Her Majesty the Queen - v. -, 2015 SKPC 035

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2015 SKPC 035 Date: February 23, 2015 Information: 44408618 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - K.S.V. Appearing: J. Maclean For the Crown T.

Talbot For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act ( YCJA ) 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 REASONS S.S. Anand , PCJ _____________________________________________________________________________ INTRODUCTION [ 1 ] The young person before the court, K.S.V., entered guilty pleas to one count of robbery contrary to s.344 of the Criminal Code and one count of face masked with intent to commit an indictable offence contrary to s.351(2) of the Criminal Code (Information #44408618). Both of these offences occurred at the same time and the offences can fairly be characterized as arising from the same transaction. [ 2 ] The facts pertaining to this matter are not in dispute.

At approximately 8:35 p.m. on October 5, 2014, three males and K.S.V. entered Greg’s Grocery with their faces masked. The victim, Vijay Patel, was in the back

section of the store when these four individuals entered the store. The victim then approached the front of the store, and he could see what he believed to be three males and a female who all had their faces mostly covered. While some of the males were wearing balaclavas, K.S.V. simply pulled her hoodie over her face. One of the males, an adult, removed his mask, approached the victim, and brandished an imitation/BB gun. The victim was then brought over to the till where he was instructed to open it so he did so.

At one point during the robbery, the adult co-accused held the gun to the victim’s head and was making threats to him. Various items were stolen during the robbery including cigarettes, confectionary items, scratch and win tickets and cash valued at $3,859.40. Many of these items were taken by the youth co-accused, C.M., while the adult co-accused, Keegan Bird, held the gun to the victim’s head. K.S.V. took a slurpee and a box of cookies from the store. [ 3 ] There are a number of other pertinent post-offence facts. First, when the police investigated this matter, K.S.V. was highly cooperative with them.

In fact, she readily admitted to her involvement in these offences and gave the police information pertaining to the other individuals involved in these crimes, including information implicating her boyfriend, C.M. It should be noted that C.M. was also cooperative with the police. Although he did not give the authorities information concerning the other co-accused, he did admit to his involvement in these crimes.

Second, on November 26, 2014, C.M. entered guilty pleas to one count of robbery and one count of face masked with intent to commit an indictable offence, which dealt with the October 5, 2014 incident at Greg’s Grocery, as well as one count of uttering threats and one count of failure to comply with a youth justice court sentence. These latter two offences were matters that were separate in time from the offences that were committed on October 5, 2014.

Despite having served 24 days in pre-sentence custody, C.M. received a global disposition consisting of a further 12 month open custody and supervision order. [ 4 ] Impact on the victim of the robbery was assessed through contact with him by a community youth worker shortly after the offence and by way of a Victim Impact Statement written by the victim on February 3, 2015. Shortly after the offence, the victim stated to the community youth worker that “he was frightened at the time of the offence and now is highly anxious when left alone while at work; especially at night.

He feels fear now at times and is hoping that soon dissipates with time.” The following remarks were made by the victim in his later Victim Impact Statement: Right now I am feeling ok but yet scared . . . my regular life is good but sometimes feels unsecured and sometimes unsafe . . . I lock the door of store also in the afternoon times especially when I am alone. Every time I go to work, I pray to God that my day goes well with no such incidence again. Sometimes feels suspicious with regular customer also. [ 5 ] The Pre-sentence Report reveals a number of relevant facts concerning K.S.V.

She is a 16 year old youth who resides with her mother and two siblings. Although she has had no contact with her biological father for the past few years, K.S.V. has a positive relationship with her other family members. In particular, her maternal grandparents are positive influences in her life. K.S.V. respects and listens to both her grandparents, and she usually sees them a couple of times a month as they do not live in Saskatoon. In addition, K.S.V. has numerous aunts and uncles who act as positive supports to her.

She does not have family members who are in conflict with the law or who possess criminal records (with the exception of her father). K.S.V. is doing fairly well in school. Specifically, she is maintaining regular attendance and she is currently passing all of her classes. It is clear that K.S.V. has a love of, and aptitude for, art. Her goal for the future is to become a tattoo artist. Although K.S.V. has had no prior involvement with the criminal justice system, she acknowledges spending most of her time with a friend who is in trouble with the law.

Furthermore, K.S.V. has maintained “relationship status” with her boyfriend/co-accused who is currently in custody. She denies having any contact with him since their arrest, but she has expressed her intention to continue the relationship once the legal matters are concluded and she is no longer bound by a no-contact condition. K.S.V. admits to having some issues with drug use, but this situation seems to have improved somewhat over the past few months. K.S.V. identifies as Metis, and she notes that her father is from the Aktakakoop First Nation.

K.S.V.’s mother states that K.S.V.’s father struggled with addictions issues, which contributed to the breakdown of their marriage. It does not appear as if any of the other Gladue factors apply in terms of K.S.V.’s circumstances. Finally, K.S.V. has been supervised on the JIR program since November 6, 2014. K.S.V. has not incurred any new charges, and she has been compliant while on her Undertaking. She has reported regularly, and she has been open and willing to engage in her case plan.

SUBMISSIONS ON SENTENCE [ 6 ] Crown counsel began her submissions by indicating that K.S.V.’s crimes, in particular the robbery, were violent offences and

that it was therefore open to the court to commit the young person to custody under s.39(1)(

a) of the Youth Criminal Justice Act (YCJA).Crown counsel indicated that the robbery committed by K.S.V. caused the victim bodily harm. Specifically it was contended that thisbodily harm was psychological in nature. Crown counsel also alluded to the fact that this offence endangered the life or safety of anotherperson by creating a substantial likelihood of causing bodily harm. In support of the latter assertion, Crown counsel cited R. v.Ahenakew, 2001 SKCA 117 , [2001] S.J. No. 695 (Sask.

C.A.) (QL) at para. 7 for the proposition that, “Armed robberyinvolves an inherent danger to human life because escalation of violence toward the victim or lawful resistance by the victim to an attackcan easily result in death or bodily harm.” [7] The availability of a deferred custody and supervision order was also dealt with by Crown counsel. She asserted that this type ofsentence was not available pursuant to s.42(5)(

a) of the YCJA as the robbery was an offence in which the young person caused orattempted to cause serious bodily harm. Alternatively, if the court held that K.S.V. did not cause or attempt to cause serious bodily harm,Crown counsel submitted that, pursuant to s.42(5)(

b) of the YCJA, to make a deferred custody and supervision order in the circumstancesof this case would not be consistent with the purpose and principles set out in

section 38 of the YCJA. [8] To bolster the former assertion, Crown counsel relied upon the definition of “serious bodily harm” adopted by the SupremeCourt of Canada in R. v. D.(C.), 2005 SCC 78.

In para. 20 of this case, Cory J. held that “serious bodily harm” is “any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant.” I see no reason why this definition of “serious bodily harm” should not also be used for purposes of the YCJA, and, in particular, for purposes of the definition of “serious violent offence” that is found in s.2(1) of the Act. [9] Under the YCJA as originally enacted, there was a process for having certain offences designated as serious violent offences, andthe Supreme Court in D.(C.) interpreted the meaning of “serious bodily harm” in the context of this process.

Section 2 of the YCJA, as itwas originally enacted, defined a “serious violent offence” to mean “an offence in the commission of which a young person causes orattempts to cause serious bodily harm.” If the court designated an offence as a “serious violent offence,” a deferred custody andsupervision order could not be imposed.

Moreover, if there was a finding of guilt for a third offence that was designated a “seriousviolent offence,” the court could impose an intensive rehabilitative custody and supervision order, but such an order required that theprior two serious violent offence determinations were made at the time of sentencing for those offences. A third serious violent offencewas also significant for the concept of the “presumptive sentence,” an offence for which there was a presumption that an adult sentencewould be imposed. This presumptive adult sentencing scheme was later ruled unconstitutional by the Supreme Court in R. v.

D.B., 2008SCC 25. [10] Although the 2012 amendments to the YCJA abolish the process for designation of offences as serious violent offences, theamendments still preclude use of a deferred custody and supervision order for a young person found guilty of an offence in which theyouth “causes or attempts to cause serious bodily harm,” and Crown counsel submitted that the caselaw interpreting the phrase “seriousbodily harm” in the context of the old version of the YCJA remains determinative today.

In other words, it was Crown counsel’s positionthat because the old definition of “serious violent offence” was based on the concept of the offence causing serious bodily harm, thecaselaw interpreting the meaning of “serious bodily harm,” including the Supreme Court’s decision in D.(C.), remains relevant whenassessing the meaning of “serious bodily harm” in the context of the post-2012 amendment version of the YCJA. [11] Applying the definition of “serious bodily harm” articulated by the Supreme Court in D.(C.) to the facts of the robbery committedby K.S.V., Crown counsel pointed out that almost four months after the incident, the victim of the robbery was experiencing persistingfear and suspicion as well as feelings of insecurity and concerns about his personal safety.

Consequently, the court was urged to find thatthe psychological injury suffered by the victim as a result of the robbery interfered in a substantial way with his psychological integrity,health or well-being. [12] To buttress the argument that the psychological injury inflicted by K.S.V. and her co-accused on the victim constituted seriousbodily harm, Crown counsel cited R. v. H.(F.), [2005] O.J. No. 2233 (Ontario Court of Justice) (QL), a case involving a robbery that wasfactually similar to the one committed by K.S.V. and her co-accused. In H.(F.), a Victim Impact Statement was filed with the court.

Inthe Victim Impact Statement, the victim recounted that he experienced persisting fears and disturbing thoughts concerning the robberyfor many weeks after the incident. In H.(F.), Livingstone J. held that the robbery caused the complainant serious bodily harm byinterfering in a substantial way with his psychological health, well-being and integrity.

Consequently, the court imposed a serious violentoffence designation. [13] If the court held that the robbery committed by K.S.V. did not cause the victim serious bodily harm, Crown counsel asserted thata deferred custody and supervision order was still not available for the young person as K.S.V. attempted to cause the victim seriousbodily harm. Nevertheless, it should be noted that Crown counsel did not point to any direct evidence that the youth intended to causethe victim serious bodily harm.

Crown counsel did refer to the many aggravating factors present in this case, particularly the fact that animitation firearm was used and pointed to the head of the victim, the offenders were all masked, the robbery was committed by a groupof individuals, overt threats were made to the victim, and the victim, being the sole employee on duty at night at a convenience storewhen this incident occurred, was a member of a vulnerable group, as constituting strong circumstantial evidence that K.S.V. intended tocause serious psychological harm to the victim. [14] These aggravating factors were utilized by Crown counsel to argue that even if a deferred custody and supervision order wasavailable to be imposed by the court because the Crown failed to establish beyond a reasonable doubt that serious bodily harm wascaused or attempted to be caused by K.S.V., such an order would be inappropriate.

Crown counsel, relying on many of the sentencing

principles recognized in s.38 of the YCJA , submitted that a custody and supervision order was the least restrictive sentence that would simultaneously hold K.S.V. sufficiently accountable, promote a sense of responsibility in her, acknowledge the harm done to her victim, and promote her rehabilitation and reintegration into society. Furthermore, Crown counsel indicated that the degree of participation by K.S.V. in the commission of the robbery was similar to that of C.M.

It was asserted that these youths were not the ring leaders of the group that committed these offences and neither of these youths handled the imitation firearm, but both youths were active participants in the robbery. Crown counsel then cited the parity principle of sentencing recognized in s.38(2)(

b) of the YCJA , the proportionality principle in s.38(2)(

c) of the YCJA , as well as the principles of denunciation and specific deterrence in s.38(2)(

f) of the YCJA , and she indicated that all of these principles required that K.S.V. be given a sentence identical to the one meted out to C.M. – a further 12 month open custody and supervision order. [ 15 ] Defence counsel began her submissions by submitting that sentencing under the YCJA requires the court to balance a number of principles, including proportionality, denunciation, deterrence, and rehabilitation of the young person. Defence counsel further asserted that none of these principles is to be accorded more weight or importance in the youth sentencing process than the others. Nevertheless, she did assert that s.3(1)(

b) of the YCJA requires sentencing judges to be mindful of the principle of diminished moral blameworthiness of young people and, to the extent that fair and proportionate accountability must be emphasized, this accountability must also be consistent with the greater dependency of young persons and their reduced level of maturity. [ 16 ] Counsel for K.S.V. then turned her attention to s.38(3)(

a) of the YCJA , which requires the youth justice court, in determining a youth sentence, to take into account the degree of participation by the young person in the commission of the offence. It was submitted that K.S.V.’s role in the robbery was less serious than the role played by her youth co-accused, C.M. Specifically, it was asserted that, during the robbery, C.M. was physically closer to the victim than was K.S.V.

Moreover, it was pointed out that while the adult co- accused held an imitation gun to the head of the victim, C.M. loaded up many items in a large cloth bag whereas K.S. simply took a slurpee and a box of cookies from the store. [ 17 ] In terms of the parity principle of sentencing, defence counsel submitted that disparity in sentencing was warranted vis-à-vis C.M. and K.S.V. because of a number of factors. In addition to the lesser role played by K.S.V. in the robbery, defence counsel noted that C.M. received a global disposition that included two offences that were separate in time from the robbery.

Moreover, while K.S.V. comes to the court as a first offender, at the time C.M. committed the robbery he was on a 12 month probation order made in September 2014 as a result of findings of guilt pertaining to one count of simple possession of drugs under the Controlled Drugs and Substances Act , one count of possession of an unauthorized firearm under the Criminal Code , as well as one count of failing to comply with an Undertaking, and one count of failing to attend in court when required to do so.

Consequently, it was asserted that C.M.’s past record distinguishes him from K.S.V. and that this difference should be reflected in a less punitive sentence for K.S.V. [ 18 ] Defence counsel stated that the Crown’s position on sentence already acknowledges, to a certain extent, that C.M. and K.S.V. should be treated differently. Although Crown counsel submitted that K.S.V. should receive, as did C.M., a sentence consisting of a further 12 month open custody and supervision order, it was noted that C.M. spent 24 days in presentence custody whereas K.S.V. only spent 7 days in presentence custody.

Nevertheless, defence counsel contended that a further difference in sentence was warranted in the case of K.S.V. [ 19 ] Indeed, defence counsel submitted that there are a number of reasons why an appropriate disposition for K.S.V. would consist of a community-based sentence. Such a sentence may include either a deferred custody and supervision order or a probation order (defence counsel conceded that the robbery constituted a violent offence, which opens the gateway to custody allowing for the imposition of a deferred custody and supervision order).

Defence counsel noted the mitigating circumstances in this case, including K.S.V.’s extensive cooperation with the authorities. In addition, it was submitted that K.S.V. has strong rehabilitative potential as evidenced by her progress in attending and succeeding in school, her establishment of longer term vocational plans, her reduced levels of drug consumption, and her significant family support. Finally, it was observed that K.S.V. has successfully complied with fairly stringent conditions imposed by her Undertaking for the past 4 months.

Defence counsel contended that K.S.V.’s compliance with court-ordered conditions suggests that public protection does not require that she be placed into custody.

Indeed, it was suggested that community-based rehabilitative programming has a much more likely chance of success than does rehabilitative programming imposed in a custodial environment and that the long term protection of society is best served by the rehabilitation and reintegration of K.S.V. [ 20 ] Turning to the form that a community-based sentence may take in this case, defence counsel indicated that a deferred custody and supervision order is available. Defence counsel agreed with Crown counsel that the D.(C.) definition of “serious bodily harm” should continue to apply to the post-2012 amendment YCJA .

However, defence counsel asserted that serious bodily harm was not caused to the victim of K.S.V.’s robbery. Defence counsel emphasized the fact that in his later Victim Impact Statement, the victim indicated that “Right now I am feeling OK” and “My regular life is good[.]” Although defence counsel acknowledged that the effects of the robbery on the victim demonstrate a lingering psychological harm to the victim, it was asserted that this harm does not rise to the level of serious bodily harm. In support of this position, defence counsel cited R. v.

D.N. , 2007 ABCA 370 , a case in which the court held that apprehensiveness that lingers for a few days after an incident does not constitute the type of psychological injury that comes within the ambit of serious bodily harm. [ 21 ] Moreover, defence counsel also took the position that K.S.V. did not attempt to cause the victim of the robbery serious bodily harm and that, therefore, a deferred custody and supervision order was still an option. Counsel cited R. v.

V.J.T. , 2007 MBCA 45 at para. 29 for the proposition that The ability to prove an attempt requires the Crown to provide sufficient evidence so that the court may draw an inference as to the accused’s intentions. The cases dealing with attempts focus on the intention of the offender as can be inferred from the evidence, both subjective evidence from the words of the accused and objective evidence from his conduct rather than on the actual injuries suffered by the victim.

Defence counsel submitted that K.S.V. did not intend to cause the victim serious psychological harm and, as a result, she did not attempt to cause him serious bodily harm.

To bolster this argument, defence counsel cited para. 24 of V.J.T. where the court explicitly stated, “an intention to intimidate or frighten cannot be substituted for the requisite intention to cause serious bodily harm.” To the extent that K.S.V. had an intention in mind when engaging in the robbery, it was asserted that this intention was to intimidate or frighten the victim not to cause him serious bodily harm by interfering in a substantial way with his psychological integrity. [ 22 ] Defence counsel also alluded to an argument that might allow the court to exercise its discretion to make a deferred custody and supervision order even though the court holds that the young person is guilty of an offence in the commission of which she causes or attempts to cause serious bodily harm.

Defence counsel noted that in para. 25 of V.J.T. , the court observed that in the case of an offence committed by a group of offenders, “the degree of participation of the young person may affect the exercise of the court’s discretion . . . in weighing a serious violent offence designation application.” The implication of this argument is that even if K.S.V. caused or attempted to cause the victim serious bodily harm, her more limited degree of participation in the robbery vis-à-vis the other members of the group could allow the court to impose a deferred custody and supervision order. [ 23 ] Nevertheless, defence counsel’s ultimate position was that regardless of the availability of a deferred custody and supervision order, the appropriate disposition of this matter was a sentence consisting of probation.

In support of this position, defence counsel cited the following two decisions: R. v. J.C., 2010 SKPC 113 , and R. v. K.I. , 2011 MBCA 11 . J.C. involved an aggravated assault that resulted in the victim being permanently disfigured by losing an eye. J.C. had a supportive, close-knit family and came before the court with no history of criminal offending. Despite the lasting physical injuries caused by him, J.C. received a sentence consisting of probation for a period of 18 months. K.I. involved a robbery committed by K.I., and his older brother, who was also a youth.

The brothers entered a gas station wearing Halloween masks and neck warmers and were armed with knives. K.I.’s brother demanded money, and the clerk complied. The two youths were arrested minutes later. K.I. had no record, and he was sentenced to supervised probation with conditions for one year. [ 24 ] Defence counsel acknowledged that the sentence imposed upon K.S.V. must hold her accountable.

She submits that a 12 month probation order with the following conditions would suffice to hold the young person accountable while simultaneously promoting her rehabilitation and reintegration into society: that K.S.V. be required to complete 80 hours of community service work, that she maintain a residence approved by her probation officer, that she abide by a curfew of 10pm-7am each day for the first six months of the order, that she present herself on demand at the door of the approved residence to any peace officer checking on her residence/curfew, that she attend school, that she attend for/participate in any assessments, counselling and/or treatment as directed by her probation officer including personal counselling and counseling and/or treatment for drug and alcohol addictions.

DECISION [ 25 ] A considerable amount of time was spent by counsel on the issue of whether or not a deferred custody and supervision order was available in this case. Section 42(5)(

b) of the YCJA makes clear that such an order is only available if a custodial sentence could be imposed under s.39(1) of the Act. One of the s.39(1) “gateways” to a possible custody sentence is if the young person committed a violent offence. Both Crown and defence counsel agree that the robbery committed by K.S.V. and her co-accused constitutes a violent offence.

Indeed, I conclude that the robbery is a violent offence within the meaning of s.2 of the YCJA in that it is “an offence committed by a young person that includes as an element the causing of bodily harm.” It is clear and agreed upon that the psychological harm to the victim caused by the robbery meets the definition of bodily harm contained in s.2 of the Criminal Code , which states “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[.]” [ 26 ] However, even if the robbery constitutes a violent offence allowing for a custody sentence, which includes a deferred custody and supervision order, a deferred custody and supervision order may be precluded pursuant to s.42(5)(

a) of the YCJA if, in committing the robbery, K.S.V. caused or attempted to cause the victim “serious bodily harm[.]” The phrase “serious bodily harm” is not defined in either the YCJA or the Criminal Code . Crown and defence counsel agreed that the

interpretation of this phrase by the Supreme Court of Canada in D.(C.) in relation to the originally enacted version of the YCJA should apply to the post-2012 amendment version of the YCJA. [ 27 ] Although I agree that the definition of this phrase provided by the Supreme Court in D.(C.) should continue to apply to the post- 2012 amendment version of the YCJA , I do not agree that all of the jurisprudence pertaining to “serious violent offences” in the YCJA as originally enacted remains relevant to the post-2012 amendment version of the YCJA.

Specifically, defence counsel cited V.J.T. for the proposition that, in the case of an offence committed by a group of offenders, the degree of participation of the young person may affect the exercise of the court’s discretion in making a serious violent offence designation. There may have been good reasons to retain an element of judicial discretion in making such designations even when the offence in question caused, or involved an attempt to cause, serious bodily harm.

It must be recalled that in addition to precluding a deferred custody and supervision order, the making of a serious violent offence designation under the originally enacted version of the YCJA could have led to a presumptive adult sentence for some youth and could have also made some youth liable to a sentence of intensive rehabilitative custody. Given all of these serious consequences, the retention of judicial discretion in designating an offence as a serious violent offence despite the fact that serious bodily harm was caused or was attempted to have been caused seems prudent.

However, the post-2012 amendments to the YCJA have abolished the serious violent offence designation process and youth no longer face presumptive adult sentences. Consequently, now the rationale to retain a measure of judicial discretion to impose a deferred custody and supervision order if a young person has committed an offence involving causing or attempting to cause serious bodily harm is weaker.

Indeed, it is my view that once a court has concluded that a young person has committed such an offence, a judge does not have the power to impose a deferred custody and supervision order. [ 28 ] Was the robbery committed by K.S.V. and her co-accused an offence in the commission of which bodily harm was caused or attempted to have been caused? The victim of this robbery continues to feel fear, as well as feelings of insecurity and suspicion, almost four months after the incident occurred, and these feelings have caused him to pray every time he goes to work that no similar incidents will occur.

The level of psychological injury incurred by this victim goes beyond the apprehensiveness that lingers for only a few days. K.S.V. and her co-accused committed a robbery that caused a psychological hurt or injury that interferes in a substantial way with the psychological integrity, health or well-being of the victim. As a result, K.S.V. has committed an offence resulting in serious bodily harm and the court is thereby precluded from considering making a deferred custody and supervision order.

[ 29 ] Although not required to do so for the purposes of assessing whether or not a deferred custody and supervision order is available, I have made findings of fact pertaining to whether or not K.S.V. intended to cause her victim the harm that was inflicted. I am not convinced beyond a reasonable doubt that she intended to cause her victim serious bodily harm. The evidence cited by the Crown is just as consistent with the notion that K.S.V.’s intention was to intimidate or frighten the victim to complying with the group’s demands.

I adopt the view espoused by the court in V.J.T. that an intention to intimidate or frighten cannot be substituted for the intention to cause serious bodily harm. Moreover, it is my view that the court in V.J.T. is also correct in its ruling that an attempt to cause serious bodily harm requires the intention of the offender to cause serious bodily harm. [ 30 ] My finding that the Crown has failed to satisfy me beyond a reasonable doubt concerning the intention of K.S.V. to bring about the serious psychological harm caused in this case remains relevant in terms of s.38(3)(

b) of the YCJA . I note that in relation to this provision of the legislation, that in determining a youth sentence, a youth justice court shall take into account, among other things, the harm done to victims and whether it was intentional or reasonably foreseeable. Despite the fact that I have not been satisfied beyond a reasonable doubt that K.S.V. intended to cause the harm that was inflicted, I am satisfied beyond a reasonable doubt that the harm inflicted was reasonably foreseeable.

It must be reasonably foreseeable that serious psychological harm could occur when one engages in a masked robbery involving an imitation firearm that is brandished and/or pointed at the victim. [ 31 ] Simply because custody could be ordered in relation to a young person and a deferred custody and supervision order is precluded from being made, it does not mean that the youth justice court necessarily should impose a custody and supervision order.

Indeed, s.39(2) of the YCJA states that even when the gateway to custody is open, a custodial sentence shall not be imposed unless the court has considered all alternatives to custody that are reasonable in the circumstances and unless the court has determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in s.38.

Thus defence counsel’s submission that the appropriate sentence for K.S.V. consists of a probation order may be found to have merit if the resulting sentence is in accordance with the purpose and principles set out in s.38. [ 32 ] If the court were tasked with crafting a youth sentence that best promoted the rehabilitation of the young person, or if the YCJA allowed for an unprioritized balancing of the sentencing principles contained within s.38, defence counsel’s submission as to an appropriate disposition of this matter may have been endorsed by this court.

For serious offences such as robbery with an imitation firearm, sections 38(2)(c), (e), and (

f) of the YCJA suggest that proportionate accountability, albeit accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, may take priority over concerns about rehabilitation. While ss.3 and 38 of the YCJA make clear that proportionality is not the only engine that drives youth sentencing, proportionality is an important youth sentencing principle that will not easily be wholly displaced by rehabilitative and reintegrative concerns.

As noted in one of the treatises on Canada’s juvenile justice legislative regime, While the objective of rehabilitation in s.38(2)(e)(ii) is clearly important, that provision states that achieving rehabilitative goals is “subject to” the proportionality principle of section 38(2)(c).

The centrality of proportionality reinforces the statement in section 38(1) that the purpose of youth sentencing is to hold young persons “accountable” for their criminal acts. (Nicholas Bala & Sanjeev Anand, Youth Criminal Justice Law , 3d ed. (Irwin Law, Toronto, 2012) at 510.) Thus, the Act clearly creates a hierarchy among the sentencing principles it recognizes, with proportionality at the top of that hierarchy. [ 33 ] Of course, proportionality requires the court to assess both the seriousness of the offence and the degree of responsibility of the young person for that offence.

I accept that K.S.V. was not the ring leader of the group that robbed the victim, but I also find that her degree of responsibility for the offence was similar in nature to that of C.M. Both of these youths followed their adult co-accused in this venture, both were active participants who knew that a robbery was going to take place, both donned masks, and both took items from the store while their adult co-accused pointed an imitation firearm at the victim.

The fact that C.M. was closer in physical proximity to the victim during the robbery than was K.S.V. is largely irrelevant in terms of assessing their comparative responsibilities or degrees of participation for the offence. [ 34 ] Defence counsel cited two decisions involving serious offences committed by youths who bore significant responsibility for their offences and yet received sentences of probation. In J.C. , the court was dealing with a young man found guilty of an aggravated assault that resulted in the victim losing an eye.

J.C. came before the court with no history of criminal offending and a family that was nurturing and supportive. The incident that resulted in the aggravated assault consisted of one blow struck by the young person who used a glass jar to hit the victim on the side of the head. There is no indication that the assault was planned in any way. The lack of planning serves to distinguish this case from the robbery committed by K.S.V. and her co-accused.

Moreover, the court, in imposing the probationary sentence for the youth in J.C. , indicated at para.36 of the judgment that while a custodial sentence would provide an expression of denunciation for the grave harm done to the victim and address the principle of deterrence, these principles are not proper considerations in assessing a fit disposition for a youth.

While these principles should not have been considered under the YCJA as originally enacted, the 2012 amendments to the YCJA make clear that the principles of denunciation and specific deterrence are properly considered in K.S.V.’s case. [ 35 ] The other decision cited by defence counsel in support of the propriety of meting out a probationary term for a serious offence under the YCJA is K.I. In this case, the young person did receive a probationary term for the armed robbery of a gas station attendant.

However, it must be noted that the Manitoba Court of Appeal never ruled on the fitness of this sentence, as the matter was appealed to that court by the young person, and he only appealed the finding of the sentencing judge that the robbery be designated a serious violent offence.

Because there was no evidence of any physical injuries to the victim, and because there was no evidence in the form of a Victim Impact Statement or otherwise attesting to the offence having caused any psychological harm to the victim, the Court of Appeal allowed the defence appeal and overturned the sentencing judge’s designation of this offence as a serious violent offence.

[ 36 ] I find myself in agreement with Crown counsel that K.S.V.’s case calls for the imposition of a custody and supervision order. I am not satisfied that alternatives to custody are reasonable and adequate in the circumstances to hold the young person accountable for these particular offences or that they would have meaningful consequences for her in the context of the crimes committed.

In addition, I am not satisfied that simply imposing a probationary term, or other available non-custodial sentences, would be consistent with the principles of denunciation and specific deterrence even when one keeps in mind that those principles, just as is the case with the principle of rehabilitation, are circumscribed and limited by the principle of proportionality, albeit a proportionality principle that is modified to take into account the reduced moral blameworthiness of young persons.

The circumstances of this offence, in particular the aggravating factors mentioned by the Crown, are so serious, and the degree of responsibility borne by the young person is sufficiently high, that nothing less than a sentence that incorporates a custody and supervision order will suffice. This is true despite the many indicators of K.S.V.’s strong rehabilitative potential and the mitigating factors cited to the court by defence counsel. [ 37 ] In determining the length of the custody and supervision order that would be appropriate in this case, the parity principle recognized by s.38(2)(

b) has a significant, albeit not determinative, role to play. Although I have found that K.S.V.’s degree of participation in the robbery was similar to that of C.M., there are a number of reasons that a disparate treatment of these two offenders is justified. First, the lack of any previous findings of guilt on the part of K.S.V. is a significant mitigating factor that could not have been relied upon by C.M. Second, K.S.V. cooperated with the police to a much greater extent than did C.M.

While K.S.V. admitted to the crimes she committed, as did C.M., K.S.V. went further and identified the other perpetrators of the robbery to the police. Third, C.M.’s global disposition in relation to the October 5, 2014 offences also included one count of uttering threats and one count of failure to comply with a youth justice court sentence, and these two offences were separate in time from the offences committed on October 5, 2014.

Despite the fact that C.M. spent a significantly longer period of time in pre-sentence custody than did K.S.V., the length of the custody and supervision order imposed upon K.S.V. should be significantly shorter than the one imposed upon C.M. [ 38 ] Further buttressing this conclusion is the fact that K.S.V. has demonstrated that she is able to comply with orders of the youth justice court when she is out in the community – something that C.M., with his prior record, could not establish.

The fact that K.S.V. has shown a willingness and ability to comply with court orders while she is in the community gives the court options that it did not have when dealing with C.M. [ 39 ] Thus, while the parity principle may require some equivalence in the punitiveness of the sentences meted out by this court upon K.S.V. and C.M., this rough equivalence, adjusted appropriately for the factors that justify disparate treatment of these two offenders, can be achieved through the imposition of a much shorter custody and supervision order upon K.S.V. if such an order is followed by a lengthy period of probation.

Although this latter order cannot have punishment as its dominant purpose, as probation orders are designed to rehabilitate offenders, it must be recognized that probation, through its curtailment of the liberty of an offender, often has a punitive aspect or impact. [ 40 ] Consequently, an appropriate sentence for K.S.V. in relation to the crimes to which she has pled guilty would consist of a custody and supervision order of relatively short duration followed by a lengthy probation order.

This global disposition best reflects the many sentencing principles of the YCJA , including rehabilitation and the need to use the least restrictive sentence capable of achieving the purposes of youth sentencing, and the manner in which all of the sentencing principles are embodied within the Act . ORDER [ 41 ] In imposing the appropriate global sentence in this matter, I am taking into account the fact that K.S.V. has spent 7 days in pre- sentence custody and I am crediting her with the equivalent of having already served 11 days of a secure custody and supervision order.

In addition to the pre-sentence custody she has served, I am sentencing K.S.V. to an additional 3 month open custody and supervision order followed by 18 months of probation. The probation order will contain the following conditions: 1. Keep the peace and be of good behavior; 2. Appear before the youth justice court when required to do so by the Court; 3. Within 48 hours of the expiration of the open custody and supervision order, report to a probation officer and thereafter at the times and places as directed by the probation officer; 4.

Reside at a residence approved by the probation officer and not change that address without the express permission of the probation officer; 5. Abide by a curfew of 10 p.m. to 7 a.m. each day and present yourself on demand at the door of the approved residence to any peace officer or probation officer checking on the curfew or residency; 6. Shall have no contact directly or indirectly with C.M., Keegan Bird, and Vijay Patel; 7. Shall attend school, employment or a day program as directed by your probation officer; 8.

Shall attend and participate in assessments, counselling and treatment including, but not limited to, addictions, personal, psychological, or psychiatric counselling as directed by the probation officer and not give cause to be discharged early from any treatment program to which you are referred; 9. Perform 100 hours of community service work at the direction and to the satisfaction of your probation officer before the expiration of the probation order; and 10.

Not possess any weapons as defined by the Criminal Code . [ 42 ] Pursuant to s.487.051 of the Criminal Code , robbery is considered a primary designated offence and the provision of a DNA sample is mandatory for a young person found guilty of such an offence. Therefore, I am ordering that K.S.V. provide a sample of her

DNA to be included in the DNA Data Bank forthwith. [ 43 ] Pursuant to s.51(1) of the YCJA , a mandatory weapons prohibition order is required. Accordingly, K.S.V. is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance. This order commences today and ends two years after K.S.V. has completed the custodial portion of her sentence. [ 44 ] It should be noted that I have made it a condition of K.S.V.’s probation order that she not have contact with her co-accused or the victim of the robbery.

Although the robbery was committed by four individuals, I was only given information pertaining to two other members of the group and that is the reason for the no contact condition being limited to those individuals. Moreover, I am cognizant that K.S.V. will experience the no contact condition pertaining to C.M. as punitive.

Nevertheless the condition is not imposed for a punitive purpose but instead it is designed to assist in her rehabilitation. [ 45 ] Finally, although the Pre-sentence Report mentions that various items were stolen during the robbery and these items were, presumably, not recovered, the Crown has not specifically asked for a restitution order. Consequently, I refrain from making such an order in this case. __________________ S.S. Anand, PCJ