R. v. S.A., 2014 MBPC 17

CITATION: R. v. S.A. , 2014 MBPC 17 Date: 20140425 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Alana Parashin, ) for the Crown ) and ) ) ) S.A. ) Sandra Bracken, Young Person ) for the Young Person ) ) ) Reasons for Decision delivered ) April 25, 2014 ) Restriction on Publication : This judgment is subject to s. 110(1) of the Youth Criminal Justice Act , S.C. 2002, c. 1 (“ YCJA ”), which prohibits the publication of any information that may identify a person as having been dealt with under the YCJA. Pullan P.J. I.

Background [ 1 ] S.A entered a plea of guilty to the following charge: that S.A. a young person within the meaning of the Youth Criminal Justice Act on or about the 16 th day of May in the year 2013 at the City of WINNIPEG in the Province of Manitoba did use a restricted firearm to wit Glock Model 22, .40 Calibre Handgun, in robbing Glamor Fernandez of Canadian currency contrary to

Section 344 (

a) of the Criminal Code of Canada . [ 2 ] The Crown applies for an order that S.A. is liable to an adult sentence pursuant to s. 64(1) of the Youth Criminal Justice Act , S.C. 2002, c. 1 ( YCJA) : 64(1) Application by Attorney General The Attorney General may, before evidence is called as to sentence or, if no evidence is called, before submissions are made as to sentence, make an application to the youth justice court for an order that a young person is liable to an adult sentence if the young person

is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years and that was committed after the young person attained the age of 14 years. [ 3 ] A hearing was held February 4 and March 3, 2014 pursuant to s. 71 of the YCJA . [ 4 ] The determination of whether or not an adult sentence should be ordered is governed by s. 72(1) of the YCJA : 72(1) Order of adult sentence 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. ….. 72(2) Onus The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General. II. The Facts [ 5 ] Counsel submitted an Agreed Statement of Facts, filed as an exhibit in these proceedings. The facts, as agreed to by counsel, are replicated below. S.A. has no prior criminal record.

At the time of the offence the accused was on Judicial Interim Release in the community pending on charges of Utter Threats x2, Possess Weapon, Fail to Comply with Conditions of an Undertaking x2, Mischief Under x2 and Theft Under. He had been released on an undertaking May 9, 2013 and was residing at the Knowles Centre 2065 Henderson Hwy. The co-accused D.M. (15 yrs) and Ryan Halkett (21 yrs) are acquaintances of the accused. The accused and co-accuseds are not known to the victims Glamor Fernandez (41 yrs) and Robin Crellan (67 yrs). Glamor Fernandez is an employee of Robins Donuts.

Robin Crellan was a patron in the restaurant. On May 16, 2013 at approximately 5:15 am, S.A. along with co-accused D.M. and Halkett went to the Robins Donuts located at 1280 Notre Dame Avenue in Winnipeg with a plan to commit a robbery. Halkett purchased food items and they all lingered in the restaurant, hesitating on their plan. They eventually all left the restaurant but remained outside. The trio re-entered the Robins at 5:30 am. Halkett approached the victim Fernandez at the front counter and ordered a drink.

Once Fernandez opened the cash register, Halkett pulled a Glock Model 22 .40 calibre handgun from his front waistband, worked the action to load ammunition into the chamber, pointed it directly at Fernandez and stated “WHERE IS ALL THE MONEY? GIVE ME ALL THE MONEY.” Halkett then told her to “GO DOWN, GO DOWN, I’LL SHOOT YOU.” Fernandez remained down on the ground behind the counter while S.A. and D.M. took cash out of the register (approximately $500) and fled the restaurant.

While leaving the restaurant, Halkett pointed the loaded firearm at victim Crellin who was seated at a table near the door and yelled “STAY WHERE YOU ARE, BITCH”. Police were contacted. The incident was captured on video surveillance. No one was physically injured as a result of the incident. The trio fled to a nearby Shell Station where they disposed of their jackets and called a taxi cab. The cab took them to the Winnipeg Airport. There they disposed of the firearm in a dumpster near the Greyhound Bus Depot. They then purchased bus tickets to Portage La Prairie, Manitoba.

On May 18, 2013, S.A. bragged about the robbery to staff at the Knowles Centre. He drew them a map to the Greyhound Bus Depot where they would find the gun used in the robbery. Winnipeg Police located the Glock Model 22 .40 calibre handgun in a garbage receptacle at the Greyhound Bus Depot, 2015 Wellington Avenue in Winnipeg. The restricted firearm was found loaded with fourteen bullets in the magazine. The firearm is classified as a semi- automatic weapon meaning it can be aimed and fired by the action of one hand. It was tested by the RCMP and found to be in operating condition.

It is a barrelled weapon from which any shot, bullet or other projectile can be discharged that is capable of causing serious bodily injury or death to a person. The firearm in question was stolen from the Department of Natural Resources in Beausejour, Manitoba in 2007. On May 19, 2013 at 12:00 am S.A. was arrested at the Knowles Centre. He was taken to East District station where he was notified of the charges, the youth waiver was completed and he spoke with defence counsel Chantal English. S.A. was turned over to Major Crimes and placed on continuous video.

He was provided his rights and notice of arrest again. He requested to speak to Chantal English again and have her present. He refused to complete the youth waiver until Ms. English attended. Ms. English told police she would not be attending. S.A. refused to contact any other lawyer. Police continued to question S.A. and he admitted his involvement in the robbery. The plan was that they would buy donuts so the clerk

would open the till. The co-accused had the gun during the robbery and he “just took the money”. They didn’t get the gun through Greyhound because of the metal detectors. The co-accused D.M. also gave a video statement implicating S.A. S.A.’s guardian Marta Courchene was notified of his arrest and that he would be taken to the Manitoba Youth Centre. S.A. applied for and was denied bail on June 4, 2013. III. Positions of the Parties A. Position of the Crown [ 6 ] The Crown submits that the Court must balance the age and personal characteristics of the accused with the circumstances of the offence and the need for proportionate accountability.

Section 3 of the YCJA emphasizes fair and proportionate accountability. The Crown also notes the

preamble of the YCJA , highlighting the emphasis on a Canadian youth justice system that: Commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons. [ 7 ] Section 42(2) (

n) of the YCJA directs a maximum penalty for robbery of three years, comprised of two years of custody to be followed by one year supervision in the community. The maximum sentence, as an adult, is life imprisonment and, because of the use of a restricted firearm in this offence, the minimum sentence is five years. [ 8 ] S.A. was 16 years at the time of the offence, and is now 17 years of age. He was subject to an order of judicial interim release, including a condition not to possess any weapons or firearms. The pending charges, at the time the robbery occurred, related to his placement at the Knowles Centre.

He had been arrested on three separate occasions, released twice by the police and, on the last occasion, May 9 th , 2013, had been released by the Court with the consent of the Crown. The robbery, the subject of this application for an adult sentence, occurred May 16 th , 2013, one week after the last release from custody. [ 9 ] The outstanding charges were disposed of in January, 2014.

The disposition imposed was one year supervised probation, upon guilty pleas to mischief, and possess weapon for a purpose dangerous to the public peace. [ 10 ] The Crown emphasizes the seriousness of the offence, and the use of a loaded, restricted, stolen firearm rendering the offence terrorizing. This was a planned robbery of a vulnerable restaurant clerk at 5:00 in the morning. The offence resulted in significant victim impact and the female employee was working alone between 5:00 and 5:30 a.m. [ 11 ] The weapon used was a restricted firearm, found loaded with 14 bullets in the magazine.

The firearm itself had been stolen in 2007, and had been on the street since that time. [ 12 ] The victim has been working at that donut shop for 13 years. This was the first time she had been robbed. It is always her responsibility to open the store in the morning. Crown counsel presented her victim impact information. When she was told to get on the ground or she would be shot, she was praying and thinking of her children.

She continues to work at the location, in the same job, because she needs the money. [ 13 ] The Crown emphasizes the aggravated features of the offence, urging the Court to conclude that S.A. had the moral capacity of an adult. [ 14 ] The Crown highlights the following factors: • S.A. was subject to an order of judicial interim release at the time of the robbery; • S.A. was subject to an order not to possess weapons; • The victims were complete strangers to him; • Ms Fernandez was a lone, vulnerable store clerk working alone in the early hours; • The firearm used was a restricted firearm, loaded, and that a firearm was involved is a codified aggravating feature; • The robbery was planned, and S.A. had a dedicated role of taking the money; • S.A. appears calm in the video; • The element of planning and arming oneself reflects forethought; • This robbery was far from impulsive, and, after an opportunity to walk away when they had first entered the donut store, S.A. returned to execute the robbery; • The robbery was committed by a group; • The words used are particularly horrifying, including a threat to shoot the victim; and • The victim impact to Ms Fernandez. [ 15 ] The Crown submits the mitigating features are few:

• The guilty plea; and • Pointing out to the police where the firearm could be located, and other cooperation. [ 16 ] The Crown says S.A.’s moral blameworthiness is very high, and that the presumption of diminished moral blameworthiness has been rebutted. [ 17 ] The pre-sentence report demonstrates turbulent and concerning behaviour while pending on this matter in custody, which the Crown says is an important factor for consideration in determining whether or not an adult sentence should be imposed.

He has demonstrated behavioural problems while in placement, his companions are all criminally involved, and the writer of the pre-sentence report reflected S.A.’s attitude that this was not problematic. [ 18 ] The Crown sees this behaviour pattern as adult-like. S.A. was associating with Mr. Halkett, an adult.

The pre-sentence report writer assessed S.A. as a high risk to reoffend. [ 19 ] The forensic assessment speaks of diagnoses of Fetal Alcohol Spectrum Disorder and Attention Deficit Hyperactivity Disorder. [ 20 ] The Crown submits that the gravity of S.A.’s conduct here is so severe and the extent of his responsibility so extensive, that only an adult sentence would be sufficient to hold him accountable. B.

Position of the Defence [ 21 ] Defence highlights that the onus is on the Crown to rebut the presumption of diminished moral blameworthiness, and that a youth sentence is of insufficient length to hold the young person accountable. Both prongs of the test must be satisfied. Authorities reflecting orders for adult sentences on robbery charges generally relate to multiple robberies, not a single event as the case here. A youth sentence would best protect the public on a long-term basis. [ 22 ] The consequences of the imposition of an adult sentence should be considered by the Court.

In this case, they are very severe. A youth sentence would permit gradual and controlled reintegration into the community in a way different than that available in the adult system. The Court has a broad discretion in the treatment of the pre-trial custody, which, at the time of argument, was 262 days. The pre-trial custody can be apportioned as the Court sees fit.

It can be taken into account and deducted from the sentence ultimately imposed, or, it can be taken in account and not deducted leaving potential for the three-year sentence going forward to be available in Youth Justice Court. [ 23 ] The Crown seeks a term of incarceration in the adult court of five to six years.

Taking into account the pre-sentence time and three-year maximum sentence available in Youth Justice Court, the potential sentence available to the sentencing judge in the youth system is significant and, depending on the treatment of the pre-sentence time, could approach that requested by the Crown in the adult court in any event. [ 24 ] Adult sentences should be rarely ordered for youths. The types of cases generally the subject of orders for adult sentences are murder, manslaughter, multiple robberies, and home invasion.

Defence expressed concern that to make an order in a case such as this would open the door to making orders for adult sentences in cases not traditionally the subject of such an order. [ 25 ] Considering ss. 3 and 38 of the YCJA , accountability must be balanced with rehabilitation, reintegration, and proportionate accountability consistent with the greater dependency of young persons and their reduced level of maturity. S.A. is both an Aboriginal young person, and a young person with special needs.

Both of these factors must be considered. [ 26 ] Defence submits that the guilty plea, and his cooperation with police including supplying information leading to the discovery of the firearm, be heavily weighed. The report that he bragged about his involvement at the Knowles Centre is best viewed in the context of his cognitive issues and his functional capacity. His particular challenges may result in speaking out for attention-seeking. Although others may perceive his conduct as being “bragging”, it may be more reflective of his inability to verbally mediate what he is going to say.

He did draw a map, leading to the finding of the weapon; that certainly expedited the investigation leading to further arrests. [ 27 ] He did grab the money as clearly evidenced in the video filed, but it is the adult co-accused holding the weapon showing dynamics including his cognitive issues and desire to be liked, playing a role. [ 28 ] The offence occurred while S.A. was placed in Knowles, a highly-structured and intensive treatment program. His placement history commenced with apprehension at age five. He was eventually put in a foster placement where he remained for five years.

He says he was abused in that home, and although he attempted to disclose to various people, he feels he was not believed. He was ultimately placed with the D. family in rural Manitoba, which was very successful. Mr. D. attended the hearing in support of S.A. [ 29 ] When his behaviour ultimately became problematic, rather than the Agency extending support in an attempt to keep S.A. in the D. home, from Mr. D. and S.A.’s perspective, S.A. was removed from the placement without discussion, separated from his brother and placed at Knowles.

While in the rural placement, he became involved in Cadets, among other activities. One of the families he met through Cadets attended the hearing to support him. He apparently did well in Cadets escalating through leadership roles. He remains connected to both Mr. D., and the son of the family he met through Cadets, contacting them from in custody. [ 30 ] The forensic assessment focused on the impact of S.A.’s FASD diagnosis on his day-to-day functioning. His I.Q. falls in the “borderline” range, between 70 and 79.

Although S.A. has completed some Grade 8 and 9 course work while at the Manitoba Youth Centre, when academically tested for the forensic assessment, he scored at a mid-Grade 5 level for reading, and a mid-Grade 3 level for math. His executive functioning is compromised by Fetal Alcohol Spectrum Disorder. Dr. Fisher did not receive the impression that S.A. was overly criminally engrained, but is suffering significant negative impact from his early trauma, making decisions based on his feeling that there is little to lose. Dr.

Fisher’s supplemental report notes that the diagnostic combination of Fetal Alcohol Spectrum Disorder and Attention Deficit Hyperactivity Disorder presents “significant challenges” for adolescents. Dr. Fisher highlights particular

vulnerability to impulsive acting out, and a compromised capacity to make positive decisions. [31] Defence asks the Court to view S.A.’s tumultuous behaviour while in custody, as poor response to anger and a limited ability tobetter problem solve.

More positively, S.A. has completed a number of programs while in custody. [32] Defence submits a number of Gladue, (SCC), [1999] 1 S.C.R. 688, factors at play, referring particularly to thestruggles experienced by S.A.’s mother and grandmother, displacement from his community, loss of language and cultural practices. [33] Prior to placement in care at age five, he was nurtured by a mother and grandmother who had significant substance issues.

Thevery challenges S.A. struggles with as reflected in the forensic assessment and pre-sentence report, are a direct result of his mother’sissues with substance abuse. [34] The Crown has not rebutted the presumption of reduced moral blameworthiness. S.A. cognitively functions at less than his age.He has not demonstrated an entrenchment in criminal behaviour, he would like to take treatment, has participated in programs while incustody, and shown a willingness to try to improve.

Defence says that this application is not just about the seriousness of the offence, butthat S.A.’s personal circumstances must be considered as well. The Court must focus on protection of the public in the long term, not justthe immediate future. A youth sentence need not ensure rehabilitation, but be adequate to promote rehabilitation. C. Position of the Parent [35]

Section 71 of the YCJA, requiring the holding of a hearing, further mandates “Both parties and the parents of the young personshall be given an opportunity to be heard at the hearing.” Marta Courchene, S.A.’s social worker since June, 2012, indicated a desire tobe heard. She appeared without counsel, accompanied by her supervisor, to express her position to the Court. [36] S.A. is a permanent ward of Awasis Agency of Northern Manitoba. Ms Courchene explained that she was S.A.’s fifth socialworker, and that he has endured abuse on every level that has impacted him significantly.

She spoke of his diagnoses of ADHD andFASD, spiritual loss of connection with his family and his culture, and his own inner self. She said that incarceration will not help him,and might isolate and damage him even more. His history with Child Welfare dates back to December 22, 1998. [37] Ms Courchene advised that the plan for S.A. is counselling, therapy, and a placement where he will feel more comfortable andrelaxed. She suggested a placement out of the city, as he once enjoyed.

While she acknowledged that S.A. did commit the crime, it washer view that he is a victim too, vulnerable to those who could take advantage of him. She is confident that S.A. understands what he didwas wrong. Ms Courchene felt that S.A. now appreciates the importance of family. She suggested that the older individual glamorizedhis lifestyle and S.A. was easily misled.

She felt that there was still time for the Agency to fix things that have been broken with S.A. [38] Despite Ms Courchene’s intention to continue to work with S.A., she advised that she is not able to plan or apply for an extension of care beyond his 18th birthday while he is in custody. IV.

Authorities [39] In Her Majesty the Queen and B.L., 2013 MBQB 89, Mainella J., as he then was, considered the principles applicable here.B.L. at the age of 16 committed a home invasion as the leader of three other youths, and, while subject to judicial interim release, actingalone robbed an office worker. (at para. 3) [40] In further discussing the onus of proof on the Crown, the Court said: The onus to order a young person liable for an adult sentence is neither proof beyond a reasonable doubt nor proof on a balance ofprobabilities.

Rather, the standard is one of satisfaction after careful consideration by the court of all the relevant factors. (at para. 36) [41] The seriousness of the offence, as here, does not automatically lead to an order for an adult sentence: Accordingly, to rebut the presumption of diminished moral blameworthiness, the Crown must demonstrate to the court’s satisfaction thatthe young person had the moral capacity of an adult at the time of the offence(s). Relevant are the circumstances of the offence(

s) andthe young person. See D.B. at paras. 77 and 94. (B.L. at paras. 38 and 86) [42] In discussing the nature of the onus on the Crown, the Ontario Court of Appeal in R. v. O.(A.), 2007 CarswellOnt 1181, said: Section 72(2) imposes an onus of satisfying the court, nothing more. However, in applying that onus, it is important that a youth justicecourt bear in mind the very serious consequences of an adult sentence for the young person, so as to only order an adult sentence whennecessary to fulfil the objectives of the YCJA. (at para. 38) [43] The concept of accountability for offending behaviour in s. 72(1)(

b) of the YCJA requires that the sentence imposed must reflectthe moral culpability of the offender, considering the quality of the conduct and the harm caused. (R. v. K.H., 2013 MBPC 31, at para.10) [44] In Her Majesty the Queen and R.L., 2009 MBQB 137, McKelvey J. considered circumstances with some factual similarity tothe case here. R.L. pleaded guilty to four counts of robbery with a firearm. The robberies occurred at four convenience stores. R.L. actedwith a number of co-accused, one of whom was an adult. Unlike the case at bar, the accused all wore disguises and gloves.

However,similar to this matter, the adult co-accused brandished a firearm, in that case a rifle, at all four locations. The rifle was later shown tohave been unloaded. At the time of the robberies, R.L. was 16 years of age, as was S.A., and had no previous record. R.L.’s involvementwas to take the stolen goods from the scene. The Court noted, as is noteworthy in this case, that convenience store clerks working earlymorning hour store shifts, are always vulnerable to attack and robbery. McKelvey J. observed that such conduct is “egregious and a

significant problem in our community” (at para. 18). [ 45 ] As was R.L., S.A. was assessed by Dr. Fisher and the assessment reflected behavioural difficulties, being raised by his grandmother, and Child and Family Services placement in early childhood. His mother died when he was young. R.L. had issues with alcohol and marijuana. R.L. attended the Addictions Foundation of Manitoba and a residential treatment program. Unlike S.A., R.L. demonstrated no evidence of significant cognitive or intellectual limitations according to Dr.

Fisher. [ 46 ] As here, R.L. experienced inappropriate and violent incidents while in custody as reported by Manitoba Youth Centre staff. [ 47 ] McKelvey J. reviewed a series of authorities, all of which concerned serious offences. The accused in the cases referred to by McKelvey J. had little, or no, record. All of the cases resulted in a court order for an adult sentence.

In the case of R.L., McKelvey J. concluded that the Crown had met the onus for the imposition of an adult sentence. [ 48 ] In Her Majesty the Queen and K.H., supra , Lee Ann Martin P.J. considered a Crown application for an adult sentence for a 15 year old who committed six robberies at gunpoint against youths. K.H. suffered from significant cognitive deficits. He responded very well while in custody, earning the highest level of compliance for his behaviour.

In ordering that K.H. be liable to an adult sentence, Martin P.J. noted K.H.’s gang undertones, threats to the victims, loading the pistol in front of the victim, and that some victims were still in treatment as a result of their psychological harm. V. Analysis [ 49 ] The facts of this case are very serious. The Crown accurately and succinctly highlighted the aggravating and concerning features of the crime. The Crown’s submission was clear and well-grounded in articulating the position that only an adult sentence would be of sufficient length to hold the young person accountable.

The chilling features of the offence are obvious in the video played by Crown counsel in the context of this hearing. [ 50 ] There are, however, features of this matter that render what otherwise would be a rather straightforward analysis, less so. [ 51 ] S.A.’s cooperation with law enforcement, and disclosures in connection with the offence, bear consideration. The crime would likely have been solved in any event, but S.A.’s disclosure to staff at the Knowles Centre certainly expedited the process.

Although staff interpreted the confession as “bragging”, the fact is that he shared details of the offence, including drawing a map to assist in identifying where the gun used in the robbery could be found, with staff persons at his residential treatment centre. This assisted the speedy recovery of a loaded restricted, stolen firearm in circumstances where that might not have been the case. In addition to disclosing the offence to Knowles staff, S.A. cooperated with police including giving them a statement. [ 52 ] The offence occurred in the company of an adult.

It was the adult, while holding the loaded gun, who threatened the clerk and pointed the gun at a patron and threatened him. That is not to say that S.A. was not complicit, and a participant, in this crime and its planning. The facts, however, do not suggest that he was the leader of this group, but a follower of the adult. [ 53 ] The pre-sentence report, amplified by the submission of S.A.’s social worker, Marta Courchene, describes a youth who is the product of a terrible childhood, riddled with exposure to violence in the home, substance abuse, and neglect.

According to him, his grandmother and mother were intoxicated, and he ran to a neighbour’s home to call 911 resulting in the involvement of Child and Family Services.

The social history obtained by the Probation Officer places that event in 2001, when S.A. would have been five years old. [ 54 ] According to the pre-sentence report, his mother and grandmother consented to permanent orders in favour of Awasis Agency of Northern Manitoba in 2003 and S.A. told the report writer that he was placed with a family that abused him for an extended period. [ 55 ] When subsequently placed with the D. family, he had many positive experiences and good support until his behaviour became unmanageable for Mrs. D.

In a supplemental report, the pre-sentence report writer expanded on the information about the D. placement. S.A. and his younger brother resided with Mr. and Mrs. D. for five years. He responded well to the intervention, and it took some time to support S.A. to believe that he was not dumb and capable of learning. [ 56 ] Mr. D. described S.A. as “a great kid with a kind heart”. Mr. D. did note, however, that S.A. was easily influenced by negative youth in the community.

At the end of this five-year placement, in which S.A. participated in Cadets, went to camps including church camp, YMCA camp, and Cadet camp in British Columbia, to Mr. and Mrs. D.’s surprise, S.A. was placed in a group home for two days. S.A. bragged about how much he was enjoying the lack of rules and no curfew in the placement. Mr. D. had assumed that S.A. would be returned to them. [ 57 ] They were informed that once a youth has left he cannot return to a previous home. Mr. and Mrs. D. would have kept S.A. and his brother had they been able. Mr.

D. reported that S.A. was “a lost boy” when he arrived in their home and they tried to help him find his way. S.A. was very good with their grandchildren and the family pets. Mr. D. appeared in support of S.A. at the hearing of this matter. [ 58 ] Dr. Garry Fisher assessed S.A., submitting two reports, a forensic assessment and an addendum to forensic assessment. In the forensic assessment, considering his history, and neurodevelopmental difficulties, Dr. Fisher described S.A.’s presentation “as a high- needs challenging adolescent”. In discussing potential community release placement, S.A. spoke to Dr.

Fisher about his positive experience with the D. family, indicating he would be prepared to return there. He agreed that the placement had been terminated because of his negative behaviour, but committed to improve if allowed to return. His long-term goals were realistic, indicating a desire to work for Manitoba Hydro, on oil rigs, or as a farm labourer. As he did with the pre-sentence report writer, S.A. told Dr. Fisher about a history of abuse by previous foster parents. [ 59 ] Dr. Fisher found that S.A. interacted in an appropriate fashion, and demonstrated social conversational skills.

Although he denied current suicidal ideation, he acknowledged that he had a history of previous suicidal ideation.

[ 60 ] Dr. Fisher assessed his overall level of intellectual functioning in the borderline range with an I.Q. of 70 to 79, but noted the limitations in clinical significance because of the high degree of variability across the processing areas. [ 61 ] After specific sub-testing, Dr.

Fisher concluded that the results suggested that he reflected a profile of a youth who would act out impulsively. [ 62 ] The combination of S.A.’s negative early developmental experiences, poorly-developed attachments resulting from multiple placements, absence of family support, and his neurodevelopmental issues all likely contributed to his history of challenges. One to one, S.A. presented as likeable and pleasant. [ 63 ] Despite his recent criminal justice system involvement, S.A. did not impress Dr.

Fisher as an adolescent who is “criminally engrained”, but instead feels alone in the world and because of his history makes behavioural decisions based on a sense of there being “little to lose”. [ 64 ] In the addendum, Dr. Fisher responded to a request by defence counsel to comment on issues directly related to suitability for an adult sentence, and the functional impact of Fetal Alcohol Spectrum Disorder. He said that the combination of his FASD and ADHD contributes generally to frequent impulsive acting out.

Afterwards, those similarly affected acknowledge their patterns of poor decision making, but lack the capacity to make positive decisions. [ 65 ] Similar individuals are vulnerable to negative peer influence, and S.A. acknowledged that he acts out when he feels frustrated. Dr. Fisher commented that S.A.’s turbulent behaviour in custody is a reflection of poor response to feelings of anger and deficit in the capacity to develop better problem-solving and coping strategies. [ 66 ] His neurodevelopmental problems and negative history place him at risk.

On the other hand, his well-developed strength in visually-based areas could lead to success in trades and exposure to more positive peers. [ 67 ] Dr. Fisher commented on S.A.’s suitability for a youth sentence or an adult sentence as follows: With regard to suitability for sentencing in an adult versus youth Court, and considered only from a psychological or clinical perspective, S.A. presents with a somewhat “mixed picture”.

His history of recurrent criminal justice system involvement, serious nature of his charges, history of non-compliance in youth correctional centres, vulnerability to further episodes of behaviour that could attract criminal justice system attention given the number of challenges he faces (in terms of cognitive abilities, social and developmental experiences, and degree of positive community support available) all speak to difficulties in easily viewing him as a good long-term potential candidate for success in a youth correctional facility.

His neurodevelopmental challenges raise concerns, however, as he presents as an individual who has a diminished capacity with respect to assuming personal responsibility, and often, other similar adolescents do well in a well-structured and supervised environment, either in the community or in an institution, where they are essentially “kept busy” in positive activities. S.A. did not present as an overly “mature” individual. It is likely that his developmental problems and FASD create a context in which he is not appreciably functioning at an age or degree of responsibility equivalent to his chronological age.

There is little appreciable need for a rehabilitative plan to necessarily consider an adult-length sentence to be successful. From an intervention perspective, assisting him with longer-term life planning, encouraging him to address early trauma issues, reduce his vulnerability to substance usage, and encouraging development of more prosocial peer and adult supports would likely be important components in terms of reducing his overall risk of recidivism. [ 68 ] Mainella J., as he then was, in R. v.

B.L. , supra , synthesized the analytical task before this Court as follows: …Assessing the maturity of an adolescent's thinking is, therefore, a case-specific and contextual exercise; generalizations about adolescents should be avoided. One size does not fit all. As Abella J. stated in A.C. : [4] I acknowledge that because we are dealing with the inherent imprecision of childhood and adolescent development, maturity is necessarily an imprecise standard.

There is no judicial divining rod that leads to a "eureka" moment for its discovery; it depends on the court's assessment of the adolescent, his or her circumstances and ability to exercise independent judgment, and the nature and consequences of the decision at issue. ... 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). ( R. v. B.L. , supra, at paras. 37-38 ) [ 69 ] That S.A., at the age of 16, committed an adult-like crime, is beyond question.

However, his background and personal circumstances reflect a young person whose scorched and deprived upbringing has compromised his ability to function and make appropriate choices. His I.Q. is borderline and he presents as younger than his age. He demonstrated that he could respond to appropriate nurturing and guidance in the D. family placement, which, for reasons not clear in the evidence presented by the Crown, was not supported when his behaviour became problematic.

His well-documented psychological diagnoses contribute to his struggle with appropriate impulse control and decision making, resulting in the kind of behaviour that brings him before the Court, and has remained a challenge for his management in the correctional setting.

However, it is also noteworthy that he chose to cooperate both with Knowles staff and the Winnipeg Police Service resulting in an expedient solution of the crime. [ 70 ] When considered in totality, the evidence presented by the Crown does not rise to the level of demonstration to the Court’s satisfaction that S.A. had the moral capacity of an adult at the time of the offence. VI. Conclusion [ 71 ] I am not satisfied that the presumption of diminished moral blameworthiness or culpability of the young person is rebutted, and

that a youth sentence would not be of sufficient length to hold the young person accountable for his or for her offending behaviour. The application by the Attorney General for an order that S.A. is liable to an adult sentence pursuant to s. 64(1) of the YCJA is not granted. “Original signed by:” PULLAN P.J.