R v M (H), 2022 MBPC 42

CITATION: R v M (H) , 2022 MBPC 42 THE PROVINCIAL COURT OF MANITOBA (Youth FASD Court) BETWEEN Her Majesty the Queen ) ) C. Ritchot and M. Donald for the Crown - and - ) ) H. M. ) ) S. Soldier and M. Serbin for the Accused Accused ) ) Reasons for Decision ) Delivered: August 10, 2022 RESTRICTION ON PUBLICATION: Please note that the Youth Criminal Justice Act section 110(1) which prohibits the publication of any information that may identify the young person as having been dealt with under this act applies to this decision. C.A. DEVINE, P.J. INTRODUCTION [ 1 ] This is a sentencing decision for a manslaughter.

H.M. was seventeen years and seven months old at the time that he stabbed the victim Joshua Hansen in the upper chest with a knife. The Crown submitted an application under section 64(1) of the Youth Criminal Justice Act ( YCJA ) to have H.M. sentenced as an adult. The victim was a beloved member of his family and a talented hoop dancer. H.M. is also an Indigenous young man whose life has been hugely impacted by the traumas and sequelae of colonialism and residential schools.

He has a diagnosis of Fetal Alcohol Spectrum Disorder (FASD), extremely low cognitive functioning, Attention Deficit Hyperactivity Disorder (ADHD), a history of depression, as well as behavioural challenges marked by oppositional defiant and conduct disordered traits, and he presents as a “vulnerable individual with limited capacity to organize himself and manage his own behaviour”, according to the several psychiatric and psychological assessments conducted prior to and subsequent to this offence. (Court-ordered Forensic Assessment, October 15, 2021) He was intoxicated when he committed the offence. [ 2 ] This was a very difficult decision.

A horrible crime has ended the life of a young man who is sorely and grievously missed by his family and friends. That horrible crime was committed by a teenager on the verge of chronological adulthood, who has many deficits and has experienced, inherited and internalized many traumas. [ 3 ] This hearing took place over four days. On each day, members of the victim’s family were in attendance in the courtroom to the maximum capacity permitted by the court’s COVID rules, with additional family members watching the court proceedings remotely at Candace House.

On the other side of the courtroom were members of the young person’s team of experts and helpers: his Action Therapists, his caseworker with Child and Family Services (CFS); his worker from the FASD Youth Justice Program; his former foster parent; and briefly, his sister and another relation who attended on the first day.

The contrast between the full attendance of many, many members of the victim’s family as opposed to virtually no members of the accused young person’s family was not lost on me. [ 4 ] It is the absence and dislocation of family and loss of language and place that has in many ways brought this matter before the Court. THE FACTS [ 5 ] The parties arrived at an agreed statement of facts for the guilty plea in this matter. At the time of the offence on August 6, 2020, H.M. was seventeen years old. He was bound by a probation order which included a condition not to own, possess or have control of any weapon.

He was also bound by a release order from June 23, 2020, which also included a condition not to own, possess or carry any weapon. [ 6 ] On August 6, 2020, H.M. was with a group of people at the Mount Royal Hotel at 186 Higgins Avenue in Winnipeg, Manitoba. The group of people included an adult co-accused and other witnesses. At 10:48 p.m., H.M. encountered the victim Joshua

Hansen outside the hotel. H.M. and the co-accused approached the victim and without provocation, H.M. stabbed him once in the upper chest with a knife, causing him to fall to the ground. Once on the ground, the victim was stabbed a further five times in the left side of the flank and abdomen area. 9-1-1 was called. The victim was rushed to Health Sciences Centre where at 11:20 p.m. he was pronounced deceased. The autopsy determined that the cause of death was the stab wound to the chest that had penetrated the victim’s heart.

That stab wound was caused by H.M. [ 7 ] H.M. was arrested 10 days later on August 16, 2020, and was interviewed by homicide detectives. One of the witnesses who was with him that night told police she did not see the knife that night, but had seen H.M. with a knife earlier that day and when she saw him after the stabbing that night H.M. told her, “I stabbed him.” H.M. also stole the victim’s identification cards and later threw them in the garbage. Police interviewed a social worker at the group home where H.M. was living at the time of the homicide.

The social worker told police that H.M. had confided in her that he had stabbed someone and used a motion with his hand towards his heart. [ 8 ] H.M. was drinking and intoxicated the night of the offence and has limited memory of the incident, but accepts the facts. [ 9 ] He pleaded guilty to the manslaughter and at the time the Crown advised it would be making an application to have him sentenced as an adult. He has been in custody since August 16, 2020. [ 10 ] H.M.’s memory and attitude towards the offence was canvassed in the pre-sentence report (PSR), the Gladue report and in his statement to the police.

The story is conflicting. What is constant, is that he was steadily intoxicated on alcohol and drugs leading up to and after the offence and was living a transient and chaotic lifestyle associating with his mother and other relatives and people using substances. His mother was residing at the Salvation Army shelter at the time. Although he had a group home, he was also staying at the Manwin Hotel. After a night of drinking, the group went to the hotel to buy more alcohol and there encountered the victim.

Some type of communication occurred between the victim and H.M.’s group and then H.M. and the co-accused produced knives and stabbed the victim. [ 11 ] H.M. expressed significant remorse and empathy towards the victim and his family to the PSR writer, the Gladue report writer and to the Court. Andrew Vergara, the Probation Officer who wrote the PSR, stated that H.M. was distressed and emotional discussing the impact on the victim and his family, and recognized the loss of life to the victim and his family.

He recognized that the family of the victim may be experiencing fear, anger, sadness, concern, confusion, disappointment, discouragement, hurt, loneliness, alarm, shock and stress. He did this using a feeling chart, which contains descriptive feeling words below a drawing of a fact depicting that emotion. THE EVIDENCE [ 12 ] There was considerable evidence and information shared with the Court over the four-day hearing. I have reviewed and considered the following evidence heard and filed in this matter: • Manitoba FASD Centre multi-disciplinary report dated November 19, 2019; • Testimony of Dr.

Garry Fisher, psychologist and former director of the Manitoba Adolescent Treatment Centre (MATC) Youth Forensic Services Program who conducted four court-ordered psychological assessments of H.M.; • Four court-ordered Psychological Forensic Assessment reports of Dr. Fisher written between 2019 and 2021; • Court-ordered Psychiatric Forensic Assessment report of Dr.

Keith Hildahl dated November 19, 2018; • Testimony of Jennifer Harlos, Provincial Intensive Rehabilitative Custody and Supervision (IRCS) Coordinator; • Proposed IRCS Treatment Plan; • Supplementary PSR for this offence and sentencing, including a Gladue component, dated November 3, 2021; • PSRs dated July 15, 2019 and February 23, 2021 (for a robbery offence that occurred February 17, 2020, sentencing March 9, 2021); • Gladue report filed by the defence, by Ken MacKenzie and K. MacKenzie Consulting Services; • FASD Court Docket

Summary prepared by the FASD Justice Program; • Speech and Language Assessment Report of Shelley Proven, Speech-Language Pathologist; • A book of victim impact statements (VIS) written, and in most cases, presented by family and friends of the victim in this matter; • The youth criminal record of H.M.; • The police statement of H.M. regarding this offence; • Transcript of the sentencing hearing and sentencing decision of Judge Pullan for the February 17, 2020 youth robbery conviction of H.M., dated March 9, 2021; • Four volumes of records from Manitoba Corrections covering the time that H.M. has been in custody; • Annual reports of 2014/2015 and 2018/2019 of the Office of the Correctional Investigator;

•

Chapter four of the Report of the Aboriginal Justice Inquiry of Manitoba (AJI); • “The Justice System and Aboriginal People” and

Summary of the Final Report of the Truth and Reconciliation Commission of Canada (TRC). THE CROWN POSITION [ 13 ] The Crown argued that the presumption of diminished moral culpability is rebutted in this case because H.M.’s actions, both at the time of the offence, and before and after that in his previous offending, subsequent offending and his behaviour while in custody, all demonstrate that he exercises the judgment of an adult.

The Crown argues that the nature and circumstances of the offence are so serious and H.M. is so violent and high-risk that the IRCS treatment plan recommended by the defence and the coordinator of IRCS, would be insufficient to hold him accountable for this crime. [ 14 ] The Crown is seeking a sentence of eight years in the penitentiary.

The Crown states that it is necessary to incarcerate H.M. for this lengthy period of time in order to express society’s denunciation of this unprovoked homicide, to impose a deterrent sentence and to provide protection to the public because H.M. is at high-risk to commit more violent offences. The Crown also argued that any rehabilitation could occur at the point that H.M. is paroled back into the community. THE DEFENCE POSITION [ 15 ] The defence position is that the Crown has not rebutted the presumption of diminished moral culpability in H.M.’s case.

They point to H.M.’s FASD diagnosis and reduced cognitive and day-to-day functioning which are detailed in the Manitoba FASD Centre multi-disciplinary report that was conducted when H.M. was 16 years old. The defence also points to the five forensic reports authored by psychologist Dr. Garry Fisher and psychiatrist Dr. Keith Hildahl, the Speech-Language Pathologist’s assessment report and the determination by the Province of Manitoba that H.M. is a vulnerable person in law and thereby eligible to receive on-going services as an adult through Community Living disAbility Services (CLdS).

The defence also points to the reduced moral culpability as a result of H.M.’s circumstances as a young Indigenous person from the north, where several generations of contact and subsequent colonial policies, the Indian Act and residential schools, have contributed to intergenerational trauma affecting his family and himself. [ 16 ] The defence is seeking the maximum youth sentence for manslaughter in the YCJA , in the form of an Intensive Rehabilitative Custody and Supervision Order (IRCS), which is three years, and in addition asks the Court to take into account the period of time that H.M. has spent in custody and has been actively engaged in rehabilitative endeavors.

He has been in custody for the entirety of the two years since he was arrested on August 16, 2020. On March 9, 2021 he was sentenced for a robbery; some of his previous time in custody was considered part of that 21-month custody and community supervision order. He spent the entirety of the robbery sentence in custody and it was completed on February 26, 2022. DECISION [ 17 ] After considering all the evidence and the very able submissions of counsel, it is clear to me the decision that must be made in this case. The presumption of reduced moral culpability has not been rebutted.

Moreover, taking into account the lengthy period of incarceration already served by H.M., plus the three-year IRCS treatment plan presented, the youth sentence is of sufficient length to hold H.M. accountable for this manslaughter. [ 18 ] The reasons for this decision follow. SENTENCING PRINCIPLES FOR YOUNG PEOPLE [ 19 ] The principles and objectives of sentencing for young people are very different from the principles and objectives of sentencing for adults.

Section 50 of the YCJA explicitly states that

section 718 of the Criminal Code does not apply to youth sentencing. Even though this is an application to sentence H.M. as an adult, it is important to understand the application under section 64(1) in the context of sentencing people under the age of 18. [ 20 ] The presumption in the YCJA is for non-custodial sentences. Custodial sentences are not permitted, except in certain circumstances set out in

section 39 of the Act . [ 21 ] The framework for sentencing young people is complex and is set out in sections 3 and 38 of the YCJA .

Section 3 sets out the policy for Canada with respect to young persons; the provisions that are relevant to sentencing are below: Policy for Canada with respect to young persons 3.

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

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of youngpersons and their reduced level of maturity, (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and,where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’srehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginalyoung persons and of young persons with special requirements; and [22]

Section 38 of the YCJA sets out the purpose and principles for sentencing young people.

Subsection 38(1) provides that thepurpose of sentencing is to hold a young person accountable for an offence through the imposition of just sanctions that: − have meaningful consequences; and − promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of society. [23] It should be noted that the protection of the public is a long-term outcome or result of a youth sentence, not an immediateobjective of a sentence (R v BWP; BVN, 2006 SCC 27 , [2006] SCJ No. 27 (SCC)). [24] Subsection 38(2) provides that a judge sentencing a young person shall determine the sentence in accordance with theprinciples in

section 3 above, and the following principles: 38(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with theprinciples set out in

section 3 and the following principles: (

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

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

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

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

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

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

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

i) to denounce unlawful conduct, and ii) To deter the young person from committing offences. [25] The objective is to hold young persons accountable. Subsection 38(2) requires that an accountable sentence is achieved bydetermining it in accordance with the principles set out in

section 3, which are further detailed in subsection 38(2). The means by whichthat objective is to be achieved is to impose just sanctions that have meaningful consequences and promote the young person’srehabilitation and reintegration. A sentence that complies with these requirements can make a contribution to the long-term protection ofthe public. [26] Subparagraph 38(2)(e)(

i) provides that, within the limit of a proportionate response to the offence, the sentence must be theleast restrictive sentence that is capable of achieving the purpose of sentencing. In considering possible proportionate sentences, theCourt must choose the least restrictive alternative.

[ 27 ] Amendments to the YCJA came into force on October 23, 2012. An amendment to subsection 38(2) allows a Court to consider the objectives of specific deterrence and denunciation: (

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

i) to denounce unlawful conduct, and ii) to deter the young person from committing offences. [ 28 ] A sentence that promotes deterrence but does not promote the rehabilitation of the young person would not be in accordance with the purpose of sentencing under the YCJA . [ 29 ] Subsection 38(3) provides that, in determining a youth sentence, the Court shall also take into account: 38(3)(

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

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

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

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

e) the previous findings of guilt of the young person; and (

f) any other aggravating or mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 30 ] It is a fundamental principle of the Canadian legal system, enshrined in the YCJA , that people under the age of 18 are less morally blameworthy and responsible than adults for their criminal conduct. [ 31 ] It is no longer the case that there are “presumptive offences” in the YCJA , such as murder and manslaughter, which require that the Court imposes an adult sentence unless the defence can demonstrate that a youth sentence will be of sufficient length to hold the young person accountable.

The Supreme Court of Canada found that provision unconstitutional in R v DB , 2008 SCC 25 . Writing for the majority, Justice Abella discussed the legal history and principles underpinning the YCJA , as follows (at paras 1 and 41): Young people who commit crimes have historically been treated separately and distinctly from adults. This does not mean that young people are not accountable for the offences they commit. They are decidedly but differently accountable.

What the onus provisions do engage, in my view, is what flows from why we have a separate legal and sentencing regime for young people, namely that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability.

This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment. [ 32 ] The codification of reduced moral blameworthiness in the YCJA presumes that “because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment” ( DB at para 41). [ 33 ] The emphasis of the YCJA is on accountability and to promote rehabilitation and integration into the community for the long- term protection of the public.

The use of incarceration is restrained and circumscribed to only those cases where it is necessary. IMPOSING AN ADULT SENTENCE ON A YOUNG PERSON [ 34 ] In exceptional cases where the person under the age of 18 exhibits the judgment and moral culpability of an adult, and the sentencing principles in the YCJA would constrain the Court to impose a sentence of insufficient length to hold the young person accountable, an adult sentence shall be imposed.

The onus is on the Crown to rebut the presumption of diminished moral blameworthiness and justify an adult sentence. [ 35 ] Section 72(1) of the YCJA provides as follows: 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. [ 36 ] The standard of proof imposed on the Crown is not the criminal standard of proof beyond a reasonable doubt, nor the civil standard of a balance of probabilities, but rather that the Youth Justice Court must be “satisfied” that both parts of the test set out in section 72(1) have been proven by the Crown, after careful consideration of all the relevant factors. [ 37 ] To determine whether the presumption of reduced moral culpability has been rebutted, such that the Court is satisfied that H.M. had the moral capacity of an adult at the time of the offence, the Court must consider the circumstances of the offence and the young person as to whether he exercised adult-like judgement ( R v Okemow , 2017 MBCA 59 , citing DB at para 37; R v W(M) , 2017 ONCA 22 at paras 96-98 ; R v R (JF) , 2016 ABCA 340 at para 25 ).

[ 38 ] The principles listed in sections 3 and 38 of the YCJA include the direction to consider the young person’s unique circumstances as an Indigenous person. In R v Anderson , 2018 MBCA 42 , Justice Mainella stated that the Gladue circumstances must be considered on both the first and second prongs of the test in

section 72. These circumstances may further reduce the already presumptively reduced moral culpability of the young person. Parliament incorporated

section 718.2 (

e) of the Criminal Code into the YCJA because it is mandatory that the young person’s unique circumstances as an Indigenous person be considered. At paragraph 62 of Anderson , Justice Mainella stated the following: One of the key aspects of deciding whether the presumption of diminished moral blameworthiness or culpability has been rebutted is the circumstances of the offender (see DB at para 77). Given the importance of the principle of restraint under the YCJA and related principles, such as the prospects for rehabilitation and safe reintegration into society, in my view, Parliament's intention for deliberately choosing to incorporate

section 718.2 (

e) of the Criminal Code into the YCJA was so that it would be mandatory that Gladue factors that may have played a

part in bringing the Indigenous young person before the courts, as well as sentencing procedures and sanctions that may be appropriate because of the offender's Indigenous background, would have to be considered in any sentencing proceeding under the YCJA , including both requirements for an adult sentence under section 72(1) of the YCJA .

Such an approach is consistent with Parliament's general desire to ameliorate the problems of overrepresentation of, and discrimination against, Indigenous people in the criminal justice system (see Sherri Davis-Barron, Youth and the Criminal Law in Canada , 2nd ed (LexisNexis, 2015) at 357-65). [ 39 ] If the Crown satisfies the Court that the young person essentially acted like an adult in committing the offence, exercising adult-like moral culpability and thereby rebutting the presumption of reduced moral culpability, the Court must then consider whether a youth sentence imposed pursuant to sections 3(1)(b)(ii) and 38 would be of sufficient length to hold the young person accountable for his offending behaviour. [ 40 ] This factor relates to accountability.

The Court must consider and weigh the same factors as they would for the imposition of a youth sentence. Generally, those factors include the rehabilitation and reintegration of the young person, whether the sentence will be meaningful and whether it will contribute to the long term protection of society. [ 41 ] Justice Steel explained the approach that should be taken in determining accountability, in R. v.

H.(C.T.) , 2015 MBCA 4 at paragraph 26 : For a sentence to hold a young person accountable, it must achieve two objectives: it must be long enough to reflect the seriousness of the offence and the offender’s role in it; and it also must be long enough to provide reasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society. Reasonable assurance does not mean proof beyond a reasonable doubt or absolute certainty. It means a reasonable prediction of future behaviour based on an evaluation of all the evidence.

If the sentencing judge finds that a youth sentence would not be long enough to achieve both of these goals, then an adult sentence must be imposed (see R. v. S. (Z.T.) , 2012 MBCA 90 (Man. C.A.) at para. 65 , (2012), 284 Man. R. (2d) 55 (Man. C.A.)). [ 42 ] I turn to the first prong of the test for imposition of an adult sentence. THE PRESUMPTION OF REDUCED MORAL CULPABILITY AT THE TIME OF THE OFFENCE, section 72(1)(

a) of the YCJA [ 43 ] As indicated above, the question to determine at this stage is an “assessment of the decision-making of the young person” in committing the offence, which requires careful fact-finding relating to the offence and the offender ( Okemow at paras 62-63 ). [ 44 ] The offence in this case was unplanned and impulsive, and not demonstrative of adult decision-making.

The evidence supporting H.M.’s reduced moral culpability is overwhelming. [ 45 ] I have determined the presumption of diminished moral culpability recognized for all people under the age of 18 is not rebutted in this case. [ 46 ] The Crown suggested that because H.M.’s age was so close to 18, being 17 years and seven months, it lends to the conclusion that he acted like an adult at the time of the offence. That argument carries no weight. The assessment under section 72(1)(

a) is not based on chronological age, no matter how close to 18 years the young person is at the time of the offence.

I note that the watershed case dealing with this issue by the Supreme Court of Canada, DB , involved a 17-year-old who also committed a manslaughter. [ 47 ] Moreover, not only is the presumption of reduced culpability in place on account of H.M.’s age at the time of the offence, his moral culpability is further reduced on account of his FASD, his low cognitive functioning and the circumstances of his life as an Indigenous person. [ 48 ] The defence correctly emphasized that the relevant time for assessing the moral culpability is at the time of the offence. [ 49 ] What we know about H.M., is that at the time of this offence he was a low-functioning 17-year-old with generations of trauma as an Indigenous person behind him, who was incapable of planning, controlling his impulses, or having a healthy, pro-social life.

H.M.’S Circumstances as an Indigenous Person [ 50 ] His family history tells the story of how colonialism destroys the lives of Indigenous people. He is a member of the Mememwi-ziibiing First Nation, also known by its English name of Berens River First Nation. He lived the first 11 years of his life in Berens River, but has virtually no connection with the land now. He does not speak the language.

As the Gladue report stated, H.M., his family members and his ancestors from the community of Berens River First Nation, who once lived within a harmonious environment that was based on balance and connection with each other and all things now exist within an environment that has been and

continues to be shaped by the colonial forces and processes of the Residential Schools experiences. [Emphasis in original.] [ 51 ] Elder Keith Berens, who was interviewed for the Gladue report, stated that the result of 100 years of abuse at the residential and day schools in Berens River First Nation is “ongoing sexual abuse, [and] excessive substance use in the community, of cocaine, cannabis, crystal methamphetamine and alcohol even though Berens is officially a dry reserve.” [ 52 ] H.M.’s maternal grandparents both went to the Roman Catholic Day School in Berens River, where his grandfather was sexually abused for years by nuns and brothers, and his grandmother was physically and emotionally abused.

H.M.’s maternal grandfather’s parents went to residential school, but did not talk about it. [ 53 ] When H.M. was a baby, his parents and siblings moved to Winnipeg and left him in the care of his aunt and uncle; he refers to them as his parents. His uncle was in custody on a manslaughter charge at the time of the writing of the Gladue report. He too attended residential school, the now notorious Marieval Residential School in Cowesses, Saskatchewan, where hundreds of unmarked graves of children were found last year.

H.M.’s uncle reported that he suffered emotional, mental, physical, spiritual and sexual abuse at the school. [ 54 ] When he was 11 years old, H.M. was sent to Winnipeg to live with his mother. As a child, she had been the victim of sexual, physical, emotional and mental abuse by her father, who was convicted of sexual assault against her. She was placed in the care of Child and Family Services as a teenager. She continues to suffer from these traumas and substance abuse disorder; she is transient and homeless. [ 55 ] H.M. was only taken to his home community three times after that.

He would cry and run away from the social workers and his uncle would have to go to the airport to ensure he would get on the plane. [ 56 ] Tragically, his parents and other siblings, with the exception of one sister, were not connected to H.M. His life was one of abuse and neglect and the family home was not a home. CFS records reviewed by the Gladue report writer, Mr. McKenzie, revealed that H.M.’s mother was suspected of running a brothel and the children were neglected, unkempt, without food, witnessed substance abuse and exhibited sexual behaviours.

Many details are horrifying, including finding used condoms on the floor and lice on the children. H.M. was placed in numerous foster homes, emergency shelters and group homes as a teenager. This began his involvement with the criminal justice system in 2018. [ 57 ] At the time of the manslaughter offence, H.M. had a youth criminal record from 2018 and 2019. He had four convictions for failing to abide by release conditions, two convictions for possession of a weapon and one conviction for mischief under. He told Mr. MacKenzie that since 2018 he had always carried a knife for his protection.

Subsequent to this offence, he was convicted of a robbery in 2021 and received the sentence of a 355-day Custody and Community Supervision Order (233 days secure custody; 122 days community supervision). [ 58 ] The best place he lived, in his opinion, was the Shawenim group home, because he was there with his younger brother, and the staff took the young people to activities like go-karting and to the beach.

The group home was also guided by Indigenous approaches, with designated Mother, Aunties and Uncles providing family to the children, he ate wild game, practised smudging, incorporated the teachings into stories and they attended ceremonies like sweat lodge, Sundance and pow-wows, which he enjoyed because at these ceremonies “there were a lot of people to hang out with” and “talk with”. This comment belies a hunger for connection with his culture and people. [ 59 ] Nonetheless, H.M. was a traumatized young person. He attempted suicide several times. Mr.

MacKenzie stated that “H.M.’s experiences of loss of connection with family members continue to impact him to this very day. His loss of family has been a result of many factors that are historical, legal, behavioural and emotional in causation.” [ 60 ] Mr. MacKenzie spoke to Dr. Chaze, the psychiatrist treating H.M. in custody. Dr. Chaze stated that, “Overall, he is a vulnerable individual, with limited capacity to manage his behaviour.” [ 61 ] Mitch Bourbonniere, RSW, MSW, is H.M.’s Action Therapist.

He stated that H.M. “is absolutely a product of the war that has been waged against Indigenous people in Manitoba and in [addition] suffers a compromised brain. All he has around him is trauma, wounding, a complete lack of any kind of healthy and prosocial attachment, inconsistent care provision.” [ 62 ] H.M. first used alcohol at age 17, encouraged by his brother. He drank a bottle of Captain Morgan rum and passed out. He was introduced to methamphetamine by his mother, which he used regularly up to the time of the manslaughter. [ 63 ] He has a very limited education. [ 64 ] He has little or no work history.

FASD and Cognitive Disability [ 65 ] H.M. was born with a brain injury that has disabled him for life. He was diagnosed with FASD in 2019. [ 66 ] His IQ is extremely low. H.M. was tested in 2011 at the age of eight through the Frontier School Division. On the Wechsler Intelligence Scale for Children (Fourth Edition) his full scale IQ was assessed in the “extremely low range” at 40. His adaptive functioning was also assessed at 40 (using the Adaptive Behavior Assessment System – 2 nd Edition).

His receptive and expressive communication skills are that of a five to six year old. [ 67 ] He is designated as a vulnerable person under the Vulnerable Persons Living with a Mental Disability Act .

[ 68 ] In the 2018 court-ordered forensic psychiatric assessment conducted for the purposes of a bail hearing, forensic psychiatrist Dr. Hildahl noted that H.M.’s IQ might be higher than noted in 2011, because he was not cooperative for much of the testing. In 2019, forensic psychologist Dr. Fisher assessed his full-scale IQ to be in the “extremely low” range at 55-65. He confirmed that the test profiles in 2021 were consistent with the earlier evaluation. [ 69 ] He was diagnosed with FASD by the multidisciplinary team at the Manitoba FASD Centre at the Health Sciences Centre.

The diagnostic formulation states as follows: . . . longstanding significant behavioural concerns and previously documented low cognitive functioning, in the context of significant prenatal alcohol exposure, as well as a history of early childhood difficulties, multiple placements, and neglect.

Comprehensive assessment has confirmed significant impairments in cognitive and adaptive skills, and further identified corresponding challenges with academics, memory, attention, and executive functioning. [H.M.’s] profile of strengths and challenges is recognized to be multifactorial in origin . [H.] functions much lower than age expectations as a result of his difficulties with thinking/problem-solving, as well as his challenges with executive functioning, which is what allows us to sustain our attention appropriately, self-inhibit when necessary, formulate a plan to tackle a problem, and think over something before acting. [Emphasis added] [ 70 ] For a diagnosis of FASD to be made, a person must have severe deficits in at least three domains of central nervous system involvement.

The FASD Court Docket

Summary lists six severe deficits: cognition, adaptive skills, memory, academics, attention and executive functioning. [ 71 ] Every psychiatric, medical, psychological and multi-disciplinary assessment filed in this matter reaches the same conclusion: H.M. is a young person with extremely diminished cognitive and functional abilities, who presents as low-functioning. Below are some descriptors of his functioning from the various reports: - “impressed as a cognitively delayed individual” - “presents with a blend of cognitive and adaptive functioning delays” (April 17, 2019 Court-ordered Forensic Assessment, Dr.

Garry Fisher) - presents as a “vulnerable individual with limited capacity to organize himself and manage his own behaviour.” - His criminal justice system involvement “likely reflect[s] the impact of poor coping and problem-solving abilities which in part may be due to an absence of learning these types of skills, and also are consistent with the types of challenges often experienced by individuals suffering from cognitive processing delays.

Further, his FASD diagnosis suggests a vulnerability to poor decision-making and impulsive responding particularly during moments of emotional upset or frustration.” - “[H.M.’s] difficulties seem to reflect the combined impact of difficult early life experiences, neurodevelopmental challenges, learning difficulties and behavioural problems as opposed to reflecting more significant traditional mental health problems.” - His test scores, which reflect severe deficits in the area of working memory, are consistent with people who fail to “verbally mediate their actions, thereby acting out impulsively, failing to give forethought toward the consequences of their behaviour for themselves or others, often fail to profit from experience. . .” - “He lacks sufficient internal self-controls to consistently make good behavioural decisions.” (February 18, 2021 Court-ordered Forensic Assessment, Dr.

Garry Fisher) - “Previous evaluations have noted impulsive and poor decision-making abilities. Beyond cognitive (intellectual) deficits, [H.M.]’s adaptive (daily living) skills have also been quite impaired. In considering his profile on a measure of adaptive functioning, significant concerns and underdevelopment compared to his same-aged peers were noted in [H.M.]’s self-direction abilities. These are connected to aspects of his functioning such ‘skills needed for personal responsibility, independence and self-control . . .’” (October 15, 2021 Court-ordered Forensic Assessment, Dr.

Garry Fisher) [ 72 ] Shelley Proven, Speech-Language Pathologist, assessed and prepared a report for this sentencing hearing. She is one of the team of specialists who conduct FASD assessments at the FASD Centre. Ms. Proven noted in her report that during the assessment, H.M. was discussing interests. He told her he had recently learned to bead and really enjoyed it. He showed her a photograph of his niece and another child in the family and he told her he was going to try to draw a picture of them on a piece of paper.

What follows is exemplary of H.M.’s constrained upbringing and education: When asked if he had liked drawing, he said he didn’t know what drawing was until a few months ago. The concept of drawing an object on a piece of paper appeared to be very foreign to [H.M.] and he was excited to explain this process to this examiner. [ 73 ] Ms. Proven found H.M. to be “quite dysmature and appeared to be much younger than his stated age”.

Her assessment report concluded that H.M.’s receptive and expressive vocabulary skills are severely impaired; most of his communication skills fall in the six to seven-year-old range. [ 74 ] The Crown argued that the cognitive testing was conducted in a clinical environment and applies only to his intellectual functioning, such as educational functioning, but is not illustrative of his well-developed set of “street smarts”. It is important not to conflate the “IQ testing” with all of the assessments that have been conducted with H.M. Although Dr. Fisher agreed that the IQ testing

alone is not reflective of how people cope in their day-to-day life because it is largely designed to assist in understanding how well someone will be able to do school work, that is only one part of the testing and assessment that H.M. has undergone. [ 75 ] The assessments conducted by Dr. Hildahl and Dr. Fisher were court-ordered forensic assessments to assist in the context of why this young person commits offences. In his testimony, Dr.

Fisher clarified that these reports have generally been done in a correctional setting and stated that young people tend to perform better in the correctional setting because they are aware it has been court-ordered and are sober, unlike a lot of young people whose assessments are conducted while they are out of custody. More pointedly, Dr. Fisher stated the following in his February 18, 2021 assessment report: On measures of attention regulation and executive functioning, continued deficits are found.

These challenges will affect several aspects of [H.M.’s] capacity to use intellectual resources in day-to-day situations . More specifically, impairments in his ability to generate good problem-solving and organizational skills, demonstrate capacity for working memory (keeping track of tasks as he completes them), in sequencing (organizing tasks into logical steps),and in his capacity to engage in shifting from one task or location to another may be problematic for him. There was also evidence of poor emotional control.

Typically, in formal testing situations or in an environment in which adults provide structure, organization, and prompting, similar adolescents often function well, but have greater difficulty in applying these abilities at an age-expected level and an adaptive manner when they need to do so independently. [Emphasis added] [ 76 ] It is clear from all the evidence presented in this case, that H.M. is not “street smart” to the extent that such a characterization might be relevant to his moral culpability.

In this way, he can be distinguished from the young person in R v Okemow , 2017 MBCA 59 , where the Court of Appeal upheld the adult sentence imposed, noting that the probation officer described Okemow as a “very street-wise young man” (at para 20). [ 77 ] The Crown has pointed to several instances of H.M. having been violent in the past, as well as since the time of the manslaughter. That is not necessarily relevant to the determination of his moral culpability.

If anything, it may point to his limited ability up to this point, of learning from his past mistakes, which is a significant characteristic of impaired executive functioning. [ 78 ] The offence itself demonstrates a lack of ability to self-inhibit. It was not planned. It demonstrates an impairment in his executive functioning. Carrying a knife is similarly characteristic of impairments to the ability to properly plan and inability to adapt to societal expectations and taking appropriate steps to avoid potentially negative outcomes. [ 79 ] Dr.

Fisher testified at this hearing that H.M. functions at a lower level than average for his age. He also testified that the combined FASD and ADHD made it very difficult to consistently make good decisions because he cannot think his way through them: A It’s going to be very difficult for him to find -- to make positive decisions consistently because I don’t know that he can stop and think through that here’s the situation, here are my options, which one of the bunch is the best? I think that’s the difficulty with impulsive decision-making, you don’t really think through all of your options, -- Q Okay.

A -- so that’s a coping and problem-solving challenge. Case Law Regarding Rebutting the Presumption of Reduced Moral Culpability [ 80 ] I contrast H.M.’s behaviour with that of the young person in DB , in which the Supreme Court of Canada majority found that the moral culpability was that of a young person and upheld the youth IRCS sentence. D.B. was also 17 years of age. He was with a group of friends at a mall in Hamilton and started exchanging insults with another group of young men. Two of them began to fight.

D.B. turned to the young man next to him and said, “You and me are going to fight right now.” The other young man said “no” and remained standing with his arms by his sides. D.B. then punched him on the right side of his neck and face and the young man fell to the ground, unconscious. D.B. continued to assault him by jumping onto him and then punching four more times on the face and neck. The friend of D.B. who had started the fighting went to the aid of the victim, but D.B. fled.

He was heard to comment about the one punch, then changed his clothes in a nearby restaurant, stowing them in an old knapsack and giving them to another person. He talked about the fight on the way back to one of his friends’ homes. At the sentencing hearing the Crown attempted to establish through evidence that he was bragging about the assault. That night, he went to a nightclub, leaving near closing time. On the way, he learned that the victim died. D.B. went to a friend’s place that night. The next day the police arrived. He attempted to flee out the back door but was apprehended.

He had frequent physical altercations with peers in the past and had been suspended from school numerous times for disruptive behaviour, verbal aggression and intimidation. During pre-sentence custody, he was involved in several assaultive incidents against other inmates and staff. He had previous convictions for stolen property and robbery, both involving threats and intimidation.

He was bound by two probation orders at the time of the offence. [ 81 ] Other than a mention of a history of mental health issues and behavioural problems in school, there is no comparison between the reduced moral culpability of D.B. and H.M. D.B. was not an Indigenous young person. He did not have an FASD diagnosis with severe impairments to his executive and adaptive functioning. He did not have an intellectual deficit so significant to be considered a “vulnerable person” statutorily.

[ 82 ] And yet, the youth sentencing judge found that he had rebutted the presumption of an adult sentence (as the onus prior to the Supreme Court’s treatment of this case was the reverse of what it is today) for the manslaughter, which is to say, his moral culpability was considered to be that of a young person. The Ontario Court of Appeal and the Supreme Court of Canada majority upheld the youth IRCS sentence. [ 83 ] Many cases were filed by both the Crown and defence involving the assessment of moral culpability of persons under the age of 18 who had committed serious offences.

There are distinguishing features in any case, because each case must be decided on its own facts and circumstances. But, I note that none of the cases filed by the Crown involved the multiple deficits and circumstances faced by H.M. that reduce moral culpability. [ 84 ] The closest case to H.M. was that of Okemow , who was also an Indigenous young person with a tragic background not dissimilar to that of H.M., and he also had an FASD diagnosis. I also note that he was extremely young, 14 years old, when the robberies with violence occurred. However, there were several distinguishing features about Okemow’s case.

He had a lengthy record with 13 prior sentences, including an assault with weapon. There were several instances of him threatening staff and inmates during his pre- sentence custody, where he threatened to kill them, and kill and rape their family members. It was Dr.

Fisher’s opinion that Okemow was not a good candidate for community-based supervision or correctional programming. [ 85 ] That is not the circumstance here. [ 86 ] The facts of the offence and the circumstances of the offender in this case can be contrasted to other cases where the Supreme Court, the Manitoba Court of Appeal and other courts have found that the presumption of reduced moral culpability was rebutted. [ 87 ] In R v Anderson , 2018 MBCA 42 , the 16-year-old young person, who was normal functioning, intellectually and educationally, was taking advantage of a mentally disabled 14-year-old girl (who functioned at the mental equivalent of a seven or eight-year-old) by surreptitiously having sex with her in the small community of Wabowden.

When his penis started bleeding during sex with her on one occasion, Anderson realized that he could be found out, since his penis started bleeding during sex with another girl in the community. He decided the best way to hide his “crime” was to kill her. He threw a heavy rock at her head as she was leaving, careful to handle the rock only with his finger tips to avoid a hand print. She fell. Seeing she was still alive, he struck her head three more times with the rock until he could see brain matter. Although the victim’s body was found the next day, it took three years before the accused was arrested.

During that time he continued to live in the community, graduated from Grade 12, and after high school moved to Thompson with his family and was working full-time. Both Dr. Fisher and Dr. Somers found his cognitive abilities and moral-reasoning capacity at the time of the offence to be normal. He showed no remorse for his offence. [ 88 ] The Court of Appeal found that the presumption of reduced moral culpability was rebutted in that case because of the circumstances of the murder and Anderson’s immediate cover up.

The decision to murder the victim was based on an exercise of judgment and foresight of the long-term consequences of what would occur to his reputation if the victim told others about him. Significant and brutal violence was intentionally inflicted on the defenceless girl to eliminate the risk to his own reputation. The Court noted that the innocence and guilelessness of the victim created a higher risk of discovery, because people would likely believe her.

The Court of Appeal also noted the fact that Anderson was not intoxicated at the time and did not suffer from any cognitive or other limitations. [ 89 ] The Court of Appeal also considered the fact that he exercised adult judgment when he covered up his involvement immediately after the murder, up to and including the first interview by police. This is significantly more sophisticated and adult-like in character than the facts in this case, where H.M. stole the victim’s credit card and I.D., threw them away and when he was arrested pointed the finger at his brother.

I would characterize H.M.’s actions as attempts to avoid detection as opposed to a cover-up, and it lacked any sophistication. [ 90 ] In this case, H.M.’s actions did not display the “critical thinking” that distinguished Anderson ’s case (at para 51 ). The young person in Anderson was also living an independent life, had graduated from grade 12 and had a job. There are also distinctions in Anderson ’s case with respect to the impact or the traumatic sequelae of the Gladue circumstances.

The Court found that Anderson ’s development was without emotional, psychological, or cognitive problems, nor had he suffered significant trauma as a child, unlike H.M. [ 91 ] In R v McClements , 2017 MBCA 104 , the offender was a member of the Mad Cowz gang. He and other members of his street gang encountered the deceased and his friends. The gang group surrounded the victim’s group to check on whether any of them were associated with the gang and one of them told the gang group that they were not in a gang and were from the “rez”.

The gang group then opened the circle surrounding the victim’s group and let them walk away. Most of the Mad Cowz walked away but McClements and four others followed the victim’s group and were walking single-file in a narrow space between two houses in Winnipeg. Despite being told not to do so by other members of the gang group, McClements followed the victim’s group. He pulled out a loaded semi-automatic handgun with a silencer. When he was six to eight feet away from the deceased he fired four to five shots into his back, killing him and wounding one of his friends, seriously injuring her.

The accused lived more or less independently, had no criminal record, and was not living under any parental or guardian authority. The Court of Appeal found that McClements ’ moral blameworthiness was high. His lifestyle prior to incarceration was independent and at a level that exceeds what would normally be typical of other 17-year-olds. The sentencing judge found that he was “functioning at a level of independence and maturity beyond his years” (at para 64).

He “did not suffer from any cognitive or emotional disability that would prevent him from appreciating the moral consequences of his actions” (at para 65). [ 92 ] The case of R v Chol , 2018 BCCA 179 , involved a shooting. Chol’s group was with a rival group when one of the rivals physically threatened one of Chol’s group. Chol shot and killed him with a nine-millimetre Beretta semi-automatic pistol. He was on two weapons prohibition orders at the time and had a lengthy record for use of firearms and machetes.

When he was arrested for this offence 10 days later, he was carrying the same gun loaded with nine cartridges in the chamber and the safety catch off. Although Chol, 17 years old, had circumstances that might otherwise reduce the assessment of his moral culpability (cognitive limitations including a possible diagnosis of mild-retardation and a psychiatric report that described him as naive, immature and unsophisticated), it appears the nature of the offence convinced the British Columbia Court of Appeal that the Crown had rebutted the presumption of reduced moral culpability. I

also note that by the age of 12, Chol was associating with older negative peers and skipping school. He had not functioned as anadolescent for many years and was “functioning on par with older criminally-entrenched youth or severely anti-social adults aged 18-20”,according to the psychiatric opinion provided to the Court (at para 52).

Summary Regarding Rebutting the Presumption Of Moral Culpability [93] In

summary, at the time of the offence H.M. was not living like an adult, and to the extent that he was without significant adultsupervision and guidance, that was not by choice. His previous offences and background must be seen through the lens of the traumaoccasioned by his circumstances as an Indigenous person. At the time of the offence he was dependent on the State and on others andwas vulnerable to the influence of others, particularly his drug-addicted mother. He has had, and has, FASD and significant cognitivelimitations. The nature of these limitations inform his level of maturity and youthfulness.

As for the circumstances of the offence, it wasimpulsive. It was not planned. The motive for the offence is suggestive of immature reasoning. His actions did not demonstrate criticalthinking nor adult-like judgment.

The steps taken subsequent to the offence were to hide his involvement but were very unsophisticated.He initially did not take responsibility for the offence but eventually demonstrated significant remorse. [94] I recognize that H.M.’s low cognitive functioning and FASD diagnosis alone reduce his moral culpability for this offence andthat adult sentences have been imposed for serious violent offences on young offenders who have mental health diagnoses and cognitivelimitations (R v M(J), 2020 MBPC 13 at para 153, and Chol at para 61).

In this case however, I am satisfied that the circumstance ofthese diagnoses very much affect H.M.’s maturity and militated against his decision-making at the time of the offence and after, such thathe was acting like an immature young person as opposed to a cognitively-impaired adult. [95] This could end the inquiry, as the Crown has not satisfied me on the first prong of the test in section 72(1) that the presumptionof reduced moral culpability is rebutted. Nonetheless, I will consider the second prong of the test, that is, whether the maximum youthsentence is adequate to hold him accountable.

IS THE MAXIMUM YOUTH SENTENCE ADEQUATE TO HOLD H.M. ACCOUNTABLE – section 72(1)(

b) YCJA [96] The Ontario Court of Appeal in R v O(A) (2007), 2007 ONCA 144 , 218 C.C.C. (3d) 409 explained how a judge is todetermine whether a sentence will hold a young person accountable: ...for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, “themoral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by theoffender, and the normative character of the offender’s conduct”. We see no other rational way for measuring accountability.

The need to consider the normative character of an offender’s behaviour necessarily requires the court to consider societal values. (atparas. 47 – 48) [97] As the Manitoba Court of Appeal explained in Okemow and Anderson, “[A]ccountability is to be determined by examining theyoung person’s degree of moral culpability in light of his intentional risk-taking, the consequential harm he caused and the normativecharacter of his conduct” (Anderson at para 93).

The intentional risk taking here was significant, insofar as H.M. pulled a knife andstabbed the victim in the chest, thereby guaranteeing death or serious injury. But as discussed fully in the previous section, H.M. did notappreciate that risk. We cannot confidently assess his intentional risk-taking behaviour, in light of the severe deficits to his brain’sprocessing speed, fluid reasoning, impulse control, inhibition and working memory. [98] The consequential harm that was caused by this violent action has been wide-ranging.

The death of the victim has devastatedhis extended family and friends. [99] It is at this juncture, important to outline some of the details from the victim impact statements. [100] The family and friends of Joshua Hansen bore witness to this hearing throughout. They shared their pain and loss with the Courtbravely through their victim impact statements. They also shared the loss and the hole that has been left in their lives. Joshua Hansen,from all these accounts, was a loving, kind, joyful and talented 29-year-old young man and proud member of the LGBTQ community.

He was very involved in the lives of his family. Mr. Hansen’s mother, herself a residential school-survivor and woman who grew up inthe foster care system, talked of her heart being shattered the day she learned her joyful, two-spirited son was killed. She has gone frombeing a happy, loving mother to a woman who sleeps two hours a night, who has been diagnosed with depression and anxiety, who seescounsellors regularly and has joined a bereavement group.

The younger sister of the victim talked of the loss of her older brother inpoignant terms, how they would never travel the world together, how she is now the only child to her mother, how Joshua, who lovedchildren and to whom children gravitated, would never have children. She suffers from PTSD and has relocated from Winnipeg.

Mr.Hansen’s father’s statement was also poignant and heart-breaking: “The day Josh was so violently ripped away from us, was the day wewere robbed of someone precious.” [101] Three of his aunts also provided victim impact statements, in which they wrote about missing the closeness of cooking together,going for walks, watching movies, and a loss of security; the loss of a cousin to their children, and the fear one of the nieces nowstruggles with. His step-father wrote a moving statement.

His best friend told the Court about Joshua Hansen’s wackiness, eccentricities,his passion for music, and let H.M. know that he will be etched in Raymond’s mind as the person “who blew the light out of the candlethat could light up a room.” [102] To these beloved members of Joshua Hansen’s circle, I want you to know I heard you. I thank you for your victim impactstatements. I know that nothing I can decide will change the fact of this hole left in your lives. [103] But I must decide this issue on the basis of the law.

[ 104 ] The normative behaviour of H.M. was egregious; a precious life was taken. [ 105 ] The accountability analysis must include the young’s person’s moral culpability.

I have already determined that H.M.’s moral culpability in committing this terrible offence was much reduced on account of his FASD, his low cognitive functioning and his circumstances related to him being an Indigenous person. [ 106 ] I will not repeat the severe impacts to H.M.’s moral culpability on account of his FASD diagnosis, his low cognitive functioning and the traumatic and constraining circumstances of his circumstances as an Indigenous individual ( see Anderson at para 91 , where Justice Mainella stated that the Gladue principles do impact the determination with respect to accountability).

Unlike the case of Anderson , the Gladue and other factors affecting H.M. do much to explain his impulsive decision to pull a knife and stab someone who might have been perceived as a threat or insulting. Unlike Anderson, H.M. demonstrated no capacity to be a contributing member of society. He did not study, did not finish high school, did not work and is generally not law-abiding. Moreover, he was extremely intoxicated at the time of the offence, prior to the offence and subsequent to the offence.

The Youth Sentence Being Proposed: IRCS [ 107 ] The sentence being proposed by the defence is a three-year IRCS sentence pursuant to section 42(7) of the Youth Criminal Justice Act . H.M. is eligible to receive this sentence because the criteria are met in his case. 42(7) A youth justice court may make an intensive rehabilitative custody and supervision order under paragraph (2)(

r) in respect to a young person only if (

a) either (

i) the young person has been found guilty of a serious violent offence . . . (

b) the young person is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance. Because the offence in this case is one of manslaughter, the maximum IRCS sentence that can be imposed is three years pursuant to section 42(2)( r )(i)(B). [ 108 ] Pursuant to section 42(7)(

c) and ( d ), the Provincial Director determined that an IRCS program is available and that H.M.’s participation in the program is appropriate, a plan of treatment and intensive supervision has been developed for H.M. and there are reasonable grounds to believe that the plan might reduce the risk of him repeating the offence or committing a serious violent offence, pursuant to s. 42(7)( c ). [ 109 ] Jennifer Harlos, the executive director of the IRCS program testified, and the IRCS treatment plan was filed as an exhibit in this court.

Although H.M. had some difficulties in custody, particularly at the beginning of his pre-sentence custody, he is continuing to improve and his prospects for rehabilitation and reintegration are guardedly optimistic. [ 110 ] The question on this application is whether the IRCS sentence in combination with the pre-sentence custody H.M. has already served, are lengthy and adequate enough to hold H.M. accountable for the crime. [ 111 ] The individualized IRCS plan was developed with the collaboration of the IRCS treatment team, which is comprised of the following: Tyler Hildebrand (Senior Unit Officer, Agassiz Youth Centre), Mitch Bourbonniere (Action Therapist), Karly Richter (Mental Health Nurse, Agassiz Youth Centre), Andrew Vergara (Probation Officer), Matthew Scales (FASD Justice Program), Crispina Lendero (Case Manager, Community Living disAbility Services), Claudia Sanchez (Social Worker, Southeast Child and Family Services), Rick Paskaruk (Supervisor, Southeast Child and Family Services) and Crystal Wilson (Education Coordinator).

The IRCS team and the plan is based on all the information that the team had from pre-sentence reports, the FASD multidisciplinary assessment, forensic reports, the statement of agreed facts, and H.M.’s probation file, including the LS/CMI risk assessment which rates him at a high risk to reoffend. [ 112 ] In addition to IRCS treatment plan which is an intensive form of custody and community supervision, I must consider that H.M has been in custody since August 16, 2020. He served his robbery sentence in custody to warrant expiry. Since the completion of that sentence, he has spent a further 295 days in custody.

If I consider only that portion of time where he was not serving a sentence for robbery, the time credited at the usual rate of one and one-half days for every day spent in custody would total 443 days, or one year and two and one-half months. [ 113 ] This is the first time that H.M. has been in custody for a lengthy period of time.

He has been sober, has had consistent structure and support, and has begun his rehabilitation. [ 114 ] In order for me to consider whether the IRCS sentence, plus the time he has already spent in custody is sufficient to hold him accountable for his offending behaviour under section 72(1)(b), I must consider the length of the sentence. I note that is essentially a four year, two and one-half month sentence.

But I am mindful of the fact that his time in custody since his arrest on the manslaughter has actually been over three years. [ 115 ] A sentence of over four years is long enough to reflect the seriousness of this offence and H.M.’s role in it. [ 116 ] I must also consider whether the length and nature of the sentence is long enough to provide reasonable assurance of his rehabilitation to the point where he can be safely reintegrated into society. [ 117 ] Unlike many of the cases where an adult sentence was imposed, it was Dr. Fisher’s opinion in this case, that “from the

perspective of needs intervention, the range of programs and supports available within the youth corrections system should be sufficient to address the range of needs that can be met while incarcerated.” (Court-ordered Forensic Assessment, October 15, 2021). Dr. Fisher is well-placed to provide this opinion, given his extensive work for decades in the youth criminal justice system.

I pause to note that I am accepting this opinion not as “expert opinion evidence” but as helpful evidence to assist in sentencing, as recognized in the YCJA . [ 118 ] The defence provided a helpful comparison between H.M.’s behaviour when he entered custody two years ago, to the present: When [H.M.] entered custody he was a boy who required reminders to shower and practice hygiene (FASD report page 4 of 7, second paragraph); who ate until he felt sick (page 4 of 7), who was bullied by other inmates, vulnerable and tried to present himself as a tougher, stronger version of himself.

Prior to entering custody he had ongoing struggles wetting the bed, hoarding food in his room, and outbursts at school. [H.M.] also as we can see, has had a difficult time in custody. When he’s upset and frustrated he covers his windows, he’s had trouble with emotional regulation, and had trouble with jealousy of other inmates’ phone calls and activities. [ 119 ] The Crown filed four large volumes containing all the Corrections records of H.M.

The Crown pointed to several incidents which they argued were demonstrative of H.M.’s maturity and the inadequacy of a youth sentence for him. [ 120 ] A review of the records demonstrates that H.M.’s behaviour in 2020 and 2021 was difficult and challenging, but has been steadily improving. My review of the incidents do not leave me convinced that H.M. was acting like an adult.

Quite the opposite, I am convinced after reading the instances of his aggressive and threatening behaviour while in custody that he was behaving more like a traumatized and ill-equipped teenager. [ 121 ] For example, the Crown cited an incident from May 11, 2021, where H.M. was covering the windows in his cell and said he would stab whomever entered. A year later, on May 15, 2022, he covered his window momentarily then took the towel down almost immediately and admitted that covering his window was not a good thing to do and took responsibility.

He came out with his group after supper and carried on with his evening. [ 122 ] I agree with the defence that this demonstrates the beginnings of self regulation, admitting to wrongdoing, seeing why it was wrong and taking responsibility. An entry from April 13, 2022 shows that H.M. was appreciative to be approved to have a pencil in his room and was very stable at the time. An entry from May 1, 2022 indicates that H.M.’s emotional status was good for the most part and although he was influenced by peers’ negative behaviour, he was able to quickly refocus and make good choices.

A note from May 6, 2022 indicates that H.M. was crying after speaking to his father on the phone; he talked with staff about being stressed and how to manage stress, he was able to move forward and went to bed without incident. A note from May 10, 2022 noted that his hygiene was good, he was in good spirits and was polite and respectful. On May 11, 2022 H.M. played catch and basketball with his group, took some books out at the library, appeared to be getting along well with the other group members and was in good spirits.

On May 12, 2022 he was noted to be fitting in well and stated that he was happy with the group. [ 123 ] These examples demonstrate that rehabilitation is possible with appropriate structure and therapeutic intervention. [ 124 ] H.M. has also been doing considerable rehabilitative work in custody, with the Program Director at Agassiz Youth Centre, and most particularly the FASD-specific project, “This is Me – My Life Book.” The book is part of the Understanding Youth with FASD and Making Accommodations Project designed to help young offenders diagnosed with FASD, and the people with whom they come in contact.

Young people are encouraged to describe what makes them angry and what helps to calm them down. Typical

chapter titles are: what I want people to know about me; my learning style; my goals and plans; my circle of support; and, what helps me have a good sleep. In creating the book, youth learn about themselves, make sense of their world and learn to communicate effectively with others. [ 125 ] Since April 2022, the Program Director has tried to meet with H.M. every day and as of the hearing date, all the interactions had been positive.

H.M. has been able to discuss and articulate some of his daily struggles, identify some strengths, communicate his thoughts and feelings and, through the process, he and the Program Director have gained insight into his behaviours and the situations that have been problematic for him. [ 126 ] H.M. continues to struggles in large group situations, as was noted by Dr.

Fisher, which is addressed in the IRCS treatment plan. [ 127 ] The defence advised that since H.M. has been working on this project with the Program Director at Agassiz Youth Centre, it has been demonstrated to her that H.M. struggles with words, is unable to explain himself and will say things he does not mean. This is consistent with the FASD Multidisciplinary assessment and with the speech and language assessment of Ms. Proven.

So for example, although the Crown has emphasized that H.M. stated, “I’m glad I killed the guy, I can go to adult,” the defence advised that H.M. does not mean this and the comment was made in frustration. [ 128 ] I note that it is not consistent with the remorse he has shown throughout since the manslaughter. [ 129 ] H.M. has also completed several workbooks, including on the issue of substance abuse (he has also been working with his Action Therapists on this issue while in custody), anger, antisocial personality and he has set goals for completion of these workbooks with his case manager and through his case plan. [ 130 ] He also has been working on his educational goals in custody: He recently completed booklets in mathematics and English Language Arts and has been attending school in custody [ 131 ] He also participates in athletic activities, and cultural activities such as drumming.

[ 132 ] In imposing a fit and appropriate sentence, including a consideration of whether a youth or adult sentence is appropriate, the Court must again consider the directive of the Supreme Court and Parliament to consider the consequences of incarceration for another Indigenous youth or young person.

The defence stated the following eloquently in their argument: In our submissions yesterday we discussed the sad reality of corrections in Manitoba, the devastatingly high numbers of Indigenous youth and adults in corrections and the fact that Indigenous people are more likely to be assessed a high risk to reoffend, less likely to be granted parole and more likely to be placed in segregation. The Supreme Court has said the criminal justice system has failed Indigenous People in Canada and they described the overrepresentation as a crisis.

The crisis is not that Indigenous people commit crimes – the crisis is that, the response to this crime disproportionately results in incarceration for Indigenous people. This is sadly not new, The Report of the Aboriginal Justice Inquiry of Manitoba,

Chapter 4: the Justice System and Aboriginal People, in the conclusion stated: A century of paternalism and duplicity in government policies has had disastrous consequences. Canada’s original citizens have lost much of their land and livelihood, family life has been ruptured, and community leadership and cohesion have broken down. These policies have left many Aboriginal people not only impoverished, but also dependent and demoralized.

These government policies must also be held ultimately responsible for a good portion of the high rates of Aboriginal crime, which are the almost inevitable result of social breakdown and poverty. [ 133 ] The IRCS plan is comprehensive and therapeutic and so it is not simply the case that H.M.’s past performance while on judicial interim release, or probation is determinative of his future success.

His recent behaviour in custody and the rehabilitative efforts he has undertaken are better barometers of whether the IRCS sentence is sufficient to hold him accountable. [ 134 ] He has formed significant relationships while in custody with personnel from the FASD Justice Project, with Mr. Bourbonnier and the other personnel from Action Therapy, has continued his supportive relationship with his former foster mother, and has developed a relationship with his CFS social worker.

I note that all of these individuals attended the sentencing hearing in support of H.M. [ 135 ] The defence advised that he has stated a goal for his adult life of finishing the IRCS sentence, leaning on his supports and eventually trying to become a commercial fisherman in his home community.

He is committed to engaging with programming, remaining in Winnipeg at a CLdS placement and to continuing his current path of success with school, programming, sports and cultural activities. [ 136 ] IRCS brings with it significant funding for rehabilitative services not available through CFS and CLdS, such that H.M. will be provided significantly more service and supervision to safely reintegrate into society.

H.M. will be provided with wrap-around support from Action Therapy, accessible to him on a 24-hour basis for support including crisis intervention if he is angry, upset, frustrated, or is giving any indication of hurting himself or others. He will have available interpersonal counselling; assistance with education and employment; connection to his culture, ceremonies and traditions; and creation of a positive community to surround him. [ 137 ] The Action Therapy activities available are land-based therapy, engagement in volunteerism and positive citizenship.

They will work with the Bear Clan and develop community volunteer placements [ 138 ] Most of the programming and funding that comprises the IRCS sentence is new and provides more rehabilitative and reintegrative potential than has ever been available to H.M. [ 139 ] I am satisfied that the combination of the wrap-around Action Therapy, the CLdS Level 7 housing placement, educational programming involving a tutor, athletic programming, vocational/employment programming, substance abuse programming, volunteering, and a deeper understanding of H.M.’s cognitive and intellectual functioning, makes the proposed three-year IRCS sentence fit and appropriate because I am satisfied that it, along with the time he has already spent in custody, is meaningful and will hold him accountable. [ 140 ] Although it is not necessary to compare the adult sentence proposed by the Crown, I agree with the defence that it is not clear how the eight-year sentence proposed would hold H.M. accountable and achieve any sentencing goal other than separation from society and denunciation.

There is no information before the Court on how protection to the public could be achieved by such a penitentiary sentence, instead it would preclude H.M.’s connection with the Action Therapy team, would remove CLdS, would take him out of his CBT and FASD programming and would take him out of school. [ 141 ] I also share the defence comments about the milieu in the federal penitentiary system, especially for a vulnerable young man with FASD: . . . it is a place that does exactly what the Crown has concerns about – entrenches people in a criminal lifestyle, promotes violence, allows for negative influences to overtake and for glorification of things such as gang membership, if only for protection in the institution.

And the sentence requested is very lengthy for an adult, let along a young offender with a number of mitigating factors and a reduced moral blameworthiness. It would truly signal the end of the road for [H.M.] [ 142 ] I am satisfied that not only is a youth sentence of sufficient length to hold H.M. accountable for his offence, but also the IRCS sentence ensures a highly supportive transition into the community which can achieve all sentencing objectives of the YCJA , ensuring rehabilitation and ultimately reintegration in a manner that takes into consideration long-term public protection.

Moreover, it is culturally appropriate and reconnects H.M. with what has been taken from him and his family for so many generations, so in that sense is a restorative sentence.

[ 143 ] I am satisfied that there are reasonable grounds to believe that the treatment and intensive supervision developed in the IRCS plan might reduce the risk of H.M. repeating or committing a serious violent offence. DECISION AND SENTENCE [ 144 ] The

[…]