Her Majesty the Queen - v. -, 2013 SKPC 8

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 008 Date: January 7, 2013 Information #s: 30902291, 32712533, 44305169, 37292332, 46423890, 46423891, 36654942 Location: Saskatoon _________________________________________________________________________________ Between: Her Majesty the Queen - and - R.H. Appearing: D. Stahl For the Crown T.

Talbot For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act. ______________________________________________________________________________________ SENTENCING DECISION S. P. Whelan, J ______________________________________________________________________________________ I.

INTRODUCTION [ 1 ] R.H. came before the Court for sentencing under the Youth Criminal Justice Act ( YCJA ) for the following offences: 1) Information #30902291 – May 11, 2012 – mischief

2) Information #32712533 – July 15, 2012 – break and enter dwelling house and commit abduction 3) Information #44305169 – August 1, 2012 – break and enter dwelling house 4) Information #37292332: i. Between August 1 and 31, 2012 – breach of undertaking – curfew ii. Between August 27 and 29, 2012 – break and enter dwelling house and commit theft iii.

August 27, 2012 – theft 5) Information #46423890 – December 3, 2012 – robbery 6) Information #46423891 – December 3, 2012 i. breach of undertaking – curfew ii. with intent to commit and indictable offence wear face mask 7) Information #36654942 – December 17, 2012 – possession of cannabis marihuana [ 2 ] The Crown sought a lengthy custodial sentence while the Defense sought probation. At issue was whether the two offences of break and enter and commit abduction and robbery were violent offences within the meaning of s. 39(1)(

a) of the YCJA or whether the former offence called for a custodial disposition under s. 39(1)(

d) of the YCJA . The YCJA amendments affecting the definition of “violent offence” and the principles of sentencing came into effect after the break and enter and abduction. The issues are further delineated below. [ 3 ] R.H. turned age […] in [...] 2012. He has no prior record. The pre-sentence report and psychological reports provided contained very concerning background information about him. [ 4 ] R.H. has spent at least 38 days in pre-sentence custody. This is the equivalent of 76 days or two and a half months.

Having taken this into account, a further global sentence of eight months of open custody and four months community supervision followed by four months probation was found to be appropriate. II. ISSUES

a) What is the onus on the Crown to establish whether offences meet the gateway for a custodial sentence?

b) What weight may be given to the risk assessments addressed in the pre-sentence report and psychological assessment?

c) Does the break and enter dwelling house and commit abduction meet the gateway for a custodial sentence within the meaning of s. 39(1)(

a) of the YCJA as a violent offence?

d) Does the robbery meet the gateway for a custodial sentence within the meaning of s. 39(1)(

a) of the YCJA?

e) Does the break, enter and commit abduction meet the gateway for custody within the meaning of s. 39(1)(

d) of the YCJA as an exceptional case?

f) Is custody an appropriate sentence? III. THE OFFENCES

1) Information #30902291 – May 11, 2012 – mischief [ 5 ] R.H. was seen on top of a rear bumper of a vehicle in the school parking lot. He was also seen in the area with a sledge hammer and was observed hiding it. Scratches were then found on the bumper. R.H. accepted responsibility for the scratches and agreed that he had been in possession of a sledge hammer, but it was not used in the offence. R.H. advised the authors of the psychological statement that he intended to use the sledge hammer to scare a girl.

The Crown emphasized the stated intention with respect to the sledgehammer which is a worrisome but not an element of this offence. 2) Information #32712533 – July 15, 2012 – break and enter dwelling house and commit abduction [ 6 ] R.H. entered the home of an aunt and removed her 20 month old daughter. He gained entrance to the home by climbing a ladder and removing the screen to a window of the baby’s bedroom.

R.H. was apparently motivated by a desire to scare or extract revenge upon the baby’s mother who had refused to allow him into their home, after an incident in which her six year old child had become burned. [ 7 ] The mother, R.H.’s aunt, first became aware of the abduction when the child was returned by R.H.’s mother to the infant’s grandmother, who lived in the same home as the mother. The child was being administered medication prescribed earlier that day for an ear ache. At about 8 p.m. the mother put her child to bed in her upstairs bedroom.

She checked on her twice before falling asleep herself on a downstairs couch. When the baby was returned she was wearing different clothing and she was cold and dirty. She also had a scratch on her stomach. The mother did not provide a victim impact statement but did advise that she was afraid of R.H. and what he might have done to her daughter. She does not trust him and does not want him near her family. [ 8 ] R.H. was 12 years of age at the time of this offence. He discussed his thinking with the authors of the psychological assessment and this account was not disputed.

He was angry with his aunt because she would not let him go to her home where his sister was staying. He said that initially he planned to commit a property offence in order to frighten his aunt. He noticed the ladder against the wall of her home. He climbed the ladder with a view to entering through a second story window. He entered the infant’s room and was looking for something to take when the infant awoke and began crying. He panicked and to avoid discovery decided to take his cousin from the house. He descended the ladder with the crying infant.

He took her to his room, again having climbed through a bedroom window. She continued to cry so he decided to leave his room with the infant and then he set her down on the ground and ran off. He returned after running a couple of blocks. In the meantime, his mother, having heard the crying, found the baby who was wet (it had been raining outside) and she took her into her home and changed her.

She returned the baby to the mother’s residence and almost immediately drove R.H. to his father’s residence in Saskatoon. 3) Information #44305169 – August 1, 2012 – break and enter dwelling house [ 9 ] This was a break in to a neighbour’s house. R.H. entered between midnight and 6 a.m. and a number of items were taken. He gained entry through an unlocked front door. R.H. admitted to taking an XBox, 3 controllers, and five games as well as tobacco and cigarettes. The owner was home at the time but unaware of the break in.

R.H. apparently told a relative on Facebook that he had done this break in and this was reported to the police. 4) Information #37292332: i. Between August 1 and 31, 2012 – breach of undertaking – curfew [ 10 ] R.H. was subject to an undertaking at the time of the August 1st break in, which is the subject of Information # 44305169, above. He breached the curfew condition when he committed the offence. ii. Between August 27 and 29, 2012 – break and enter dwelling house and commit theft [ 11 ] This was the second break in to the neighbour’s house.

On the evening of August 27 th , when the family went to bed the back door was left unlocked. In the morning the homeowner noticed a number of keys were missing and the police were alerted. The keys were to the house, van and another residence. Money, a gift card for $200.00, a credit card and a garage door opener were also taken.

[ 12 ] The following morning the homeowner was alerted by a neighbour who saw a man shut the garage door and take her van. The owner located the van on the street with a note to the effect that she was to give him $500.00 so that he would leave her alone. The owner who keeps track of her mileage for work purposes noticed that an additional 105 km was on the meter. There was damage to the right passenger bumper. [ 13 ] R.H.’s role in this break in and theft in count 3 was discovered as a result of his communication with a relative on Facebook.

He attended to the police and in the course of giving a statement and apology to the homeowner for the August 1 st break in, he confessed to the break in to this residence. He acknowledged taking the gift card, credit card, keys and garage door opener. He took the van twice. He acknowledged leaving the note. A second apology letter was written. Both apologies were filed and marked as Exhibits P1 and P2. iii.

August 27, 2012 – theft [ 14 ] This pertains to the theft of the garage door opener, discussed above. 5) Information #46423890 – December 3, 2012 – robbery 6) Information #46423891 – December 3, 2012 i. breach of undertaking – curfew ii. with intent to commit an indictable offence wear face mask [ 15 ] R.H., together with two teenage girls committed the robbery. He wore a neck-warmer over his face. The complainant had been walking home from work in the early evening when she was confronted by the three.

The shorter female was described as being the most aggressive of the three; she made demands for her belongings. She said they demanded her “shit”, her cash, and her Iphone. Someone grabbed her headphones from her face. There was some pushing. R.H. tried to take her backpack. She resisted, pushing back. She yelled for help and ran away. Nothing was taken and she received no lasting injuries. The descriptions given by the complainant lead to R.H.’s arrest after a short foot pursuit a brief time later in the area. [ 16 ] R.H. was cooperative on his arrest.

He had been with the two females whom he described as friends when one of them started joking about robbing someone. He said that he covered his face with a neck warmer and glasses because he didn’t want to do it. He acknowledged asking for her cash and grappling for her backpack. [ 17 ] A victim impact statement was filed. As a result of the pulling on her backpack the complainant strained her back and took painkillers for four days.

She said that she struggled with insomnia for two weeks. 7) Information #36654942 – December 17, 2012 – possession of cannabis marihuana [ 18 ] Discovered in his possession upon his return to Kilburn’s remand unit, R.H. said that he came into possession of the drug in the court detention area when someone gave it to him to hold for them. It was enough marihuana for several joints. IV.

R.H.’S BACKGROUND [ 19 ] Much of the background information in the pre-sentence report and psychological assessment is worrisome and the Crown relied heavily upon observations and predictions about his behaviour with respect to these offences in light of the background information. R.H.’s counsel emphasized his youthfulness and to separate the prejudicial information in the reports from the facts of the offences.

[ 20 ] R.H. has no prior record. He is 13 years of age and is in his 8 th year of elementary school education. Until the July 15 th offence of break and enter and abduction and since his parents separation when he was 18 months old, his principal residence had been with his mother in Prince Albert. He had regular contact with his father. His mother drove him to his father’s residence immediately after the abduction incident in July and he remained in his father’s care until his arrest on December 3, 2012.

He has been on remand since then and was denied release after a bail hearing on December 10. [ 21 ] There was some rather sketchy information in the pre-sentence report about psychiatric and psychological services provided to R.H. prior to these offences while living in Prince Albert. No reports from this time period have been provided. He was apparently seen by Dr. Hussain, a psychiatrist in Prince Albert, diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD) and placed on medications.

The pre-sentence report indicates that R.H.’s mother felt that he may need another assessment and a referral for further services. There have been reports of his behaviour impacting on others as early as age six. There has been a pattern of sneaking out after dark from an early age. The break in offences were undertaken alone, after dark. [ 22 ] The pre-sentence report and psychological assessment indicate that R.H. is a relatively capable student and that the problems that he has encountered, particularly interruption of his schooling, have been due to his behaviour.

Several pages in the pre-sentence report are devoted to the nature of these conduct problems. Enrolled in City Park Collegiate in Saskatoon in the fall of 2012, he continued to exhibit difficult behaviours and the school suspended him after an incident of aggression with another youth. According to the psychological assessment, since the suspension and before his remand into custody, he was attending school at the Egadz day program. He may return to City Park if his behavior stabilizes.

There is no information in the pre-sentence report about his participation at Egadz but it predates the psychological assessment by a month. [ 23 ] At page 10 of the pre-sentence report, the author indicates that City Park Collegiate wishes to

schedule a meeting with R.H., his family, school staff, and Saskatoon City Police, following the sentencing to discuss his future at the school. They anticipate access to the pre-sentence report or psychological assessment with a view to incorporating recommendations from these reports. Release of these reports has not been addressed in Court. An order of this Court pursuant to ss. 34(7) and / or 40(8) of the YCJA would first be required. City Park has decided to conduct a violence risk assessment on R.H.

The school may assign an educational assistant to work one-on-one with R.H. to provide direct supervision of R.H. during the day. [ 24 ] Concerns have been expressed around: impulse control, aggression, sexually intrusive conduct, interaction with female authority figures, problems with judgement and problem solving, self-centred and reckless behaviour, an inability to empathize or understand the effect of his actions on others, association with negative peers, and an escalation of inappropriate behaviours. He has been quoted to say that he gets a “rush” from committing crimes.

The risk assessments contained in the psychological assessment indicate that he’s at high risk for future violence and general recidivism. V. DISCUSSION

a) What is the onus on the Crown to establish whether offences meet the gateway for a custodial sentence? [ 25 ] R.H.’s counsel has argued in this regard that the Crown:

i) must prove beyond a reasonable doubt that a custodial sentence is required, and ii) that the role of the individual must be examined in determining if it was a violent offence. [ 26 ] I considered onus in R. v. J.L.M., [2005] S.J.

No 362 , and after some discussion at paragraphs 40 to 43, concluded that disputed facts, which the Crown sought to rely upon must be proven beyond a reasonable doubt, but that the YCJA does not contemplate a further direction that the Crown establish beyond a reasonable doubt that a custodial sentence may be imposed: 42 It seems that, the facts having been proven, Parliament has provided the steps for decision making before a custodial sentence may be imposed.

Indeed the YCJA has imposed upon the sentencing court a rather thorough and intensive consideration of principles and factors before arriving at a sentencing decision. . . 43 Of particular import is the direction that having determined the severity of the offence and evaluated all possible sanctions within the limits of proportionality, including a non-custodial sentence; if it then determines that custody is permissible and should be considered, it must once again consider alternatives to custody before imposing sentence. . .

It is my view that the prohibitions in 39(1) and (2) are sufficient direction to a sentencing court without further imposition of arequirement that the court be satisfied beyond a reasonable doubt that a custodial sentence is required. What is more, given this verystrong direction, I must conclude that had Parliament intended that the onus be such, it would have stated so. [27] Counsel for R.H. has relied upon the reasoning found in R. v. D.B., 2008 SCC 25, in which the Supreme Court of Canadadiscussed the burdens imposed upon young persons with respect to presumptive offences.

Relying upon the discussion contained thereinfrom R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368, Defense counsel has argued that the Crown must establish beyond areasonable doubt that a custodial sentence is warranted. As I read R. v. Gardiner, supra, it addressed the onus of proof with respect tofactual findings alone, and provided, beginning at page 28: One of the hardest tasks confronting a trial judge is sentencing. The stakes are high for society and for the individual.

Sentencingis the critical stage of the criminal justice system, and it is manifest that the judge should not be denied an opportunity to obtain relevantinformation by the imposition of all the restrictive evidential rules common to a trial. Yet the obtaining and weighing of suchevidence should be fair. A substantial liberty interest of the offender is involved and the information obtained should be accurate andreliable.

It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to havethe formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern thesentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has hadwide latitude as to the sources and types of evidence upon which to base his sentence.

He must have the fullest possible informationconcerning the background of the accused if he is to fit the sentence to the offender rather than to the crime. . . . It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of theoffence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established bythe Crown. If undisputed, the procedure can be very informal.

If the facts are contested the issue should be resolved by ordinary legalprinciples governing criminal proceedings including resolving relevant doubt in favour of the offender. [28] Counsel for R.H. has further argued that in order to meet the gateway for a custodial sentence, the Crown must establish that hisbehavior alone was violent in nature, in other words that his role may be examined in isolation of that of those with whom the offencewas carried out. This issue was addressed in R. v. K.C., 2011 ONCA 257 , [2011] O.J.

No. 1478 (C.A.) in the context of aserious violent offence designation and the applicability of that designation to a party to an offence, but I believe the reasoning to beequally applicable to this question, beginning at paragraph 23: 23 Similarly, it appears to be generally accepted that the designation applies to parties and not just to principals. For example, in R.v. T.(V.J.) (2007), 2007 MBCA 45 , 218 C.C.C. (3d) 563 (Man.

C.A.), Steel J.A. said, at para. 26, "the designation maybe made against either a principal or a party." She went on to hold, "[i]t is necessary to consider the different degrees of complicity ofeach party and assess their respective roles in the offence." Bloomenfeld J. reached similar conclusions in R. v. M.E., 2008 ONCJ99. [29] With respect to a serious violent offence designation, the sentencing judge retains discretion. This was discussed in R. v. K.C.,supra, the Court relying on the reasoning in R. v.

M.E., supra, laid out a two stage analysis, beginning at paragraph 45: 45 The definition of an SVO set out in s. 2(1) of the YCJA establishes the threshold for designating an offence as an SVO and requiresa two-step analysis. First, it is necessary to identify the offence that the young person committed. In doing so, a court may apply theordinary rules governing party liability.

The second step requires a court to determine if the young person's offence caused bodily harm.I will discuss the meaning of "cause" in this context below. 46 Once a court is satisfied that the threshold established by the s. 2 definition for making an SVO designation has been met, s. 42(9)of the YCJA gives the court a discretion concerning whether to make an SVO designation.

The Court’s analysis of the second step, whether the offence caused bodily harm, does not simply focus on the role of the young person alone. I noted paragraphs 58, 59 and 67. The exercise of discretion is further discussed at paragraph 75. [ 30 ] The scheme concerning a serious violent offence designation pursuant to s. 42(9) is quite different from that of the “gateway to custody scheme” found in s. 39(1). Section 39(1) is the “gateway” and s. 39(2) provides the direction that a custodial sentence pursuant to s. 39(1)(

a) to (

c) shall not be imposed unless the judge has considered alternatives to custody: 39.

(1) A youth justice court shall not commit a young person to custody under

section 42 youth sentences) unless (

a) the young person has committed a violent offence; (

b) the young person has failed to comply with non-custodial sentences; (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985; or (39.1(

c) was amended October 23, 2012 to read: (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act,

chapter Y-1 of the Revised Statutes of Canada, 1985; or) (

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. 39.

(2) If any of paragraphs (1)(

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in

section 38. It has been noted that even should a court determine that a custodial sentence may be imposed pursuant to s. 39(1)(d), that it is required having regard to the principles in s. 38 to consider alternatives to custody. [ 31 ] In R. v. H.T.N.

(2006) BCCA 218, the British Columbia Court of Appeal held that a custodial sentence may be imposed upon a young person who has committed a violent offence as a party to an offence. An excerpt of that discussion is set out below: [13] The analysis of the context of the YCJA, however, is only part of the process of interpreting s. 39(1)(a). The words of the

section must also be interpreted "in their grammatical and ordinary sense". The ordinary and accepted legal meaning of the word "commit" includes aiding and abetting as well as being a principal to an [209 C.C.C. (3d) p. 323] offence. Section 39(1)(

a) does not qualify the word "commit" with "actually", which is how the appellant would have the Court interpret it. [14]

Section 140 of the YCJA provides: 140. Except to the extent that it is inconsistent with or excluded by this Act, the provisions of the Criminal Code apply, with any modifications that the circumstances require, in respect of offences alleged to have been committed by young persons. [15] A clearer expression of legislative intent would be necessary to find that the legal effect of s. 21 of the Criminal Code is "inconsistent with or excluded by" the YCJA, and does not apply in sentencing young persons for "violent offences". On the contrary, Parliament has created a "bright line" in sentencing young persons who commit violent offences as compared to those who do not. The words of s. 39(1)(

a) provide no justification to create a sub-set of those who commit violent offences as parties as opposed to principals.

[16] Nor does the context of the YCJA require that the application of section 39(1)(

a) be restricted to those offenders convicted as principals. In crafting the appropriate sentence for a young person, the sentencing judge must take into account the object and scheme of the YCJA and the intention of Parliament to limit custodial sentences, as reflected in the

preamble, statement of purposes in s. 3, and the principles of sentencing in s. 38 of the YCJA. . . [ 32 ] From the foregoing discussion, then I have found that the Crown must prove beyond a reasonable doubt those disputed facts upon which it relies with respect to a decision as to whether an offence is a violent offence. Beyond that, there is ample direction in the YCJA to the sentencing court regarding the considerations to be reached before imposing a custodial sentence. This is not a matter of further onus on the Crown.

While role is always important in sentencing proceedings, it is not required that the role of the individual be examined in determining whether the young person has committed a violent offence; rather he may be found to have committed a violent offence having regard to the actions of the group, as a party or otherwise. Having concluded that a young person has committed a violent offence, the court is still required to look at role before finding that a custodial sentence is appropriate.

b) What weight may be given to the risk assessments addressed in the pre-sentence report and psychological assessment? [ 33 ] In the pre-sentence report (Exhibit P4) and psychological assessment (Exhibit P3), the authors refer to circumstances alleged to have taken place at T. School which circumstances were not proven or relied upon for the purpose of these proceedings. R.H. has not admitted these allegations which are serious and prejudicial. The information was apparently provided by the Crown to the authors.

These reports include in the list of sources, a review of the Crown file or Prosecutors Information Sheet. Crown Counsel confirmed that the allegations were contained on the Crown’s file. The authors of the psychological assessment, dated November 23, 2012, also received a copy of the pre-sentence report dated October 23, 2012. [ 34 ] The pre-sentence report refers to circumstances at T. School, at page 8: R.H. has been suspended on multiple occasions and his behavioural issues were described by Ms. S., principal of T. School, as being “unbelievable”.

R.H. demonstrated aggressive behaviours toward students and teachers alike and his large size causes him to be very intimidating. Ms. S. indicates R.H. would constantly bother those around him and was a bully to other students. Of further concern, R.H. exhibited sexually intrusive behaviours; he would grab female students’ private parts and often made extremely explicit sexual comments. R.H.’s behaviour at T. School was so extreme that parents of other students began writing letters, demanding he be removed. Ms. S.

Advises R.H. was eventually transferred in order to protect the safety of others as his behaviours could not be managed within this school placement. [ 35 ] At page 16 under the headings, Inappropriate Sexual Activity and Sexual Assault (extra familial) the author of the pre-sentence report appears to have relied upon some of these unproven circumstances. The following excerpt under the one heading is provided by way of illustration: Sexual Assault (extra familial) Although never officially charged, R.H. has demonstrated ongoing sexually intrusive behaviours toward other youth in the educational environment.

R.H. was suspended from T. School for grabbing female students’ private parts. [ 36 ] In the “risk assessment” contained in the pre-sentence report, there are many references to behavioural problems which are described in a

summary fashion and do not pertain to the charges for which R.H. is being sentenced. There has not been a discussion about whether this information is reliable and it would be difficult to do so, given the number of references, their source, and the varying degrees of concern. Many personal impressions have apparently been relied upon by the author of the pre-sentence report. [ 37 ] R.H. was apparently unwilling to respond to many questions and was known to remark, “why do you need to know”. This was regarded as an indicator of poor attitude toward management of risk.

Under the heading, Pro-criminal Attitude/Orientation, the author remarked at page 12: . . . R.H.’s reluctance to discuss certain areas covered within this risk assessment also demonstrates a poor attitude towards the

management of his sentence. This raises the question, was he refusing to discuss incidents not related to the matters for which he is being sentenced? [ 38 ] More specifically, with respect to the psychological assessment of November 23, 2012, (Exhibit P3) counsel for R.H. advised that the Crown has not proven, nor does R.H. admit to allegations found on page 3, paragraph 1, and the incidents on January 13, February 7, and March 1, 2012.

Counsel advised further that R.H. does not admit the allegation that he burnt his young cousin with a lighter; the cousin is the daughter of the adult complainant in the break and enter and abduction charge. This latter allegation was found in the last paragraph on page 7 of the psychological assessment which is Exhibit P5: In regards to the Break and Enter and commit and Indictable Offense (Abduction, July 12, 2012) conviction, R.H. reported that he had been angry at his aunt (S.M.) since he was no longer allowed to go over to visit following accusations that he had burnt his young cousin with a lighter.

R.H. denied having done this and stated that he was angry because his sister was staying at his aunt’s and he would not be able to go visit his sister. [ 39 ] There are other allegations of inappropriate sexual behaviour in a school setting which were not discussed by counsel. The authors of the psychological assessment endeavoured to ascertain the reliability of certain of the alleged sexually inappropriate behaviours, stating at page 3: . . . On each occasion, the Ministry of Social Services was reportedly contacted and R.H. was eventually removed from this school placement owing to his behavioural issues.

During the interview, R.H. denied engaging in any of these sexualized acts, stating that they were all traceable to a single girl and her friends who did not like him and they fabricated these allegations. One of the writers (Dr. Olver) contacted T.

School to verify if these incidents did in fact occur; however, the school principal, Ms S. declined to offer comment on R.H.’s behaviour without permission to do so. [ 40 ] Under the heading, Conclusions and Recommendations, the authors of the psychological assessment remarked upon sexually inappropriate acts as part of a worrisome pattern, stating on page 12: Leading up to his criminal charges, R.H. demonstrated a persistent pattern of aggressive boundary violating behaviours that included both physically aggressive and sexually inappropriate acts, most visibly seen at school.

His criminal behaviours seem to be an extension of this pattern, committed largely while alone, wandering the neighbourhood at night, and motivated by material gain or revenge. On the basis of information provided from two standardized youth forensic assessment tools and all other information sources, R.H. is currently estimated to be a high risk for future violence and general criminal recidivism. [ 41 ] The authors of the psychological assessment recommended on page 13: 2.

While the aforementioned interventions have violence reduction (and general risk management) in mind, forensic service providers may well be advised to consider exploring R.H.’s sexually intrusive behaviours and to monitor and manage any risk he may pose for sexual violence. [ 42 ] Having regard to the report overall and the recommendations of the authors of the psychological assessment, I found that they appreciated the need for verification with respect to the allegations and endeavoured to provide and did provide a balanced report overall with sound recommendations. [ 43 ] There are two issues which these reports raise.

The first concerns reliance upon unproven information made available to the authors of reports and the responsibility for the facts to be relied upon. The second concerns the matter of risk itself and the weight to be given risk in this sentencing. [ 44 ] In this case neither counsel addressed their minds to the reliability of the content of the Crown’s file to be passed on to the authors of the pre-sentence and psychological reports which were ordered by the Court.

The Crown was unable to tell the Court anything about the vetting process before such information was conveyed to the youth worker and persons charged with completing the reports ordered

by the Court. [45] In R. v. C.L.S., (ON CA), [1999] 43 O.R. (3d) 143 (ONCA), the Court discussed the remedies when unprovenallegations were presented during a dangerous offender hearing, including that they may be ruled inadmissible if it is shown that theadmission of such evidence would render the proceedings unfair given the nature or number of the allegations. [46] Section 34(12) of the YCJA provides that a psychological assessment ordered pursuant to s. 34 of the Act forms part of the recordof the case. Section 34(8) permits cross-examination of the author of such a report.

Pursuant to s. 40(4), the pre-sentence report alsoforms part of the record. Similarly s. 40(6) permits cross-examination. Pursuant to s. 40(9) the pre-sentence report may be disclosed bythe provincial director to others as provided for in the Act, including to custodial facilities or anyone supervising the young person orassisting in the treatment or care of the young person. Pursuant to s. 34(7) a court may cause a copy of the psychological assessment tobe given to the provincial director, a facility where a young person is serving youth sentence.

The accuracy of the record is thereforevery important to the future of the young person when being dealt with under the Act. [47] In K.L.Q. v. R., 2007 SKCA 120, the Saskatchewan Court of Appeal considered the use to be made of a risk assessmentcontained in a pre-sentence report, remarking that the extent to which information regarding risk assessment influences or assists thecourt is a matter of judicial discretion: 10 There is no specific requirement in the YCJA for a risk of re-offending assessment to be done. However, s. 40(2)(

f) issufficiently broad to allow that it may be included if the provincial director considers it relevant. Further, information from a riskassessment may be helpful to the Court when considering the sentence to be imposed. It is for the YJCJ to use any or all the informationprovided in the pre-sentence report to craft an appropriate sentence in each case.

To what extent any information submitted in the pre-sentence report, with respect to risk assessment, influences and is of assistance to the YJCJ is a matter within the presiding YJCJs' discretion, which is exercised in accordance with the purpose and principles of the YCJA, and in particular, ss. 3, 38 and 39 thereof. [48] In R. v. H.W.G., 2003 SKPC 122 , [2003] S.J. No. 559, I first considered the use of the risk assessment tool used in thepre-sentence report. At paragraphs 28 to 33 I urged caution in their use. I considered their use again in R. v. M.D.D., 2004 SKPC 106, [2004] S.J.

No. 595 at paragraph 40: 40 The risk assessment and the recommendations that flow from it should not be confused with the appropriate sentence having regardto the principles under the YCJA. I have remarked before that the objectives and approach taken in the LSI-SK Youth ED. riskassessment tool appear to be somewhat at odds with the sentencing principles under the YCJA.

This is a perplexing problem to thesentencing judge who orders a pre-sentence report with a view to receiving assistance in making a decision in keeping with the principlesof the YCJA and receives a pre-sentence report which has become subsumed under the rubric of a risk assessment. In R. v. H.W.G.,supra, I said this of the risk assessment made available to the Court: [29] There appears to be potential for conflict between the risk/assessment tool, the resulting plan and the sentencing principles found inthe Youth Criminal Justice Act.

The difficulty appears to lie in the failure of the risk/assessment tool to connect with the specificoffences. For instance, the role of alcohol and anger in the commission of the offences was explored in Court because the Youth Workerrecommended anger management/cognitive skills/assertiveness programming and drug/alcohol screening and any recommendedtreatment/counselling plan. It was not clear from the assessment that either were factors in the commission of the offences.

The Courtwas told that during the interview process, the young person acknowledged experimentation with alcohol and drugs and reported that hehad experienced blackouts and aggressiveness. [30] There would appear to be a risk that as a result of the recommendations from the risk/assessment tool that sentencing may be usedfor purposes that are specifically prohibited. Section 39(5) prohibits the use of custody as a substitute for appropriate child protection,mental health or other social measures.

There is a danger that while well meaning we may impose conditions for supervision in thecommunity either on probation or a custody and supervision sentence which unnecessarily interfere with the young person's liberty andset him/her up for failure. [49] The foregoing discussion may be summarized: i. It is the responsibility of counsel to address the appropriate information to be conveyed to those asked toprepare reports for the court. If a dispute arises then it may be addressed in court. It is not the responsibility of the

authors of such reports to verify the information so conveyed. ii. Material and prejudicial facts that are disputed must be proven beyond a reasonable doubt or not relied upon for anypurpose and should not thereafter be distributed by the Crown. This applies in this case to the information about identifiedalleged incidents which were not among the offences for which the young person was to be sentenced. iii.

All reports which become part of the record should be scrutinized for accuracy and corrected where needed, given the relianceupon such reports by institutions and individuals charged with the supervision, care and treatment of young persons. iv. Caution must be exercised when relying upon second hand material or impressions in a pre-sentence orother report. However, given the relaxation of the rules of evidence in sentencing proceedings, unless counsel takeissue with material in a report, the court may consider it in weighing the information presented. v.

An important balance must be struck when considering background information about a young person, havingregard to the sentencing principles and direction under the YCJA. Risk assessment conclusions and the supporting informationinform the court but it must be careful to weigh the information for relevance and reliability and not sentence a young person for what he or she might do, but rather for the offences for which he or she is being sentenced. vi. Information gathered under the YCJA must not be shared with educational institutions unless authorized underthe Act.

c) Does the break, enter and commit abduction meet the gateway for a custodial sentence within the meaning ofs. 39(1)(

a) of the YCJA, as a violent offence? [50] This offence took place prior to the October 23, 2012 amendments to the YCJA which included a definition of “violent offence”. [51] In R. v. C.D., R. v. C.D.K., 2005 SCC 78, Justice Bastarache writing for the majority, gave “violent offence” a harm baseddefinition: an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm. A narrowdefinition was applied to exclude “pure property crimes”.

This harm based definition includes those offences where physical orpsychological harm is caused and focuses on the effects of the violence upon a person rather than means employed. [52] In R. v. McCraw, (SCC), [1991] 3 S.C.R. 72, the Supreme Court held that bodily harm includes psychologicalharm, at paragraph 22: 22 Does the phrase encompass psychological harm? I think that it must. The term "bodily harm" referred to in s. 267 is defined as "anyhurt or injury". Those words are clearly broad enough to include psychological harm.

Since s. 264.1 refers to any "serious" hurt or injurythen any serious or substantial psychological harm must come within its purview. So long as the psychological harm substantiallyinterferes with the health or well-being of the complainant, it properly comes within the scope of the phrase "serious bodily harm". Therecan be no doubt that psychological harm may often be more pervasive and permanent in its effect than any physical harm. I can see noprinciple of

interpretation nor any policy reason for excluding psychological harm from the scope of s. 264.1(1)(

a) of the Code. The focus with respect to the break and enter and commit abduction has been upon the psychological harm caused. [53] Crown Counsel used the phrase “home invasion”. In this regard I have considered R. v. J.S., (2006) (ONCA), 213 O.A.C. 274, and the discussion about the nature of a home invasion and the threat to an occupant’s sense of security in thehome, at paragraph 30: 30

Section 348.1 has no application to sentencing under the YCJA, of course. However, the factors it lists — the types of offencesmentioned, committed in the context of an occupied home and accompanied by the use or threat of violence — are common to the notion

of home invasion articulated in a number of authorities that have considered the issue, and to which I will refer in a moment. In my view,it is the presence of the occupants of the home, with the violation of their sense of sanctity and security in that place and the attendantexposure to the threat express or implied) of physical or psychological harm, that sets the home invasion apart from break and enter,robbery, and other offences committed in relation to a home. Such a crime is a "violent offence" within the meaning of s. 39(1)(

a) of theYCJA because it is an offence in which the young person "causes, attempts to cause or threatens to cause bodily harm" — physical orpsychological. [54]

Section 348.1 was interpreted by the Saskatchewan Court of Appeal in R. v. D.J.C., 2009 SCKA 3. It held: The essential elements of a home invasion were: (

i) occupancy of a dwelling house at the time one of the listed crimes wascommitted; (ii) knowledge or recklessness of the part of the offender as to whether the dwelling house was occupied; and (iii) actualor threatened use of violence to persons or property. [55] The crimes contemplated by s. 348.1 are: breaking and entering to steal a firearm (s.98), robbery to steal a firearm (s.98.1),forcible confinement (s.279(2)), robbery (s. 343), extortion (s.(346) and breaking and entering and commit an indictable offence (s. 348).This offence of breaking and entering and committing the indictable offence of abduction would qualify as an aggravating circumstanceif there was found to have been actual or threatened use of violence.

It would seem that s. 348.1 does not contemplate the circumstancesbeing considered in the case before this Court; for that to be the case I expect that there would have to be an overt use of violence,beyond that involved in carrying out the abduction itself. [56] Given that the complainant or victim of this offence was an infant who cannot speak for herself regarding psychological harm, Ihave considered whether such harm may be inferred from the circumstances of the offence. In R. v.

K.I., 2011 MBCA 11, the ManitobaCourt of Appeal considered an application for a serious violent offence designation and acknowledged that there may be somecircumstances where bodily harm can be inferred by the Court: 18 In this case, there was no evidence of any physical injuries to the victim. Further, the victim neither testified nor provided a victimimpact statement, so there was no evidence that the offence caused him any psychological harm.

While, in some cases, it might be opento the court to infer serious bodily harm, and particularly psychological harm, from the nature of the offence, the offence in this casedoes not necessarily lead to that type of inference, as is demonstrated by the N. (D.) case. [57] In R. v. J.R., [2010] O.J.

No. 2813 (ONCJ), Feldman, J. sentenced a young person for sexual assault and forcible confinement.The Court declined to make a serious violent offence designation but remarked upon the violent nature of a sexual assault, at paragraph25: 25 In relation to this case, it is accepted in the authorities that crimes of sexual assault are inherently violent and can and often do havea crippling effect upon the psychological and emotional well-being of the victim: per Moldaver J. (as he then was) in R. v. McF,April 27, 1992, unreported (Ont. Gen. Div.), referred to with approval by Abella J.A. (as she then was) in R. v.

Stuckless (1998), (ON CA), 127 C.C.C. (3d) 225 (Ont. C.A.). [58] In R. Stuckless, supra, Abella J.A. (as she then was) remarked upon the absence of overt violence but rather the exploitation oftrust and wrote at page 13: Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It iscoercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless. As Moldaver J.stated in R. v. McF., released April 27, 1992, unreported (Ont. Gen. Div.): I cannot conclude that [the accused] should be treated in a more lenient fashion simply because he refrained from the use of threats ofphysical harm or the infliction of limited and measured amounts of force. . . .

I must again reiterate the feelings that I have expressed in similar cases where the lack of serious physical harm has been advanced asa factor to be considered in mitigation. The crimes of incest and sexual assault are inherently violent. They can and often do have acrippling effect upon the psychological and emotional well-being of the victim. Conduct which brutalizes the mind can be far moredevastating, painful and long-lasting than conduct which causes injury tothe body.

[ 59 ] An analogy may be made to an offence of abduction against a child. The 20 month old infant in this case is unable to articulate or likely appreciate the nature of the offence committed against it but that does not make it less violent. One has only to picture an adult in the place of the infant to appreciate the element of violence involved in the offence. We know something of the reaction of her mother when she learned of the event after the fact. An infant is entitled, more so than an adult, to the safety and security of its home and its bed in that home.

While an infant is often physically transported around without regard to its wishes it comes to expect that this will not take place without the consent and support of its closest caregivers. This infant was extremely vulnerable. We know that she was ill and crying. We know that the young person was refused access to her home, out of concern for an older sibling. R.H. entered her bedroom in her home via a window, removed her from her bed and her home via that window and took her down a ladder.

He carried her about, placed her on the ground outside and left alone in the rain, likely for a short time, but without regard to her safety or comfort. She became cold and dirty before she came to the attention of R.H.’s mother who changed her and returned her to her home. It is quite possible in these circumstances that the baby was very distraught and crying for her mother.

In the circumstances it is not necessary that there be evidence that the distress continued beyond that evening (that will remain unknown) for it to be regarded as a violent offence. [ 60 ] I do not know that all cases of abduction would be found to be inherently violent; however I find that this abduction evidenced a degree of bodily harm which is consistent with a finding that it was a violent offence. The harm necessary to such a finding may be inferred from the objective facts.

d) Does the robbery meet the gateway for a custodial sentence within the meaning of s. 39(1)(

a) of the YCJA? [ 61 ] The robbery offence was committed following the amendments to the YCJA that came into force on October 23, 2012. The amendment and inclusion of a definition of “violent offence” in s. 2 is set out below: “violent offence” means (

a) an offence committed by a young person that includes as an element the causing of bodily harm; (

b) an attempt or a threat to commit an offence referred to in paragraph ( a ); or (

c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm . ( bodily harm has been italicized for emphasis.) [ 62 ]

Section 39 of the YCJA is part of a legislative scheme which is designed to restrict the imposition of custody. It provides, post amendment: 39.

(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless (

a) the young person has committed a violent offence; (

b) the young person has failed to comply with non-custodial sentences; (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985; or (

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. [ 63 ]

Section 2 of the Criminal Code defines bodily harm: "bodily harm" means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature;

[64] In R. v. C.D.; R. v. C.D.K., supra, the phrase "bodily harm" was discussed at paragraph 20: . . . Although the concept of "bodily harm" is not defined in the YCJA, s. 2(2) of this Act states that "[u]nless otherwise provided, wordsand expressions used in this Act have the same meaning as in the Criminal Code."

Section 2 of the Criminal Code defines "bodily harm"as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or triflingin nature". . . [65] The facts concerning the robbery do not support a finding of bodily harm. While it is relatively close to the line, there areinsufficient indicia of harm of either a physical or psychological nature to amount to bodily harm.

e) Does the break, enter and commit abduction meet the gateway for custody within the meaning of s. 39(1)(

d) of the YCJA as an exceptional case? [66] Section 39(1)(

d) provides: 39.

(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless . . . (

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence aresuch that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. [67] R. v. R.E.W. (2006), 205 C.C.C. (d) 183 (ONCA) was a truly exceptional case in which the young person was an accessory afterthe fact to murder. The Court provided a helpful analysis and test for imposition of a custodial sentence pursuant to s. 39(1)(d).Beginning at paragraph 40 it pointed out that the focus of the discussion must be on the circumstances of the offence and not thecharacter or history of the offender: 40 Second, s. 39(1)(

d) is focused solely on the circumstances of the offence and not the character or history of the offender. See R. v. C.(J.E.), 2004 BCSC 1341 , [2004] B.C.J. No. 2244 (B.C. S.C.) at para. 63. The circumstances of the offence must be soaggravating that nothing less than custody will vindicate the purpose and principles set out in s. 38. . . . Much of what may be considered shocking about this case is the information in the reports regarding the young person’s personalbackground circumstances. Much of that information is based on a survey of persons, including school personnel and it is rife withpersonal impressions. [68] R.E.W., supra, provided guidance for the application of s. 39(1)(

d) at paragraph 44: 44 I draw the following conclusions respecting the

interpretation of s. 39(1)(d): • The object and scheme of the YCJA and Parliament's intention indicate that the Act was designed to reduce the overreliance oncustodial sentences that was the experience under the YOA. See R. v. D. (C.), supra, at para. 50. • An expansive definition of "exceptional cases" would frustrate Parliament's intention to reduce the overreliance on custodial sentences. • Section 39(1)(

d) can be invoked only because of the circumstances of the offence, not the circumstances of the offender, or the offender'shistory. • Exceptional cases are those where any order other than custody would undermine the purposes and principles of sentencing set out in s.

38 . Pu t a no t h e r w a y , s . 39 ( 1 )(

d) i s i n te nde d t o d escri b e t h e rar e non - v i o le nt case s wh er e a pp l y i n g t h e g e n era l r u l e a g ai n s t a c u st od ia l d is po siti o n wou l d und er m i n e t h e pu r po s e o f t h e YC J A . • Ex ce p ti on a l case s ar e li m ite d t o t h e cleares t o f case s wh er e a c u st od ia l d is po siti o n i s obv i ou sl y t h e on l y d is po siti o n t h a t ca n b e j u stifie d. • On e e x a m p le , o f a n e x ce p ti on a l cas e i s a cas e wh er e t h e circ u m sta n ce s ar e s o s ho c k i n g a s t o t h reate n w i d el y -s ha r e d commun it y va l ue s. [69] In R. v.

S. T. , 200 9 BCC A 274 , the Court of Appeal for British Columbia remarked that a disposition pursuant to s. 39(1)(

d) does not require consideration of alternatives to custody; which is required for a custodial disposition pursuant to s. 39(1)(

a) to (c). Section 39(2) and (3) provide: 39(2) If any of paragraphs (1)(

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in

section 38. 39(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances. The Court noted that a disposition under s. 39(1)(

d) must nevertheless be in accordance with the principles set out in s. 38 which requires consideration of alternatives to custody that are reasonable in the circumstances with particular attention to the circumstances of aboriginal young persons . [70] If I should be found to be in error in my reasoning with respect to the inferences of harm and a finding that the break and enter dwelling house and abduction was a violent offence as contemplated by. s. 39(1)(a), then I would impose a custodial sentence pursuant to s. 39(1)(d). I say this reluctantly as this subsection should not be invoked as an alternative to a finding of a violent offence pursuant to s. 39(1)(

a) in these circumstances. Great caution should be used before imposing custody pursuant to this subsection where there are found to be insufficient indicia of harm in an otherwise violent offence. The gravamen of the abduction, perhaps any abduction, barring other aggravating circumstances, must be the psychological harm to the person. However, the break and enter dwelling house and abduction raises serious concerns, and the circumstances of the offence are so aggravating, that having regard to the purpose and principles of sentencing set out in s. 38, they warrant the imposition of a custodial sentence.

It is the only appropriate means to address the harm to this exceptionally vulnerable victim.

f) Is custody an appropriate sentence? [71] Once the gateway is open, the Court must consider s. 38 of the YCJA before imposing a custodial sentence. 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. 38(2) 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 (Amendment d. October 23, 2013 has been italicized and follows) (

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. 38(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. [72] In R. v. D.B . , supra, the Supreme Court of Canada held that it was a principle of fundamental justice that young persons were entitled to a presumption of diminished moral blameworthiness or culpability flowing from the fact that, because of their age, they have heightened vulnerability, less maturity and a reduced capacity for moral judgment.

The Court remarked that age, which plays a significant role in the development of judgment, warrants leniency: 6 2 I t i s w i d el y ac know le dg e d t h at a g e p la y s a r o l e i n t h e d e v el opm e n t o f j udgm e n t a n d mo ra l s oph isti c ati on . P r o fess o r A lla n M a n s o n no te s t h a t "[t] h e g e n era l p ri n ci p l e t h a t a pp lie s t o you t h f u l o ffe nd er s .. . [is ] t h a t a lac k o f e xp erie n c e w it h t h e wo rl d w arra n t s le n ie n c y a n d op ti m is m f o r th e f u t u re " ( Th e La w o f S e n te n ci n g ( 2001 ) , a t pp . 103 - 4 ) .

An d P r o fess o r B al a d escri b e s t h e YC J A as p re m ise d o n a rec ogn iti o n t h a t t o b e a you t h i s t o b e i n a stat e o f " d i m i n is h e d res pon si b ilit y " i n a mo ra l a n d i n tell e ct u a l se n se . Ado lesce n ts , a n d e v e n mo r e s o c h il d re n , lac k a f u ll y d e v el op e d a du l t se n s e o f mo ra l j udgm e n t . Ado lesce n t s als o lac k t h e i n tellect u a l ca p acit y t o a pp reciat e f u ll y t h e c on se qu e n ce s o f t h ei r acts .

I n m a n y co n te x ts , you t h s w il l ac t w it hou t f o resi gh t o r sel f -a w are n ess , a n d t h e y m a y la c k e mp at h y f o r t ho s e wh o m a y b e t he v icti m s o f t h ei r w r ong f u l acts . You t h s wh o ar e a pp re h e nd e d a n d as k e d wh y t h e y c omm itte d a cri m e mo s t f r e qu e n tl y res pond : " I don ' t now . " B eca u s e o f t h ei r lac k o f j udgm e n t a n d f o resi gh t , you t h s als o te n d t o b e poor cri m i na l s a nd , a t leas t i n c omp aris o n t o a du lts , ar e relati v el y eas y t o a pp re h e nd . ..

Th i s i s no t t o ar gu e t h a t a d o lesce n t o ffe nd er s s hou l d no t b e mo rall y o r le g all y acc oun ta b l e f o r t h ei r cri m i n a l acts , bu t on l y t h a t t h ei r a c c oun ta b ilit y s hou l d , i n g e n eral , b e m o r e li m ite d t h a n i s t h e cas e f o r a du lts . ( italicized emphasis added ) [73] The comment above of Professor Bala regarding the tendency for a youth to remark, “I don’t know” in answer to questions about “why?” is quite pertinent to R.H.’s interview with the author of the pre-sentence report.

The report repeatedly remarks upon R.H.’s reluctance to answer some questions and his response of “I don’t know” in the risk assessment, at pages 6 to 7: R. was interviewed in person on September 20, 2012. . . Although polite, R. presented as being somewhat resistant to participating in the LSI interview. There were certain risk areas, particularly Companions and Procriminal Attitude/Orientation R. appeared unwilling

to discuss, as he avoided and deflected questions before essentially shutting down. . . It was remarked upon twice under the heading of Companions and Procriminal Attitude/Orientation, at page 11: It should be noted R. presented as unwilling to participate in this portion of the interview as he answered “I don’t know” to eachquestion asked of him.

And again at page 12: It should be noted that R. presented as unwilling to participate in this portion of the interview as he answered “I don’t know” to many ofthe questions asked of him, in particular those questions designed to rate his attitude/orientation to criminal behavior and his attitudetoward his offence, sentence and supervision. [74] The authors of the psychological assessment cautioned those working with R.H. that he should be treated in keeping with hischronological age - 13 years: 8. With his large physical stature and interpersonal style, R. comes across as being much older than he really is.

Those workingwith R. are advised to bear in mind that he is only 13 years old, and thus could be expected at times to reason and function as a 13 yearold might. Expectations of R. may best be kept commensurate with his chronological age and cognitive and emotionaldevelopment, while also taking into consideration his level of outward maturity. [75] The psychological assessment provided background information (pages 2 to 3) indicating that behavioural difficulties surfaced asearly as age four.

There was an episode of breaking windows at age six, being reported missing at age eight and at age 10 being admittedinto psychiatric care under The Mental Health Act to undergo assessment and stabilization. R.H. reported being suspended or expelledfrom eight of the ten schools he attended. [76] R.H. is a First Nations youth from the Peter Ballantyne First Nation.

His aboriginal background is raised on page 19 of the pre-sentence report, under the heading: Gladue Ruling, the content of which is set out below: R. advises he is a First Nation person from the Peter Ballantyne First Nation who presently lives in Saskatoon, Saskatchewan. Hedoes not feel he has been affected by substance abuse in the community. He does not believe he has been affected by poverty. R. hasnot experience overt racism. R.’s parents are separated but he does not see himself as being affected by family breakdown.

R. has notexperienced difficulties surrounding unemployment or lack of employment opportunity. He has not been affected by dislocation from anAboriginal community. R. does not believe he has been affected by the residential school system. [77] In R. H.’s case there might have been a more thorough exploration of Gladue factors and alternatives in the pre-sentence reportparticularly in light of information conveyed by his mother at page 17, that there has been extensive sexual abuse on her side of thefamily and the long-standing suspicion that R.H. has been a victim of sexual abuse.

As well on page 11, the father reported that two peer-aged relatives have had significant criminal involvement. The psychological assessment provides further indications of Gladue factorsbeing pertinent, including a report that a number of relatives are members of gangs throughout the province. [78] In R. v. J.L.M., 2005 SKPC 28, I remarked on the importance of exploring Gladue factors in pre-sentence reports under theYCJA. In R. v. T.D.P., 2004 SKPC 57 , [2004] 3 C.N.L.R. 318 (SKPC) a conference was held that assisted in providinginformation pertinent to Gladue.

I engaged in a relatively thorough discussion at paragraphs 23 to 28, a portion of which is reproducedbelow: 23 The Youth Criminal Justice Act very clearly and repeatedly calls for consideration of Gladue factors and alternatives in thesentencing process. Gladue is of course a reference to the Supreme Court of Canada decision of R. v. Gladue, (SCC),[1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 [ 171 D.L.R. (4th) 385, [1999] 2 C.N.L.R. 252, 133 C.C.C. (3d) 385, 23 C.R. (5th) 197, 238N.R. 1].

Section 50 of the YCJA provides that the sentencing provisions of the Criminal Code do not apply to proceedings under this Act. The exception to this is s.718.2(

e) which is known as the Gladue provision.

Section 50 provides: 50.

(1) Subject to

section 74 (application of Criminal Code to adult sentences),

Part XXIII (sentencing) of the Criminal Code does not apply in respect of proceedings under this Act except for paragraph 718.2(e) (sentencing principle for aboriginal offenders), sections 722 (victim impact statements), 722.1 (copy of statement) and 722.2 (inquiry by ourt), subsection 730(2) (court process continues in force) and sections 748 (pardons and remissions), 748.1 (remission by the Governor in Council) and 749 (royal prerogative) of that Act, which provisions apply with any modifications that the circumstances require. 25

Section 718.2 (

e) of the Criminal Code provides: 718.2 A court that imposes a sentence shall also take into consideration the following principles: ... (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. 26 The Youth Criminal Justice Act reinforces the importance of examining the experience of Aboriginal young persons in the Declaration of Principle found at s.3, which I have set out in part:

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

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should reinforce respect for societal values, 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 the parents, 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 persons with special requirements; 27 The Purpose and Principles of Sentencing found at

section 38, direct the sentencing judge to consider all available sanctions other than custody, particularly for Aboriginal offenders. It is important to note that s. 38(2)(d), consideration of alternatives to custody for Aboriginal offenders, is on equal footing with other principles in 38(2) and specifically: (

a) not imposing a sentence greater than would be imposed on an adult, (

b) regional parity, (

c) proportionality, and (

e) achieving the least restrictive sentence having regard to proportionality, rehabilitation and promoting responsibility and acknowledgement of harm to the victim. . . . 28 It's also important to discuss the significance of the Supreme Court of Canada's decision in R. v. Gladue, supra, particularly in the context of the Youth Criminal Justice Act and the request for a custodial sentence for this First Nation Young Person. In R. v. John, [2004] S.J. No. 61 , 2004 SKCA 13 , Mr.

Justice Vancise of our Saskatchewan Court of Appeal reminded us that we are required to consider the unique systemic circumstances and background of an Aboriginal offender as they are germane to the decision to impose a custodial or non-custodial sentence.

It is helpful to refer to that discussion and the very precise directions provided by the Supreme Court of Canada and our Court of Appeal, beginning at paragraph 24. . . . [26] Thus, from an examination of those paragraphs in Gladue and others to which I will specifically identify, the sentencing judge should be provided with the following information on a sentencing hearing: 1) Whether the offender is an aboriginal, that is, someone who comes within the scope of s. 25 of the Charter and s. 35 of the Constitution Act, 1982 ; 2) What band or community the offender comes from and whether the offender resides in a rural area, on a reserve or in an urban center.

The information should also include what alternatives exist to incarceration, the particulars of alternative measures in the community, the particulars of treatment facilities and the existence of a justice committee. 3) What combination of systemic or background factors contributed to this offender coming before the court? Has the offender been affected by substance and alcohol abuse in the community, or poverty, or overt racism or family or community breakdown? 4) Would imprisonment effectively deter or denounce the crime in the community?

5) What sentencing options exist in the community at large and in the offender's community? [27] In sentencing an aboriginal offender, as for all offenders, the sentencing judge must take into account all of the circumstances of theoffence, the offender and the victim, including the unique circumstances of the offender as an aboriginal. The sentencing judge mustalso receive general information about the aboriginal community at large concerning systemic poverty, alcohol and substance abuse, andcultural and racial bias.

The YCJA encourages consultation with the young person, the family and the community and provides the mechanisms to do so.Through these mechanisms we may obtain meaningful information of the kind contemplated in R. v. Gladue, supra and R. v. John,supra. Those mechanisms include the PSR and the Conference. [79] Recently the Supreme Court of Canada revisited the concerns raised in R. v. Gladue, supra, in R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13. The Court noted the failure of courts in Canada to adequately embrace Gladue analysis and applicationand it provided added guidance.

An excerpt of that decision serves to underscore the importance of examining the underlyingcircumstances which may have influenced the offending behavior and may be relevant to culpability as well as the importance of craftinga sentence which effectively addresses the underlying concerns: 63 Over a decade has passed since this Court issued its judgment in Gladue. As the statistics indicate,

section 718.2(

e) of the CriminalCode has not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system. Granted, the Gladueprinciples were never expected to provide a panacea. There is some indication, however, from both the academic commentary andthe jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s.718.2(

e) and this Court's decision in Gladue. The following is an attempt to resolve these misunderstandings, clarify certain ambiguities,and provide additional guidance so that courts can properly implement this sentencing provision. . . . 72 . . .The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginaloffender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) theunique systemic and background factors which may have played a

part in bringing the particular Aboriginal offender before the courts;and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of hisor her particular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and propersentence. 73 First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or herlevel of moral blameworthiness.

This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the uniquesystemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender'sconduct" (Wells, at para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows fromvoluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack ofopportunities and limited options for positive development. While this rarely -- if ever -- attains a level where one could properlysay that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrainedcircumstances may diminish their moral culpability.

As Greckol J. of the Alberta Court of Queen's Bench stated, at para. 60 of R. v.Skani, 2002 ABQB 1097, 331 A.R. 50, after describing the background factors that lead to Mr. Skani coming before the court, "[f]ewmortals could withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into account would violate the fundamental principle of sentencing -- that the sentence must be proportionate to the gravity of the offenceand the degree of responsibility of the offender.

The existence of such circumstances may also indicate that a sanction that takes accountof the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. As Cory andIacobucci JJ. state in Gladue, at para. 69: In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors inevaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to thecommunity of which the offender is a member.

In many instances, more restorative sentencing principles will gain primary relevanceprecisely because the prevention of crime as well as individual and social healing cannot occur through other means. 74 The second set of circumstances -- the types of sanctions which may be appropriate -- bears not on the degree of culpability of theoffender, but on the effectiveness of the sentence itself. As Cory and Iacobucci JJ. point out, at para. 73 of Gladue: "What is important torecognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they

have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities." As the RCAP indicates, at p. 309, the "crushing failure" of the Canadian criminal justice system vis-à-vis Aboriginal peoples is due to "the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice." The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community. [80] The Gladue / Ipeelee reasoning regarding the impact of background factors on culpability is particularly important to this stage of this Court’s deci

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