R. v. L.C., 2020 MBPC 38

CITATION: R. v. L.C., 2020 MBPC 38 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Lisa Carson ) ) for the Crown - and – ) ) ) L.C. ) ) Carley Mahoney for the Young Person ) ) ) Reasons for Decision ) Delivered: August 26, 2020 Pollack, S.P.J.

Publication of the name of the young person, or any other information related to the young person, if it would identify her as a young person dealt with under this the Youth Criminal Justice Act , is prohibited. [ 1 ] On June 4, 2018 I sentenced this young person to secure custody for forty (40) months to be followed by conditional supervision for twenty three and one half (23½) months upon her guilty plea to second degree murder. Following an annual review on July 24, 2019 I confirmed that sentence to continue without change. This proceeding is the second annual review pursuant to

Section 94 of The Youth Criminal Justice Act (“ YCJA ”). [ 2 ] Notwithstanding that this is a statutory annual review, I am satisfied that there should be a review because, on her twentieth birthday in November, 2019, the offender was moved by correctional authorities from the Manitoba Youth Center (“MYC”) to the Women’s Correctional Centre (“WCC”), an adult custodial centre. A circumstantial change like that should prompt a review. Evidence: [ 3 ] The evidence consists of

a) The “Progress Report-Annual Review Report” (“Report”) required by YCJA s. 94(9), prepared by probation officer Travis Gurr;

b) a document entitled “Elder Review” by Shannon Buck, a Traditional Knowledge Keeper at WCC;

c) a document entitled “Healing Plan” signed by Shannon Buck and the young person;

d) a handwritten document entitled “My Life Story” by the young person. At my request, counsel provided Ms. Buck’s job description as well as information provided to a WCC inmate who wishes to be involved with what is called the WCC Indigenous Cultural Initiative. I will explain shortly why I required this additional evidence. [ 4 ] Included with the Report was a victim impact statement from the murder victim’s mother. Not unlike many responses to a request for an impact statement, it includes opinions about these proceedings and its dispositions.

The youth’s counsel quite properly drew this to my attention and I have already stated that I cannot give weight to those opinions. Other parts of the impact statement are consistent with what I heard and remember vividly from the sentence hearing. [ 5 ] YCJA , s. 94(9) makes the Report the minimum requirement for evidence in this hearing: “The youth justice court shall, before reviewing under this

section a youth sentence imposed in respect of a young person, require the provincial director to cause to be prepared, and to submit to the youth justice court, a progress report on the performance of the young person since the youth sentence took effect.”

The Report writer did not interview Ms. Buck. The only reference to the WCC initiative is this last piece under “Custody Interventions”: “L.C. continues to be involved in cultural programming at WCC, however, she recently lost the privilege for a period of time after being transferred to another unit due to negative behavior. She has since earned her way back into general population and can resume participation.” It would have been preferable for the writer, on behalf of the Provincial Director, to have consulted with Ms. Buck in preparing the Report.

The Elder Review is dated April 12, 2020; the Healing Plan was completed on March 30, 2020 although not signed by the young person until June 8, 2020; June 8, 2020 was one day before the date on the Report and three days after a telephone conversation by the Report writer with another probation officer who, I presume, will be in charge of this case. The Report writer’s thoughts about this material, provided to me by the young person, may have been helpful.

Result sought: [ 6 ] The young person seeks an end to her incarceration so that she can return to her First Nation community and take steps to enroll in University of Manitoba.

She would have strong family support from three sources: her mother and grandmother, who have been in court for all of the proceedings and with whom she has had visits, as well as her preschool son whose guardian is presently the youth’s mother. [ 7 ] Several grounds for review are suggested in YCJA , s. 94(6), the last of which tells judges that grounds on which to consider these applications are not finite: “A youth sentence imposed in respect of a young person may be reviewed under subsection (5) (

a) on the ground that the young person has made sufficient progress to justify a change in the youth sentence; (

b) on the ground that the circumstances that led to the youth sentence have changed materially; (

c) on the ground that new services or programs are available that were not available at the time of the youth sentence; (

d) on the ground that the opportunities for rehabilitation are now greater in the community; or (

e) on any other ground that the youth justice court considers appropriate.” It is with reference to clauses (a), (

b) and (

d) that this application is made; the result sought is an order pursuant to YCJA, s. 94(19)(

b) that the offender be released upon her undertaking to comply with supervision conditions. Since the last review: [ 8 ] This youth has taken steps to remove negative influences which were a concern in the last review: she has ended troubling relationships with her son’s father and with a friend who had a tangential participation in the matter for which she is serving her youth sentence.

And she has applied for, and has been involved in, an ongoing program offering support to Indigenous offenders. [ 9 ] Although her conduct at both MYC and WCC has not been without fault, she has completed high school and is eligible for university entrance. She was described as a role model for others at MYC and is trusted with a job in the laundry at WCC. [ 10 ] Prior to her transfer to WCC, the young person forged a MYC staff signature on a letter, thus enabling it to be released in the mail. She also was found to be tattooing herself. Tattooing has also been the subject of discipline at WCC.

Since her transfer to WCC she was involved, with others, in a refusal to comply with lock up. She was also disciplined once for cheeking her medication, although I accept that it was not for the purpose of trafficking the pill. [ 11 ] Both the Report and the Elder Review identified the significant issues facing this young person. Ms. Buck wrote that: “L.C. struggles with self-acceptance and thinks often of how to fit in with her peers. She’s very sensitive to criticism and internalizes what others say to her or about her.

She has a tendency towards people pleasing and will give up her own values to gain acceptance from others. This is to be expected given her age and life experiences.” ( emphasis added ) The probation officer noted that “she is easily led by other ( sic ) and requires to be around positive role models to help guide her” and that “issues of being easily misled by others is a struggle for ( her )”. [ 12 ] Concerning the youth’s reflections upon her crime, Ms.

Buck reported that: “We have also touched on her offence and how this issue ( i.e. people pleasing ) may have contributed to the actions she took on that night. L.C. expresses remorse for her offence and empathises with the victim’s family.” In that regard the Report states:

“Regarding her current offence, ( offender ) shared she thinks about it all of the time. When asked in what regard, she shared what she has taken away is a positive; she has learned a lot about herself and matured from a seventeen-year-old youth to the person she is today. When asked to better qualify this, she shared she was a seventeen-year-old with no self-confidence and now she sees she is capable of graduating.

When asked specifically about her feelings toward the offence, she shared she felt guilt, sadness for the family and shame.” [ 13 ] The Healing Plan identifies her struggle with “identity and self-acceptance” and includes appropriate cultural and spiritual activities to address this: continued group attendance, continuing with Elders upon release and “spiritual guidance as requested”. It identifies jail tattooing with a history a self-harm (which is well documented) and recommends appropriate education.

The Plan does not specify how these resources would be provided, maintained and supervised. [ 14 ] There are also facts pleaded without formal evidence but I do take cognizance of them. Jail is different from MYC. The youth is allowed out of her cell for only three hours a day. Because of the pandemic she cannot have family visits and I note that her son will soon turn four. Her grandmother, who has been a solid support, has no phone.

That is the reality of life in an adult women’s prison for a twenty-year-old service a sentence for murder. [ 15 ] Unlike MYC, WCC does not offer pre-integration leaves to enable a probation officer to assess the likelihood of success upon release; it offers release on parole only, subject to adult standards. The reality of life on the conditional supervision sought here is that it is hardly distinguishable from full parole.

Proof burden: [ 16 ] It is now well established that the young person seeking supervision instead of incarceration bears the onus of proof and it is not the burden of proof beyond a reasonable doubt. In R. vs. H (D) 2008 ONCJ 78 , Otter, J endorsed “the principle that Applicant bears the evidentiary and persuasive burden of proof” (See also R. vs. Z (AA), 2013 MBCA 33 ).

Certainly this is not a fresh opportunity for counsel to argue an appeal against sentence; it is an opportunity to show that there are grounds consistent with the philosophy of the YCJA to vary the portion of the sentence to be served at WCC. [ 17 ] Counsel submits that sufficient progress has been made by this offender justifying not only a review but relief from imprisonment. The expectation of an applicant relying on that first ground is articulated by Atwood, PJ in R. vs.

DP , 2018 NSPC 31 : “Cases that have dealt with sub-s. 94 (16) YCJA reviews have required, typically, evidence of ‘significant changes…made during the course of the young person serving his sentence’ or ‘exceptional evidence of change’, the more serious the offence, the greater need for exceptional evidence: R. vs. Z(AA) ( supra, and other authorities ).

While exceptional evidence might be required to be presented to the court, the principles of sentencing as set out in s. 38 of the YCJA lay out the criteria to which that exceptional evidence ought to apply”… Conclusions: [ 18 ] Against the background that all of the foregoing provides, I have read and re-read the youth’s Life Story. She wrote this about the night of the murder: “A couple drinks turned into a full weekend of binge drinking. Waking up a Monday, and finding out you were involved in a murder was so shocking. I couldn’t remember much of that weekend but watching a video a friend showed me was brutal.

I sat back and denied it all because I’m not a violent person.” That is not the first time that I read words from her pen that put distance between her and the second-degree murder which she admitted. Last year she wrote that: “The act I have taken

part in was not supposed to end the way that it did.” I point this out not to say that she is deliberately trying to chip away at that admission of guilt. I consider this to be evidence that she still does not appreciate the significance of her consequences; she is serving the maximum YCJA sentence for taking a life. It is to be hoped that she continues working on this. [ 19 ] I turn next to the Elder Review and Healing Plan. Prosecution counsel submits that the evidence from Ms.

Buck cannot be given the same weight as the evidence of a probation officer because, unlike a probation officer, an Indigenous care giver serves the inmate’s needs but is not part of a supervisory corrections system. The position’s description is that of “Aboriginal Care Giver-Elder (Chaplin)” and the only supervision appears to be under the superintendent.

The Elder’s independence is confirmed by the statement that she or he “works under the limited administrative supervision of the Superintendent and the professional guidance of the Directive Coordinator of Aboriginal Elders and Care Givers”. [ 20 ] The objectives of the group program are quite impressive: first support, then education and, of course, healing. Notwithstanding the obvious interruption caused by the pandemic, the report by Ms. Buck and the Healing Plan indicates that the authorities are taking the needs of Indigenous offenders seriously and with priority.

It is interesting that the Elder is not only to be a resource person for Indigenous inmates; the Elder also provides support for the institution including working with staff to increase their understanding of cultural issues and even advising superiors on staff performance. [ 21 ] Without elaboration, the job description says that the Elder is expected to “participate in case management”.

Under its last heading - “Supervision Received – What kind of supervision, instruction or direction does the incumbent receive?” - there are two points: “Works independently with a Team Ministry concept, the Aboriginal Care Giver is provided with general guidance and supervision by the off site Divisional Coordinator of Aboriginal Care Givers and Elders and is assisted in day to day provision of services by the Superintendent.

The incumbent is largely self-directed and needs to possess a strong sense of purpose and organization and willingness to address and ( sic ) needs of the offender population with a view of promoting positive change through Aboriginal teachings, education and ceremonies.” What is missing in the evidence here is how Ms. Buck was involved in the youth’s case management.

I know that she was suspended from the program for poor behaviour and then reinstated but I do not know anything about how those decisions were made or whether the behaviour complained of was related to the program. [ 22 ] Lest this be taken as criticism of the WCC initiative, I wish to make my opinion clear; the contents of the documents that I sought indicate that there should be some good alternatives for conditional supervision for this offender that will undoubtedly be rooted in Aboriginal core values.

But they need to be developed for an application like this to demonstrate how, for example, they will work with a young mother with a four-year-old trying to keep up with a university curriculum. [ 23 ] YCJA, s. 19(1) enables the provincial director (among others) to convene a conference “for the purpose of making a decision required to be made” under the Act. YCJA, s. 19(2) states that such a conference may be for “the review of sentences, and integration plans”. Earlier I described the Report as the minimum evidentiary standard for a sentence review.

In my opinion the minimum evidentiary standard for making the decision sought here - where the offender is undergoing the personal struggles described by both a probation officer and an Elder support, and where the antecedent crime is a homicide that shocked the community - is the presentation of the Report after, or with, a case conference with relevant personnel from sentence supervision, community resources including Elders and family. That would be an excellent application of the conference provisions in the Act .

And I would add, parenthetically, that this will not be the young person’s last sentence review. [ 24 ] For the reasons I have stated, the evidence does not disclose progress substantial enough to enable me to justify the variation sought. And the plan for supervision for this offender is insufficient to promote “her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public” ( YCJA , s. 38(1)). Although there have been changes in her life, they are not changes, in my opinion, that are material to what led to second degree murder.

The sentence is therefore confirmed. “Original signed by” Pollack, S.P.J.