2014 MBPC 40, 2014 MBPC 40

Cite: 2014 MBPC 40 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Krista Berkis, ) for the Crown - and – ) ) J. C., ) ) Allison Kravetsky, for the Accused Accused ) ) Judgment delivered: August 18, 2014 ) Restriction on Publication : This judgment is subject to s. 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 . MARY KATE HARVIE, P.J.

Introduction [ 1 ] Crown Counsel makes application pursuant to s.72 of the Youth Criminal Justice Act (“ YCJA ”) for the accused to be subject to an adult sentence for an incident which occurred on August 19, 2013. Defence counsel opposes the application. [ 2 ] In preparation for the hearing, a number of reports were filed including a “Supplementary” Pre-sentence Report dated May 20, 2014; a Pre-sentence report prepared for earlier charges and dated November 26, 2013; a psychological assessment completed by Dr.

Alan Slusky of the Manitoba Adolescent Treatment Centre dated April 14, 2014; a Report of the Manitoba FASD Centre dated February 12, 2014; and a Victim Impact Statement dated June 2, 2014. Crown counsel also filed a transcript of the statement made by the accused to the police upon his arrest on August 19, 2013. A copy of the accused’s criminal record was provided. [ 3 ] Both Crown and defence counsel filed a number of authorities respecting the test to be applied in a YCJA s. 72 application. No viva voce evidence was called by either the Crown or defence.

The Crown has not applied for a Serious Violent Offence (“SVO”) designation. Brief

Summary of the Offence [ 4 ] On August 19, 2013, shortly after midnight, the accused drove with two co-accused in a stolen Chevrolet Astro van to an area in the vicinity of a 7-Eleven Store located at 554 Keenleyside Street. The accused and one of the co-accused left the van and moved on foot to the store where, prior to entering, they disguised their identities with neck warmers, toques and jacket hoods. The accused was in possession of a sawed off “Maverick” 12 gauge shotgun which was loaded with two live rounds. The co-accused was in possession of a black plastic garbage bag.

This accused, who was under the influence of various illegal and prescription drugs, entered the store with the co-accused and confronted a clerk behind the front counter, pointing the loaded shotgun and stating “this is a robbery”. He also pointed the gun at a second clerk, as well as a shopper in the store. The co-accused placed the black garbage bag on the counter and the clerk was directed to fill the bag with cigarettes and money.

The two co-accused fled the store and ran towards the stolen vehicle, where the third accused had remained. [ 5 ] As a result of an emergency 911 call placed to the Winnipeg Police Service reporting the robbery, patrolling officers attended to the vicinity, observed the two co-accused fleeing the 7-Eleven store, and converged upon them as they were entering the stolen vehicle. All three were arrested and taken into custody.

The stolen vehicle, the sawed off 12 gauge shotgun and the cigarettes and currency were located within the stolen vehicle. [ 6 ] The accused was interviewed on video, provided his rights, declined counsel, and admitted his involvement in the offence. The robbery was captured on video and the video was shown as part of the proceedings. The Statutory Authority and Applicable Case Law

[7] The test for determining whether a young person should be subject to an adult sentence is set out in YCJA Section 72(1) whichstates: 72.

(1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that o (

a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and o (

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

section 38 wouldnot be of sufficient length to hold the young person accountable for his or her offending behaviour. [8] Crown counsel bears the onus in satisfying the Court that an adult sentence ought to be imposed. The test is one neither ofproof beyond reasonable doubt nor proof on the balance of probabilities, but rather is one which requires the Court to carefully considerall relevant factors (see R. v. A.O., 2007 ONT C.A. 144 at paragraphs 34 through 38; and R. v. D.D.T., 2010 ABCA 365 , 2010ABCA. 365 at paragraph 7).

The Ontario Court of Appeal described the decision to impose an adult sentence as a “serious one” andurged “a youth justice court bear in mind the very serious consequences of an adult sentence for the young person, so as to only order anadult sentence when necessary to fulfil the objectives of the “YCJA” (at paragraph 38). [9] Critical in an application of this nature is a determination by the Court as to whether an adult sentence is necessary as a“meaningful consequence” to hold a youth accountable for his or her behaviour.

In considering this question, the Ontario Court ofAppeal noted that “meaningful consequences” is not synonymous with rehabilitation and re-integration. In R. v. A.O. 2007 ONCA 144, 2007 ON C.A. 144 (Ontario Court of Appeal) the Court noted (at paragraph 47) In our view, for a sentence to hold a young person accountable in the sense of being meaningful it must reflect, as does a retributivesentence, “the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harmcaused by the offender, and the normative character of the offender’s conduct”.

We see no other rational way for measuringaccountability. [10] In applying these criteria, the Court must consider the general principles articulated by the YCJA and to consider how thoseprinciples relate to the sentencing of an offender. 3.

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree ofresponsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address thecircumstances underlying their offending behaviour; (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminishedmoral blameworthiness or culpability and must emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced levelof maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right toprivacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perceptionof time; (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve theparents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young personswith special requirements; And: 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence throughthe imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation andreintegration into society, thereby contributing to the long-term protection of the public.

Sentencing principles

(2) 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, with particular attention to the circumstances of aboriginal young persons; (

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 acknowledgement of the harm done to victims and the community; and (

f) subject to paragraph ( c ), the sentence may have the following objectives: (

i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. Factors to be considered

(3) 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 the purpose and principles set out in this section. [ 11 ] The relative length of sentence available under the YCJA was the subject of some disagreement between the parties. Crown counsel takes the position that pursuant to s. 42(2)(

n) the maximum sentence which could be imposed on the accused under the youth regime is limited to a maximum of three years. That being the case, a sentence of three years, broken down to two years custody (either secure or open), followed by one year of community supervision would disallow the Court to impose a period of probation. Defence counsel argues that the Court can consider both the maximum custody along with a period of probation. I agree with the

interpretation taken by Crown counsel with respect to the sentencing provisions. I note, however, that both counsel agree that the flexibility afforded under the youth sentencing regime means that the Court can decline to give the accused any credit for the time spent in custody. Given that as of the date of the sentencing the accused had spent approximately 10 months in custody, this represents a significant period of time. [ 12 ] Crown counsel seeks an adult sentence of five years.

Essentially the position taken by Crown counsel is the length of a sentence allowed under the YCJA is simply insufficient to hold this young person accountable, given the serious nature of this offence. She acknowledges that this offence would be governed by the “mandatory minimum” provisions, meaning an adult sentence of anything less than five years is not available. For her part, defence counsel urges the Court to impose the maximum period of custody under the YCJA. She submits that this period, along with the time in custody, is sufficient even taking into account the facts of the offence.

Consideration of the Factors Set Out in

Section 72 Circumstances and Seriousness of the Offence: [ 13 ] Both counsel acknowledge that the offences for which the accused has entered pleas are extremely serious. Specifically, as a result of the August 19 th incident, the accused entered pleas to the offences of robbery, possession of a weapon dangerous to the public peace and wearing a disguise with intent.

Two further charges of failing to comply both with dates of August 19, 2013 also appeared on the docket but were not the subject of this application. [ 14 ] Overall, the circumstances of this offence are troubling and include a number of aggravating factors. The late night robbery of a convenience store is always extremely concerning and even more so with this robbery, which involved the use of a sawed off and loaded

shotgun. The accused admitted to having purchased the weapon only days before the incident, and admitted knowing that it was loaded when he carried it into the store. In his comments to the police, he admitted he had the gun “in case something happened” and was prepared to use the gun “for self defence” if one of the clerks had tried to grab him. [ 15 ] The robbery was motivated by greed.

The accused readily admitted that the robbery was his idea and that it was his intention to keep most of the proceeds of the offence. [ 16 ] While the offence appears to have been somewhat spontaneous, the two who entered the store had the presence of mind to disguise their identity with hats, hoodies and neck warmers. Further the robbery was committed at a time when the accused claimed to be under the influence of a significant amount of illegal and prescription drugs. [ 17 ] The three offenders attended to the store in a van which had earlier been stolen by the accused.

When asked by the police, the accused initially denied stealing the van, later admitting his responsibility, indicating as well that it was he who drove the van to the store. [ 18 ] A Victim Impact Statement was obtained from one of the two clerks. He describes himself as having been “in shock” and unable to sleep immediately after the incident. He was referred to a therapist for assistance and has received help for Post traumatic stress. He has received medication to assist him in sleeping, but only takes it as needed.

Having said that, the victim states that he is not angry and expressed a high degree of empathy for the accused. The victim “believes that the youth made a terrible mistake and his life should not be ruined as a result.” He indicated that he did not want the accused to receive a lengthy custodial sentence but rather “rehabilitation and counselling”. The Age and Maturity of the Young Person: [ 19 ] The accused has a date of birth of August 23, 1996. The offence was committed just prior to his 16 th birthday.

He is now 17 years old and will turn 18 in August of this year. [ 20 ] One of the challenges faced by the accused relates to the fact that he has been assessed with an IQ of approximately 74 (borderline range). The November, 2013 Pre-sentence report references a functional assessment completed by Dr. Gary Fisher in September, 2011, which found his overall profile to include “the presence of severe impairments”. The 2013 Pre-sentence Report also indicated a diagnosis of attention deficit hyperactivity disorder (ADHD).

This finding is consistent with the recent assessment of the FASD Center, which states that while the accused does not meet the criteria of an FASD assessment, he does display “attention regulation” problems. [ 21 ] Given his deficits, Probation Services anticipates that he may qualify for the Provincial Special Needs Program, which would provide him with ongoing support after his 18 th birthday. Character and Background of the Young Person: [ 22 ] All reports confirm that the accused had a difficult and chaotic upbringing.

His family became involved with Child and Family Services (“CFS”) while the accused was still relatively young due to problems related to physical abuse of the accused at the hands of his father, as well as his mother’s significant inability to care for the accused and his siblings. His mother struggled with issues of addictions and parenting.

He was apprehended in November, 2010, when his mother moved in with her boyfriend, essentially leaving the accused and his brothers to “fend for themselves.” Due to the eventual breakdown of the foster placement, the accused was returned to his mother’s care in June 2011. [ 23 ] In January of 2012 he went to live with an uncle in Alberta, where he remained until April, 2013. He then returned to Winnipeg and to the care of his mother, despite significant concerns being identified.

Due to alcohol and drug use in the home, the accused was re- apprehended in April, 2013 and made a permanent ward of CFS, following which he was the subject of numerous placements. He has been at the Manitoba Youth Center since his arrest on these charges [ 24 ] Schooling has presented a challenge for the accused. Prior to being detained in custody, the accused had attended school on a sporadic basis, almost completing his grade nine while residing in Alberta. However, upon his return to Winnipeg he did not attend school.

While detained at the Youth Centre, he has continued with his education and plans to do so and graduate from high school. [ 25 ] The accused has acknowledged and has come to accept that he will remain in custody for some time, and indicates that he is taking it “day by day trying to do good.” The PSR indicates that he has “adopted a new way of approaching his situation and has decided to be involved in as much programming as possible.” He has completed a drug program, a Thinking Awareness Group (TAG), and has commenced Anger Management Counselling.

He has also completed the Coming to Terms program (twice), the Social Skills Training, and a relapse prevention booklet. [ 26 ] The Pre-sentence Report indicates that the accused has been doing well within the Manitoba Youth Centre. He has maintained a “level four” within the internal trust system, being the highest level attainable. He is employed daily at the cafeteria and appears to enjoy his work. The Report describes the accused as “well behaved, polite and respectful to staff and peers.

He completes required tasks, follows direction by staff persons and participates in activities and programming.” [ 27 ] The Pre-sentence Report also identifies a number of challenges presented by the accused. The report indicates that “An obstacle for ‘J.C.’ seems to be his peers. He is easily influenced and will not discuss with his peers and/or staff persons when an issue arises.” These comments are consistent with those contained in an earlier Pre-sentence Report. The specific difficulties related to his difficulty managing his own emotional issues.

He has repeatedly engaged in “self-harming behaviour”, can isolate himself and has difficulty speaking to staff when he is “overwhelmed”. The six recent incidents identified in the Pre-sentence Report “five of those involved either self-harming behaviour or suicide attempts”. Previous Record of the Young Person:

[ 28 ] The accused has a previous criminal record. While the original record only indicated two sentencing dates, being September 30, 2011 and November 29, 2013 it became apparent that the offences dealt with on those had arisen from different incidents.

At the request of the Court a breakdown of the accused previous criminal activities was provided and is reproduced below: Offence Date : Charge : Conviction Date : Sentence : June 30/11 1) Possess Weapon Dangerous (Buck Knife) 2) FTC UTJ x2 September 30/11 2 yr supervised probation (conc) August 16/11 Possess Firearm Knowing possession unauthorized (sawed-off shotgun) September 30/11 2 yr supervised probation (conc) October 3/11 Robbery (pizza delivery man—co-accused had knife) September 30/11 2 yr supervised probation (conc) April 24/13 1) Possess weapon contrary to s.117.01 (bear mace) 2) FTC sentence November 29/13 30 days TIC + 1 day court appearance + 15 months supervised probation (conc) May 20/13 1) Carry concealed weapon (bear mace) 2) Possess weapon contrary to s.117.01 (bear mace) 3) FTC UTJ November 29/13 30 days TIC + 1 day court appearance + 15 months supervised probation (conc) May 26/13 1) FTC UTJ 2) FTC sentence November 29/13 15 months supervised probation (conc) July 5-7/13 1) FTC sentence x2 2) FTC UTJ November 29/13 15 months supervised probation (conc) [ 29 ] While the accused has a limited number of entries on his record, many are directly related to the type of activity before the Court in this case, including robbery and weapons offences. [ 30 ] Also of note is the fact that the accused has not previously been the subject of lengthy custodial dispositions.

Indeed, the longest sentence he has received was one of one day plus 30 days of “time in custody” although it is recognized that he may well have spent longer than that in a youth facility [ 31 ] It is troubling that the accused was subject to both a Bail Order and a Probation Order at the time that these offences were committed. Due to his being “on the run” the accused had not engaged with Probation Services and therefore there is limited information available as to his response to Correctional Services while in the community.

Gladue Factors: [ 32 ] The 2013 Pre-sentence Report provided an outline of the Gladue factors for this accused, who identifies as being Metis. [ 33 ] The accused’s mother’s family is from Duck Bay and his father’s was from Pine Creek, the two communities being only minutes apart. The accused’s mother indicates that there were significant issues of domestic violence in her family. She confirmed that her parents and an uncle had attended a residential school but that they were reticent to discuss their experiences, only doing so when under the influence of alcohol.

The accused’s mother left the community and now only returns for family funerals. [ 34 ] Her position respecting the accused’s cultural background reflects some contradictions. On the one hand, she feels the accused would have had a different upbringing had they resided on the reserve, allowing for exposure to a more traditional lifestyle. However, the Pre-sentence Report goes on to state that “despite the positive aspects of being raised on a reserve, ‘his mother’ accused Duck Bay and Pine Creek as lacking in every way.

She stated there is no opportunity at all for any young person unless these want to hunt rabbits and trap beaver.” She expressed concerns about a lack of pro-social activity and the high rate of teen pregnancy. [ 35 ] For his part, the accused was not raised culturally and has no intention of returning to either Pine Creek or Duck Bay. Upon his release, his status will provide him the opportunity to seek assistance from the Manitoba Metis Federation. “The Organization offers numerous educational programs, employment and training programs and assists with addictions.” The Pre-sentence Report indicates that

“Red River Community College employs advisors specifically for Aboriginal students to assist them in any way possible”. This may benefit the accused given his interest in the culinary arts and the training programs offered by the Red River Community College. The Pre-sentence Report further indicates that awards, bursaries and scholarships are available to Aboriginal students who meet the appropriate criteria. Application of the Authorities and Conclusion [ 36 ] The authorities provided by both counsel represent a helpful overview of the principles as applied to the facts presented in each case.

As with all cases, the particular circumstances of the offence and the offender must be considered in light of those principles. [ 37 ] As noted earlier, the central thrust of Crown counsel’s submission is that the maximum sentence allowable under the YCJA , b eing three years broken down to two years of custody and one year of community supervision is simply insufficient to hold the offender accountable, given the seriousness of the offence and the circumstances of the offender.

She submits that an adult sentence of five years is appropriate. [ 38 ] There is no contest that the circumstances of the offence are serious and highly aggravating. That alone is not sufficient basis to impose an adult sentence. There are a number of factors which lead me to conclude that the Crown has not met the burden of establishing that an adult sentence is warranted. I am mindful of the fact that while the accused was 16 years old at the time of the offence, he was functioning with a significantly reduced intellectual maturity level.

He has had an extremely challenging upbringing and the lack of supports in the community prior to this offence contributed to his chaotic upbringing. Since his admission to the Manitoba Youth Center, he has stabilized considerably. While he struggles with numerous personal and emotional challenges, his participation in the educational programming, various counselling and his ongoing institutional employment speak to the potential for rehabilitation for this youth. [ 39 ] As noted earlier, rehabilitation is not synonymous with “meaningful consequences”, nor is it the sole determining factor.

However, I do note that Crown counsel chose not to call viva voce evidence to suggest that the accused behavior, attitude, character, and maturity level is such that a sentence imposed under the youth regime would be of insufficient length to hold the young person accountable for his behaviour. The evidence does not suggest, as was the situation in R. v. D. (L.) , (August 31, 2006) (Man Prov.

Court) where the evidence clearly suggested that the youth, who presented with a conduct disorder, minimal remorse, significant anger and addictions issues, and the length required to address these issues, that only a lengthy adult sentence would be an appropriate “meaningful consequence” for a youth who was 17 years old at the time he committed a serious robbery which left the victim without sight in one eye. [ 40 ] I am also mindful of this accused criminal’s record, which, while related, has only resulted in the imposition of a relatively short custodial disposition.

That must be considered when balancing all factors. [ 41 ] As noted earlier, sentencing under the youth regime allows the Court some flexibility with respect to the assessment and application of time in pre-sentence custody. While an adult sentence does not mandate credit for pre-sentence custody, the circumstances of this case, given the offender’s institutional behavior, would warrant the granting of credit at the rate of 1.5 to 1. Given that the accused has spent approximately 10 months in custody, this represents a credit of 15 months.

If the crown’s request for a five year sentence was granted, the realistic result would be a sentence on a “go forward” basis of 45 months. This must be considered when assessing that the maximum youth sentence is one of 36 months.

The gap between the two sentences proposed is lessened considerable if the Court chooses not to grant credit to the youth for any time spent in custody. [ 42 ] While I acknowledge that a maximum youth sentence of three years actually represents a period of custody (two years) and community supervision (one year), a youth who is subject to an adult sentence would also be eligible for the early release pursuant to an application for parole.

Under either system, the offender will be subject to supervision in the community and may be brought back into custody if he fails to comply with the terms of the supervision. [ 43 ] In conclusion, I am declining to grant the Crown’s application for an adult sentence. I am imposing a sentence of three years. In doing so, I am declining to give the accused any credit for the time he has spent in pre-trial custody. Recognizing that credit is often granted in youth matters at a rate of 1.5 to 1, this represents a period of approximately 15 months.

I reiterate that this approach effectively makes the total youth sentence a period of over four years and one which is shorter than but within the range of the adult sentence being sought by the Crown. Pursuant to the mandatory wording in YCJA s. 42(4): You are ordered to serve one year of secure custody followed by one year of open custody in custody, to be followed by one year to be served under supervision in the community subject to conditions.

If you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of the second period in custody as well. You should also be aware that, under other provisions of the Youth Criminal Justice Act , a court could require you to serve the second period in custody as well.

The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence [ 44 ] The accused will be the subject of a mandatory two year weapons prohibition. [ 45 ] The accused will be required to provide a sample suitable for DNA analysis within the next 30 days. “Original signed by”

MARY KATE HARVIE, P.J.