, M.O. will be credited with the equivalent of 28.5 months. With that time noted, the sentences going forward will total 52.5 months.

That is the amount of time M.O. has left to serve in custody. [ 142 ] The breakdown of the global sentence is as follows: • On the assault, 2.5 months of pre-sentence custody will be noted, at the rate of 1.2: 1, equivalent to 3 months, plus today’s one day court appearance. • On the sexual assault, 5 months of pre-sentence custody will be noted, at the rate of 1.2:1, equivalent to 6 months, plus today’s one day court appearance. • On the possession of firearm in contravention of a prohibition, 16.25 months of pre-sentence custody will be noted, at the rate of 1.2:1, equivalent to 19.5 months, and the sentence from today going forward is one of 4.5 months, or to be specific, 4 months and 15 days of imprisonment. • On the aggravated assault, the sentence going forward is 48 months of imprisonment. [ 143 ] All of these sentences are consecutive to one another.

In addition on the careless use of firearm the sentence is to note 10

months of pre-sentence custody at the rate of 1.2:1, which is equivalent to 12 months, plus today’s one day court appearance. That sentence is concurrent to the sentence for the possession of firearm in violation of a weapons prohibition. [ 144 ] The aggravated assault and the sexual assault offences are both set out as primary designated offences in

section 487.04 of the Criminal Code . As such, the Court orders, pursuant to

section 487.05 of the Criminal Code , that within 30 days of today M.O. provide a sample of his bodily substances for submission to the national DNA data bank. [ 145 ] The careless use of firearm offence requires that a weapons prohibition be imposed pursuant to

section 51 of the Y.C.J.A. That order is imposed for a period of 2 years from the time M.O. is released from custody. The breach of weapons prohibition and the aggravated assault offences require that weapons prohibitions be made pursuant to

section 109 of the Criminal Code . M.O. has had two prior prohibitions imposed, both as a young person. M.O. is hereby prohibited from possessing any firearm, cross-bow, restricted weapon or ammunition and explosive substance for life. [ 146 ] Costs and surcharge on the matters for which M.O. is being sentenced as an adult are waived as M.O. will be in custody for some time further and has no means to pay. Original signed by: CARLSON, CATHERINE, P.J.