R. v. S.M., 2016 MBPC 7

RESTRICTION ON PUBLICATION Pursuant to the Criminal Code of Canada and/or the Youth Criminal Justice Act, there is a restriction on publication regarding this matter. CITATION: R. v. S.M. , 2016 MBPC 7 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Wendy Friesen and Ainslie Schroeder ) for the Crown ) and ) ) ) S.M. ) William Marks ) for the Accused ) ) ) ) Reasons for Decision delivered: ) February 4, 2016 CORRIN, P.J. THE CHARGES [ 1 ] S.M. has previously entered guilty pleas to a number of charges.

He is currently eighteen (18) years of age but was sixteen (16) at the time of the offences. The charges to which he entered pleas are: 1. Two counts of robbery with respect to an incident that took place on June 29, 2014; 2. Fail to comply with the condition of an undertaking involving a curfew breach with occurred on July 7, 2014; 3. House break with intent which occurred July 26, 2014; 4. Three counts of theft under $5000, all occurring on July 26, 2014; 5. Carry a concealed weapon also occurring on July 26, 2014; 6.

Failure to comply with the condition of an undertaking, a curfew breach occurring between February 10 and March 10, 2015; 7. Failure to comply with the condition of an undertaking involving a breach of a no contact order with a co-accused occurring on

March 10. 2015. A DESCRIPTION OF THE ROBBERY INCIDENT [2] S. M., who was sixteen (16) at the time of the robbery offences, had been apprehended by a Child and Family Services agencyand been removed from his long-term placement in a Winkler foster home in March, 2014. As a consequence of his apprehension, hewas removed from the City of Winkler and placed in a motel in the City of Winnipeg pending a more permanent placement. Whileresident at the motel, the accused met his two co-accused J.O. and Z.H. All three were then in Child and Family Services care.

The threehad all been placed at the same motel. [3] On the evening of June 29, 2014, the three (3) co-accused approached two (2) young men on the University of Manitoba campus, which was a short distance from their motel, and demanded that theysurrender their personal property. J.O. was armed with an air-soft rifle and Z. H. with a multi-tool pocket knife. J. O. struck one victimin the head with the rifle and Z. H. stabbed the same victim in the abdomen causing a laceration to his liver. The other victim was notattacked.

The injured victim was required to stay in hospital for several days for surgical intervention and observation. [4] It is the accused’s position that he did not expect that his group would be resorting to violence. According to S.M. the physicalattack upon the injured victim came as a surprise to him. He maintains that the three (3) had never discussed the actual employment ofviolence. However, S.M. also acknowledges that he was the first accused to approach the victims and make demands. He alsoacknowledged that he performed a search of the victims after they were attacked.

S.M. told Court that he had consumed meth - a potentillegal drug - prior to this incident. [5] The Crown has asked the Court for a custodial sentence with respect to the June 29, 2014 robbery charges. Both counsel agreethat all the other counts can be dealt with by way of a single probation order. The Crown has asked the Court to consider a three (3) yearmaximum youth sentence with respect to the two (2) robbery charges.

The Crown also recommended that the accused’s time in custodybe rounded off to one (1) year and credited on a one-to-one basis, because of subsequent bail breaches, leaving a two (2) year sentencegoing forward. The issue for this Court is the calculation of an appropriate, fit and proper quantum of sentence. YCJA SENTENCING PRINCIPLES [6] The pre-amble of the Youth Criminal Justice Act (YCJA) outlines that our society shares responsibility for addressing theneeds of young people. Accordingly, there is recognition of special guarantees of rights in relation to youth offenders.

Section 3 of theYCJA declares principles which suggest that youthful offenders are to be held accountable through the imposition of meaningfulconsequences for the offender and sanctions that promote his/her rehabilitation and re-integration into society.

The purpose ofaccountability in this context excludes the accountability to society in any larger sense or any notion of deterrence and is the equivalentof the adult sentencing principle of retribution being an objective, reasoned measured determination of an appropriate punishment whichproperly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harmcaused by the offender, and the normative character of the offender’s conduct.

The need to consider the normative character of anoffender’s behavior necessarily requires the Court to consider societal values. But the Court cannot add on to the youth sentence anelement of general deterrence or denunciation (see R. v.

O. (A.) (2007), 2007 ONCA 144 , 218 C.C.C. (3d) 409 O.N.C.A.) [7] The principles of sentencing that are set out in the YCJA as set out in s. 38(1) state that the purpose of youth sentencing is tohold a young person accountable for the offence or offences by imposing just sanctions that: a. have meaningful consequences for the young person; b. promote the young person’s rehabilitation and reintegration into society thereby contributing to the long-term protection of society [8] Section 38(2) sets out the following youth sentencing principles: a. the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult that has beenconvicted of the same offence committed in similar circumstances; b. the sentence must be similar to the sentences imposed in the region respecting young persons found guilty of the same offencecommitted in similar circumstances; c. the sentence must be proportionate to the seriousness of the offence and the young persons degree of responsibility for that offence; d. all available alternatives to custody that are reasonable in the circumstances should be considered; and e. subject to (

c) above; i. it must be the least restrictive sentence that is capable of achieving the purposes set out in s. 38(1); ii. it must be the sentence most likely to rehabilitate and reintegrate the young into society; iii. it must promote a sense of responsibility in the young person and an acknowledgement of the harm tothe victims and the community. [9] Section 38(3) then sets out the necessary factors for consideration in determining the sentence. They are:

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

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

c) Any reparation made by the young person to the victims or the community;

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

e) Previous findings of guilt against the young person; and

f) Any other aggravating and mitigating circumstances relevant to the purpose and principles of youth sentencing. [10]

Section 39 of the Act states that the Court must not impose a custodial sentence unless a young person falls under one of thefollowing categories:

a) Has committed a violent offence;

b) Has failed to comply with a non-custodial sentence;

c) The young person has committed an indictable offence for which an adult would be liable to imprisonment for term of more thantwo years and has a history that indicates a pattern of findings of guilt; or

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 s. 38. [11]

Section 39 also provides at subsection (2) that the Court must consider all alternatives to custody raised at the sentencinghearing that are reasonable in the circumstances and determine that no alternative or combination of alternatives would achieve thepurpose and principles of sentencing before imposing a custodial sentence. [12] Section 39(3) states that in determining whether there is a reasonable alternative to custody a Court must consider submissionsrelating 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/her compliance withprevious non-custodial sentences; and

c) The alternatives to custody that have used in respect to young persons for similar offences committed in similar circumstances. [13] Counsel and the Court all agree that the robbery charges involved sufficient degrees of violence such that the so-called custodygate is therefore open pursuant to s. 39(1).

Even when the custody gate is open, a sentencing judge must exhaust all his/her sentencingoptions before custody is imposed in recognition of the reduced maturity and social sophistication of young persons. [14] Amendments to the YCJA in 2012 permit, although do not mandate, the objectives of a youth sentence to now includedenunciation and specific deterrence, subject of course to the proportionality principle. Generally speaking, denunciation has a limitedrole in the sentencing of young persons.

While the Court can impose a sentence that is meaningful from a societal perspective and act tofoster respect for the judicial system, it would be an error in principle for it to impose a longer sentence than necessary simply todenounce an offender’s actions or simply to reflect society’s values in order to command the public’s respect for the administration ofjustice. As was said by Ontario Court of Justice OCJ, Cole, J. at paragraph 56 of R. v. A.(A.) 2009 CarswellOnt 4044: ...denunciation may be ‘read in’ so long as it is not used to increase the severity of a sentence.

In other words, the notion of denunciationcan be encompassed within the statutory concept of ‘accountability’, so long as it is not used to make a youth sentence more severe, asthat could (and likely would) offend the need to achieve ‘proportionality’ mentioned as several points in the YCJA, as well as the generalnotion of the need for restraint in the application of the bluntness of the criminal law power. [15] In paragraph 57, Cole, J. referred to the Manitoba Court of Appeal case of R. v. T. (C.)

(2005) M. J. No. 515, where Twaddle, J. specifically stated that denunciation does not necessarily involve a sentence ofincreased severity. PARITY [16] The Crown advised Court that J.O., a co-accused youth with an extensive criminal record, has been found eligible for an adultsentence at this point in time and is currently awaiting final disposition. Z.H., a co-accused individual with a limited prior youth record,was sentenced to three (3) year less a day, less time in custody, the maximum youth sentence allowable. No transcript containingreasons was provided to the Court in such regard.

At the time of the robberies, S.M., unlike either of the co-accused, had no criminalrecord whatsoever. Notwithstanding that the prosecution has asked that J. O. be sentenced to a similar length of sentence as the co-accused Z.H. in order to reflect the principle of parity. [17] As was stated by the Supreme Court of Canada in R. v. L.[M]., 2008 SCC 31 , 2008, 2 S.C.R. 163 at para 36: The principle of parity does not preclude disparity where warranted by the circumstances.

[18] Chartier, J.A. (as he then was) further amplified such observation in R. v. Rocha, 2009, MBCA 26 at para 60, where he stated as follows: The principle of parity cannot eclipse other relevant sentencing principles relating to the offender. [19] It is this Courts presumption that Chartier, J.A.’s remark has even more significance in a youth’s sentencing pursuant to theYCJA. GLADUE ANAYLIS [20] Parliament has expressed a requirement that particular attention be paid to the circumstances of Aboriginal offenders. Thisrequirement, expressed in s. 718.2(

e) of the Criminal Code of Canada was interpreted by the Supreme Court of Canada in 1999 in the decision of R. v. Gladue(1999) (SCC), 1 S.C.R. 688, noting the over-representation of Aboriginal people in our jails. The Court stated that thesentencing of Aboriginal offenders requires a different approach, one that is more individualized. The need for this kind of approach wasfurther reinforced by the Supreme Court of Canada’s more recent decision in R. v. Ipeelee

(2012) S.C.J. No. 13. [21] In Ipeelee, the Court states as follows at paragraphs 59 and 60: When sentencing an Aboriginal offender, a judge must consider:

a) The unique systemic or background factors which may have played a

part in bringing the Aboriginal offender before the Courts;and

b) The types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his/herAboriginal heritage or connection (Gladue, at para 66). Judges may take judicial notice of the broad systemic and background affectingAboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report(Gladue, at para. 83-84). Courts have at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people inCanadian society (see e.g. R. v.

Laliberte, 2000 SKCA 27, 189 SASK. R. 190). To be clear, Courts must take judicial notice as suchmatters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lowereducational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels ofincarceration for Aboriginal peoples. These matters on their own, do not necessary justify a different sentence for Aboriginal offenders.

Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. [22] The Court went on in Ipeelee to explain at paragraph 73 why the context in important: First, systemic and background factors may bear on the capability of the offender, to the extent that they shed light on his or her level ofmoral 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’s conduct”(Wells, at para. 38). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. ManyAboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options forpositive development. While this rarely – if ever – attains a level where one could properly say that their actions were not voluntary andtherefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.

AsGreckol, 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 thebackground factors that lead to Mr.

Skani coming before his Court “(f)ew mortals could withstand such a childhood in youth withoutbecoming 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 offence and the degree of responsibility of the offender. [23] Further, in paragraphs 74, the Court stated: 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, J. and Iacobucci, J. point out at para. 73 of Gladue: “What is importantto recognize is that, for many if not most Aboriginal offenders, the current concepts of sentencing are inappropriate because they havefrequently not responded to needs, experiences and perspectives of Aboriginal people or Aboriginal communities.” As the R.C.A.P.indicates, at p. 309, the “crushing failure” of the Canadian Criminal Justice system vis-a-vis Aboriginal peoples is due to “thefundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantivecontent of justice and the process of achieving justice.” The Gladue principles direct sentencing judges to abandon the presumption thatall offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentallydifferent world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particularcommunity. [24] The Supreme Court also addressed the notion of carving an exception from the individualized approach in the case of seriousoffences.

At paragraph 86, the Court cautioned strongly against the tariff approach in sentencing an Aboriginal offender for any offence,serious or otherwise: “...Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to“the relative ease with which a sentencing judge could deem any number of offences to be ‘serious’ ” (Pelletier, at p. 479). It would alsodeprive s. 781.2(

e) of much of its remedial power, given its focus on reducing over reliance on incarceration. A second question arises: who are Courts sentencing if not the offender standing in front of them? If the offender is Aboriginal, then Courts must consider all of

the circumstances of that offender, including the unique circumstances described in Gladue. There is no sense comparing the sentencethat a particular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive,because there is only one offender standing before the Court. SENTENCING RANGES [25] One of the more recent pronouncements on this issue is that of LeBel, J. in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206,where he stated (at para 44): The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [26] Steel, J.A. in R. v. McCowan, 2010 MBCA 45 wrote as follows on this subject (at para. 11) I believe it can be misleading to apply the range developed for “home invasion robberies” too rigidly without taking careful account ofthe nuances in the facts of each case.

Sentencing ranges are useful in promoting consistency and parity because they provide guidelinesto sentencing judges for the imposition of similar penalties for similar offences of a similar nature involving similar offenders. See R. v.McDonnell (T.E.), (SCC), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321. But they are nothingmore than guidelines and are certainly not conclusive of the appropriate sentence in any given case. The Supreme Court of Canadarecently confirmed this basic principle in R. v.

Nasogaluak (L.M.) (2010), 2010 SCC 6 , 398 N.R. 107; 474 A.R. 88; 479 W.A.C.88; 251 C.C.C. (3d) 293; 2010 SCC 6, when it repeated that a judge can order a sentence outside of a guideline range so long as it is inaccordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentencesis not necessarily unfit. See also, R. v.

Sinclair (W.J.) (2009), 2009 MBCA 91 , 245 Man.R. (2d) 237; 466 W.A.C. 237; 2009MBCA 91, at para. 6. [27] A judge can therefore order a sentence falling out of a guideline range so long as it is in accordance with the principles andobjectives of sentencing. EXCEPTIONAL CIRCUMSTANCES [28] In R. v.

Doherty, (1972) 9 C.C.C. (3d) 115, Gale, C.J.O. said the following about what constitutes exceptional circumstances inthe sentencing context: Each case must be considered in the light of its own circumstances and if those circumstances are extraordinary, or rare, and suggest thata jail sentence is not appropriate, then a jail sentence should not be imposed. (at page 117) [29] More recently, in R. v. Henderson (JA), 2012 MBCA 9, 275 ManR (2d) 168, the accused was convicted of impaired drivingcausing bodily harm.

The trial judge found exceptional circumstances, suspended the passing of sentence and imposed two yearsprobation. The Crown appealed. Hamilton, J.A., in dismissing the appeal, noted the difficulties in determining the nature of exceptionalcircumstances. She began (at para 46): The law continues to be as stated by Twaddle, JA, in Gutoski [(1990), (MB CA), 63 ManR (2d) 246 (CA)]. That is,a sentence for impaired driving cause bodily harm will be a jail sentence unless there are exceptional circumstances that permit the judgeto impose a non-incarceratory sentence.

Stating this principle is easier than ascertaining what are exceptional circumstances. [30] She later stated (at paras 55-56): There are many examples of cases where a judge, or an appeal court, states that “except in exceptional circumstances, a period ofincarceration is called for”, or words to similar effect. However, there is little guidance in the case law as to what constitutes exceptionalcircumstances. In R. v.

Steeves (C.E.) et al. (2005), 2005 NBCA 85 , 288 N.B.R. (2d) 1; 751 A.P.R. 1; 2005 NBCA 85, the New BrunswickCourt of Appeal wrote about exceptional circumstances in the context of sentencing for theft committed by a person in a position of trust,an offence for which general deterrence is also a paramount sentencing principle (at para, 1): It has long been the view of this Court and other Canadian appellate courts that the need for general deterrence must be met whensentencing an employee who stole from his or her employer and thereby abused a position of trust.

Absent “exceptional circumstances”,a fit sentence for an offence of this nature is one that features incarceration. While a finding of “exceptional circumstances” typicallyrests upon proof of mitigating factors that tend to lessen guilt or the seeming seriousness of the offence charged, the concept is elastic inmeaning and courts have wisely refrained from attempting to precisely delineate its reach. (emphasis added) [31] A quote from Michael Monnin, A.J. at paragraph 26 of the very recent case of R. v.

Tran, 2015 MBCA 120, a case I have reliedupon herein for most of my research, fully illustrates the broad number of possible considerations which may constitute exceptional

circumstances: Other cases have demonstrated that, while rehabilitation remains the most commonly articulated factor, appellate courts have referred tomany other considerations in the cocktail of factors. Depending on the facts, compliance with strict bail conditions, guilty pleas, co-operation with authorities, health issues, personal characteristics, family concerns, Gladue and Ipeelee considerations, etc, have all hadtheir role to play in the case law (R. v. Gladue, (SCC), [1999] 1 SCR 688; and R. v. Ipeelee, 2012 SCC 13, [2012] 1SCR 433). See R. v. Liparoti (O), 2011 ABCA 250, 513 AR 97; R. v.

Grammatikos (D), 2013 MBQB 44, 290 ManR (2d) 18; and R. v.Rockwell (S), 2012 MBQB 280, 285 ManR (2d) 290. [32] Monnin concludes his comprehensive analysis by concluding that his canvass of all such factors indicates that demonstratedrehabilitation over time might well be the factor which is most pervasively relied upon. THE ACCUSED’S BACKGROUND [33] S.M. is a permanent ward of Nisichawayasik Cree Nation. He was apprehended from his mother shortly after birth and from sixmonths of age resided in a foster home in Winkler, until March of 2014.

He had no criminal convictions prior to these offences. [34] S.M. only met his birth mother in the last year or so. He has begun to meet other family members with her assistance. [35] S.M.’s foster home placement was both caring and supportive. He was one of five children in the home, four of them adopted. His foster parents had one other biological child. A natural sister was one of the residents. However, two to three years ago, legal issuesarose that required his foster father to leave the home. S.M. was very close with his foster father and found this situation to be verystressful.

So much so that he became depressed and began using drugs. During this time period, S.M.’s relationship with his fostermother began to deteriorate to the point where they began to argue, often causing him to abscond from the residence overnight. Hebegan to skip school. When his father returned to the home, almost a year later, after his criminal charges were stayed, they were unableto recapture the relationship they once had.

Not long after, S.M.’s foster mother contacted Child and Family Services and asked that hebe removed. [36] After his departure from his foster home, S.M. was placed in emergency placements in Winnipeg. It was in one of these - amotel - where he lived alone and largely unsupervised, that he met his robbery co-accused, youth who were essentially in the samesituation as himself. S.M. related that his removal from Winkler and his family were disorienting and difficult.

He related that hebecame anxious, upset and angry about his circumstances and soon succumbed to these strong emotional undercurrents, allowing himselfto fall in with the other disaffected youths who were also left largely self-reliant in the motel. [37] S.M.’s application for judicial interim release was granted in January 2015. His bail conditions required that he reside with hisfoster brother T.B. in Morden. On February 10, 2015, T.B. advised Child and Family Services (CFS) that he no longer wished to care forand supervise S.M.

Rather than bringing him back into custody, his worker took him to Ndinawe, a shelter where he could stay untilCFS found him another placement. S.M. ran from Ndinawe shortly thereafter. When asked why he had done this, he revealed that hisexpulsion from T.B.’s residence had both hurt and angered him, as he believed the brother and his partner no longer wished to associatewith him. According to S.M., there had not been any prior discussion of the expulsion and he had been shocked to learn about it, notfrom his foster brother, but from his CFS worker. This was confirmed by his social worker, Mr.

Stanley Belanger. [38] T.B. reported that S.M. was non-compliant with many of the house rules, as well as some of the conditions of his bail release. [39] While AWOL from Ndinawe, S.M. lived with various persons and at several places. His time on the run was filled with a lot ofpartying and substance abuse. He did not however, re-involve in any substantive way. He was returned to custody in early March, 2015. [40] It is defence counsel’s position that S.M., now eighteen (18) years old, has matured considerably while in custody and is nowboth sincerely remorseful and apologetic for his past behavior.

The Court concluded the same after hearing S.M.’s personal submissionat the sentencing hearing. His behaviour at the Manitoba Youth Centre is now reported to be quite exemplary. To quote from thesupplemental PSR: “S. is high functioning and has displayed patience and mentorship when interacting with the more needy residents. S. has handled disruption in the unit with maturity and a sense of humor.

He is well liked by residents and staff; he has an easy goingnature and has not been a problem in terms of behaviour or attitude.” The PSR also disclosed that he has been attending Church andFellowship programming and completed various rehabilitative programs, including Victim Empathy Thinking Awareness Group, as wellas other programs.

He has also completed assigned work respecting alcohol and drug programming. [41] A major concern expressed in the second PSR is that S.M. has, over the last year, after the breakdown of his bail placement,progressed from marijuana use to more serious drugs - a situation that is thought to require residential rehabilitative treatment. S.M. nowrecognizes his drug dependency problem and informed Court that he wants to obtain such treatment as soon as possible. Court was toldthat his hope is to be able to return to his home community and re-involve with his foster family.

He and his foster brother T.B. haveresumed contact over the last several months and T.B. and his wife have advised Mr. Belanger and defence counsel of their willingnessto assist in such respect. S.M. has asked the Court to impose a sentence that will allow him to reside with T.B. AUTHORITIES RELIED UPON BY COUNSEL [42] Defence counsel submitted five cases, one being a decision I made in 2007. Being demure, I will refrain from discussing thiscase.

In my opinion, only two (2) of these cases merit discussion by me, as they both are Manitoba Court of Appeal decisions and assuch, are of high precedential value from a jurisprudential viewpoint. [43] The first case, R. v. B.(A.), 2012 MBCA 25, involved an appeal from a sentence of two years supervised probation imposed on ayoung person who was fifteen years old at the time of a robbery offence. The youth was determined to be intoxicated and armed with aknife. The victim, who was out walking her dog on the evening in question, was grabbed by her hair and notwithstanding that the victim

told the accused that she would give her money, the victim was stabbed twice causing cuts to her face and a four inch laceration to herneck. The victim was left with minor scarring and was emotionally traumatized. The Crown asked for a fifteen month custody andsupervision order and probation. The youth had three months of pre-sentence time in custody credit. The appeal Court varied thesentence to a nine month custody and supervision order, followed by probation, noting that a structured and gradual reintegration of theyoung person would best meet the principles of sentencing.

There was clear evidence before the Court that the youth, although initiallynon-compliant with release conditions, had “started to talk about and address ... issues” and was now “interested in obtainingcounselling.” [44] The second case, R. v. O.(K.), 2009 MBCA 13, involved a residential break and enter wherein an aggravated assault wascommitted. The sixteen year old youth, who was without a prior record, was enlisted by a friend who told him she had been abused bythe victim. The accused and a co-accused entered the victim’s residence armed with knives.

They had previously decided the kniveswould only be used for purposes of intimidation and the victim was only to be warned not assaulted. Once inside the house, the victimtook steps to physically defend himself and other family members. As a result, in the heat of the moment, a co-accused stabbed himseveral times. The accused got involved and in the course of the melee, stabbed the victim a single time, in his chest area. The victimsuffered what were described as “very serious physical and psychological injuries;” two collapsed lungs and scarring, as well asemotional traumatisation.

The evidence before the Court suggested that the accused’s experience with the criminal justice system waslikely sufficient to motivate him to avoid future involvement. The Crown asked the Court to revise sentence to one of two years followedby one year of community supervision, the maximum allowable under the YCJA.

Notwithstanding that the offence was recognized asvery serious because of the invasion of the victim’s home, the premeditated planning and the infliction of significant injury, the appealCourt stated that a fit and proper sentence “would have been one of four months’ open custody, less credit for pre-trial custody togetherwith two months’ community supervision and a period of two years’ supervised probation.” OTHER CASELAW [45] The Newfoundland Court of Appeal in R v.

A.H., 2011 NLCA 25, upheld a sentence of six months secure custody, three monthsopen custody, four and one-half months community supervision and twelve months probation, for a young offender who committed arobbery armed with a rifle. [46] In R. v. M.A.H., 2006 SKCA 114, a Saskatchewan case where a young offender had pled guilty to robbery of a pizza deliveryperson, a sentence of ninety days secure custody, forty-five days community supervision followed by one year probation was imposed bythe Saskatchewan Court of Appeal.

The young offender had an extensive criminal record and his pre-sentence report viewed him a highrisk to reoffend. [47] A probationary sentence, [2006] O.J. No. 716, was increased on appeal to a custody and supervision order of nine months,consisting of six (6) months’ open custody and three months’ community supervision, followed by six months’ probation in R. v. C.N., (ON CA), [2006] O.J. No, 3825 (Ont. C.A.). The young offender had pleaded guilty to aggravated assault. He andthree of his friends stalked another young person, caught him and repeatedly stabbed and slashed him with a box cutter.

The victimsuffered serious injuries. C.N. breached a recognizance while awaiting sentencing by damaging property and consuming alcohol. Hehad no criminal record, expressed remorse and had a strong work ethic. The Court noted the swarming nature of the incident was ofgreat concern to the community and that the young offender had been the ringleader of the group.

DECISION [48] I am of the view that S.M., now eighteen (18) years old, has benefitted from the time he has spent in custody, which was, as ofJanuary 13, 2016, some 415 days in total: including four days after his initial arrest from June 29 to July 2, 2014, 165 days from July 26,2014 to January 6, 2015, and 246 days from May 15, 2015 to January 13, 2016. [49] I have therefore decided that S.M. should be credited for all the time he has spent in custody.

Indeed, for this reason and alsobecause I believe the robbery incident was precipitated principally by the extreme and unnecessary stress that was associated with hisplacement in the Winnipeg motel, I have decided that his time in custody to date has been of sufficient length to stabilize S.M. and hasassured his preparedness to reintegrate back into society, subject to a period of supervised probation, which will address his rehabilitativeneeds. Such supervision and treatment will be as the experts described in their reports and for which defence counsel advocated.

It is theCourt’s view that such an approach will best meet the principles of youth sentencing. [50] The term of the supervised probation order is to be two years and is to be concurrent with respect to all counts before the Court.Conditions are to be as follows: 1. Keep the peace and be of good behaviour; 2. Report to probation within two working days after your release and thereafter as directed; 3. Report to the youth court if and when required to do so; 4.

Notify the provincial director or the youth worker assigned to your case, of any change of address or any change in your place ofeducation/training or employment within two days before implementing same; 5. Attend school or a job skills training program or place of employment that is appropriate to your interests and needs as a youngperson wanting to enter the work force as ordered by your supervising youth worker; 6. Reside a directed by the provincial director;

7. Attend, participate and satisfactorily complete any counselling and/or treatment programming as directed by your youth worker, specifically anger management; 8. Attend, participate and satisfactorily complete a substance abuse residential treatment program as directed and arranged by your youth worker; 9. Abstain from the consumption/possession of drugs and alcohol except in accordance with a current physician’s prescription. Your youth worker is to be advised of any such prescription within ten (10) days after it being filled; 10.

Attend and participate in activities that will promote a healthy lifestyle as directed by your youth worker; 11. Not possess any weapons except for the purpose of job training or employment; 12. No association, contact, or communication direct or indirect, with the co-accused (Z.H.), (J.O.), (L.B.), or (A.C.) except with the permission of the youth worker; 13.

For the first twelve (12) months after his release, to comply with any curfew ordered by your youth worker subject to your being able to be away from your residence during curfew hours if in the company of a parent or other adult approved by your youth worker or generally with the prior approval of your youth worker; 14. To perform fifty (50) hours of community service by the end of the eighteenth month of this order. [ 51 ] This Court further makes an order that you provide a sample of your DNA within thirty days hereafter. There will also be a weapons prohibition under

section 51 of the YCJA for a period of two years, which same will prohibit you from possessing any crossbow, weapons, ammunition, prohibited weapon, prohibited device or explosive substance. [ 52 ] A final word – by the time S.M. has served his full sentence, he will be twenty. He will have spent approximately 3.2 to 3.3 years under the control of the state. I am of the view that any sentence of this duration is reflective of a considerable amount of accountability and reflects his personal level of responsibility for his offending behaviour.

I am particularly mindful of the fact that the time S.M. has spent in custody is a long time in the life of a teenager and has represented painful consequences as a result. Original Signed by CORRIN, P.J.