2016 MBPC 74, 2016 MBPC 74

Cite # 2016 MBPC 74 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Melissa Schrader, for the Crown ) Libby Standil, for the Crown - and - ) ) Gisele Champagne, for the Accused B.R., young person, Accused ) ) ) Judgment delivered: ) February 1, 2017 RESTRICTION ON PUBLICATION: Please note that the Youth Criminal Justice Act (YCJA), s. 110(1), prohibits the publication of any information that may identify a person as having been dealt with under this act and that same applies to this judgment. CORRIN, P.J. Introduction [ 1 ] B.R. pled guilty to reckless discharge of a firearm contrary to s. 244.2(1)(

a) and the Crown has applied to have him sentenced as an adult rather than as a young person. [ 2 ] The Crown’s application for an adult sentence is opposed by B.R. His position is that he should be sentenced as a young person for his offence. [ 3 ] The Court heard submissions with respect to this application on September 1 st and 6 th , 2016. The following evidence was received on the first date: a Gladue -style pre-sentence report (PSR) compiled and dated July 22, 2016 prepared by Jennifer Williams, Probation Officer; a forensic report prepared by and supported by the viva voce testimony of Dr.

Keith Hildahl, a psychiatrist at Youth Forensic Services; the testimony of Ms. Tracy Desaulniers, Permanent Ward/Transitional Care Worker, Sagkeeng Child and Family Services (CFS). [ 4 ] B.R. chose not to make any comments to the Court at the hearing although he was given the opportunity to do so. The Incident [ 5 ] On February 24, 2015 at approximately 1:15AM B.R. attended to a residence at 39 – 259 Dufferin Avenue in Winnipeg accompanied by two other individuals. B.R. was 16 years old at the time of the incident.

One of B.R.’s fellow gang members, an unidentified male who was armed with a 22 calibre rifle, knocked at the resident’s door and shot the 19 year old male victim, a member of a rival gang, in the abdomen when he came to the door. B.R. watched the shooting and fled with his two confederates afterwards. Shortly after his arrest, four days later, B.R. told Winnipeg police that the idea for the shooting was his, the motive being to avenge the killing of a former friend and gang colleague, a teen who was killed by the other gang’s members a couple of years prior.

A slightly different version of his involvement was related to Ms. Williams. When questioned about his involvement in the incident by Ms. Williams he reported that he had decided to join the other two gang members involved when another individual dropped out at the last moment. There was no mention to Ms. Williams that he was the one who thought up the plan. [ 6 ] The shooting victim reports himself to have been “pretty traumatized” by the offence.

He was hospitalized for four days as a result of his injuries and was forced to put his schooling on hold for about four months until he was able to return the following semester. The Law [ 7 ] The Crown’s application for an adult sentence is made pursuant to s. 64(1) of the YCJA . [ 8 ] Pursuant to s. 64(1) the offence is a “non-presumptive” offence for which an adult sentence may be considered as same is one for which an adult is liable to imprisonment for a term of more than two years and was committed after the young person was 14 years of age. B.R. was 16 years old at the time of the offence.

Accordingly, the YCJA eligibility requirements for consideration of an adult sentence for B.R. are met. [ 9 ] The Court is also satisfied that the notice requirements prescribed by s. 64(2) of the YCJA have also been met.

[ 10 ] The test for determining whether an adult sentence should be imposed on a youth is set out in s. 72 of the YCJA . Such

section provides as follows: Order of adult sentence 72

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

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

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

section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour. Order of youth sentence

(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed. Onus

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General. [ 11 ] The seriousness of the offence, as here, does not automatically lead to an order for an adult sentence. A quote from R. v. B.L. by Mainella, J., as he then was, is apropos: Accordingly, to rebut the presumption of diminished moral blameworthiness, the Crown must demonstrate to the court’s satisfaction that the young person had the moral capacity of an adult at the time of the offence(s). Relevant are the circumstances of the offence(

s) and the young person. See D.B. at paras. 77 and 94. ( R. v. B.L. , 2013 MBQB 89 at paras. 38 and 86 ) [ 12 ] It is necessary that a Court consider the provisions of s. 3(1)(b)(ii) and s. 38 in determining the length of any adult sentence, should the Court determine that it is necessary to impose same. Policy for Canada with respect to young persons 3(1) the following principles apply in this act: (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity. Purpose and Principles 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.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and (

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

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

(3) In determining a youth sentence, the youth justice court shall take into account: (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young persons; 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. [ 13 ] As stated by the Ontario Court of Appeal in R. v. O(A.) ; R. v. M.(J.), 2007 ONCA 144 , accountability in the context of the YCJA is the equivalent of the adult sentencing principle of retribution:

(44) While s. 38 sets out principles of sentencing that could have individual as well as societal purposes, these must be read in light of the purposes of sentencing in the youth justice context. Thus, for example, s. 38(2)(

c) sets out as a principle of sentencing that the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence. In the context of the YCJA , proportionality must be seen as providing an upper limit on the sentence that can be imposed on the offender. In other words, even if a long sentence were deemed necessary to rehabilitate the offender and hold him or her accountable, the sentence still must not be longer than what would be proportionate to the seriousness of the offence and the offender's degree of responsibility.

That is not a concern in this case. The offences in this [page 576] case are so serious that an upper limit fixed by the principle of proportionality would not be less than what might be necessary to hold the offenders accountable.

(45) Thus, the question in this case is what is meant by the terms accountability, meaningful consequences, rehabilitation andreintegration. One obvious point is that meaningful consequences cannot be synonymous with rehabilitation and reintegration.Parliament has used the different terms and is presumed to have intended different meanings…

(46) In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by LamerC.J.C. in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 105 C.C.C. (3d) 327, at paras. 80 and 81: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender's conduct.

Furthermore, unlike vengeance,retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothingmore. ….. Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicialsentence properly reflect the moral blame-worthiness of that particular offender. The objective of denunciation mandates that a sentenceshould also communicate society's condemnation of that particular offender's conduct.

In short, a sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code ofvalues as enshrined within our substantive criminal law. (underlining and italics added)

(47) In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does aretributive sentence, "the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequentialharm caused by the offender, and the normative character of the offender's conduct" (underlining omitted). We see no other rational wayfor measuring accountability. [14] As stated in s. 72(2), the onus of proof rests on the Crown to satisfy me that the conditions of s. 72(1) have been met.

In R. v.O.(A.) the Court concluded this is not a heavy onus, but requires that I keep in mind the very serious consequences of an adult sentenceon a young person and that I should only order it when necessary. The court must also be mindful that the sentencing of a youth is“offender-centric” [R. v.

O.(A.), at para. 43] and that accordingly the onus on the Crown to “satisfy the court” should not be categorizedin terms of civil or criminal standards of proof: The question rather is whether one is satisfied after weighing and balancing all the relevant considerations that the case should betransferred to ordinary court. [para. 33] It is important that a youth justice court bear in mind the very serious consequences of an adult sentence for the young person so as toonly order an adult sentence when necessary to fill the objectives of the YCJA. [para. 38] [15] Turning to the situation before me s. 42 of the YCJA provides that the maximum sentence for this offence is 2 years custodyfollowed by one year probation supervision.

If sentenced as an adult the sentence for this offence is 5 to 14 years custody. [16] B.R. has been in custody since his arrest on February 28, 2015, almost two years. Although s. 38(3)(

d) of the YCJA requires theCourt to take into account the time spent in detention as a result of the offence, this does not preclude the imposition of the maximumsentence set out in the YCJA as the Court is not obliged to give credit for pre-sentence time in custody. B.R.’s counsel stressed thedefendant’s very limited criminal history and argued that a youth sentence is the appropriate disposition. Discussion and Analysis [17] The Crown accurately highlighted the aggravating and concerning features of the crime.

I also agree with the Crown that B.R.was in all likelihood a fully complicit albeit subordinate participant in the offence but not its planning. B.R.’s low functional I.Q., relatedby Dr. Hildahl to be only in the borderline intelligence range does not suggest a strong likelihood that he was, as he initially told policeinvestigators, the leader in this matter. Having heard Ms. Desaulniers’ testimony I am inclined to perceive B.R. as a high needs youthwho is more of a follower than a leader and as such most probably unappreciative of the full consequences of his actions.

I wasparticularly struck by her description of B.R. as having been at the time of the incident a youth with “a reduced ability” to anticipate theconsequences of his actions and behaviour, in her professional opinion much less focused than he now is. A similar observation was

made by Dr. Hildahl, who perceived “maturing” and “more responsible behaviour” subsequent to B.R.’s arrest and placement at the Manitoba Youth Centre. [ 18 ] The pre-sentence report, amplified by the testimony provided by Ms. Desaulniers, strongly suggests that B.R. is the product of a deprived and dysfunctional childhood. He, like his mother, who gave birth to B.R. when she was only 15 years old, was a product of a substance abusive home. B.R. has never met his father. Both of his mother’s parents were residential school survivors.

B.R. entered agency care in 2010, at twelve years of age, reportedly because his mother was residing with a known pedophile. Prior to that he’d resided in the Sagkeeng First Nation community for several years with his mother’s parents, returning to his mother’s care when they were no longer physically able to look after him. The pre-sentence report confirms numerous placement relocations thereafter, a situation which brought an end to contact with all his younger siblings, who were apprehended by CFS at the same time.

He then, at age fifteen, resided in Winnipeg with an aunt who also struggled with substance abuse and consequent child care issues. [ 19 ] His CFS apprehension and the subsequent dislocation marked a significant turning point in his young life. Court was told that B.R. has not regularly attended school since he was 12 years old. [ 20 ] Not surprisingly, given the exceptional vulnerability associated with his having been relocated from his essentially rural home community, B.R. was recruited by a Winnipeg street gang after being placed in care. He also started to use drugs.

Marijuana use soon became a daily activity. B.R. began also to experiment with more expensive and pernicious drugs which I assume, were probably strategically and self opportunistically provided by senior members of the street gang. Court was told that his cocaine use now requires therapeutic intervention. [ 21 ] There can be no doubt that B.R.’s personal issues and cognitive deficits make him particularly vulnerable to negative influences as well as impulsivity. There is also little question that his life circumstances have conspired to reduce his capacity to make positive, well-reasoned pro-social decisions.

However, even though he presents at this point as being somewhat delayed developmentally he is nevertheless beginning to show signs of exercising improved personal judgment. He has for instance achieved several grade 9 credits at Doncaster School at MYC and is described (in the PSR) by a teacher to take great pride in the work he has completed. Such teacher also observed that an initially “highly reluctant” and “very resistant” B.R. has now become one of the hardest workers in her classroom.

Formerly, operating at only a grade 3 reading level, he is now described as possessing a grade 5 achievement level and has become “an avid reader” whose self-expressed goal to attain a mature student’s diploma “is attainable based on his motivation and progress”. B.R.’s recent involvement in this respect clearly marks a major attitudinal change, which suggests that he is both maturing and developing better judgment.

This point is graphically illustrated by reference to a PSR related notation on his earlier CFS file which indicated B.R.’s “resistance to getting an education has placed him vulnerable to negative influences and making poor choices in life”. Ms. Desaulniers altruistically acknowledged that B.R.’s many placement changes profoundly dislocated him in respect to school participation. This is a remarkable situation given his past lack of educational motivation and involvement. [ 22 ] I can find little, if anything, to suggest that B.R. had the moral capacity of an adult at the time of his offence.

Indeed all the evidence seems to point in the opposite direction, leading me to believe that he was not really functioning at an age level or degree of responsibility anywhere equivalent to his chronological age. [ 23 ] Even though the seriousness of the offence and the gang related involvement suggest some evidence in favour of an adult sentence in relation to s. 72(1)(b), I am not convinced that such should be the case as I am not satisfied on the evidence that B.R. had the moral capacity of an adult at the time of the offence.

Some social-science researchers have concluded that street gangs are a kind of family, that they often perform a family-like role for members, in particular when the involved youths are vulnerably in special need of emotional refuge, material support, physical protection and social belonging. B.R.’s life circumstances after CFS intervention certainly suggest that his gang-involvement manifested itself for such reasons.

He was really a neglected, maladjusted and cognitively delayed Aboriginal youth who was unable to cope with the psychological and emotional demands of his displacement from family, friends and his indigenous community. For this reason I perceive his gang involvement as more related to a personal struggle to survive than to criminal or anti-social predisposition or tendencies. B.R.’s gang situation was also arguably reflective of Gladue background factors which were clearly related in the PSR. As such I must be mindful that, I am bound to take the criteria in R. v.

Gladue (1999) 1 S.C.R. 433 into account. [ 24 ] Again, in this respect, I cite the comments of Mainella, J., as he then was, in R. v. B.L. (previously cited) at paragraph 79: “Proportionality in sentencing aboriginals requires greater sensitivity and understanding of their personal and collective experiences… Parliament has decided that they should be treated through a different methodology in recognition of the fact that aboriginal peoples have faced significant social problems. See Ipeelee at paragraph 71” (see also R. v.

D.L.S. et al , 2012 MBQB 177 at paragraph 54 ) [ 25 ] It is also my view that B.R. possessed significantly less moral culpability than B.L ., a case relied on by the Crown, because he was not armed, did not directly participate in the shooting and was not for the reasons I gave before, the leader of the attack group. For these reasons I believe that B.R.’s Aboriginal background and difficult upbringing are more of an ameliorating factor in relation to B.R. [ 26 ] As well, one must be mindful of the dicta at paragraph 42 of R. v.

Smoke (DD), 2014 MBCA 91 in relation to the role moral blameworthiness plays in the sentencing of Aboriginal offenders: [T]he factors related to the accused’s circumstances as an Aboriginal offender must be taken into account as mitigating factors going to moral blameworthiness and weighed, together with all of the other mitigating and aggravating factors related to the offender and the offence, in determining the appropriate sentence for each offence.

[ 27 ] Accordingly, having attempted to balance and weigh all the relevant considerations, I am unable to conclude that the presumption of diminished moral blameworthiness or culpability of the young person has been rebutted to the extent that a youth sentence would not be of sufficient length to hold B.R. accountable for his offending behaviour. I therefore reject the application by the Attorney General for an order that B.R. be liable to an adult sentence. “Original signed by” CORRIN, P.J