Her Majesty the Queen - v. -, 2012 SKPC 22

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2012 SKPC 022 Date: February 2, 2012 Information: Y313789 Location: Carrot River _____________________________________________________________________________ Between: Her Majesty the Queen - and - R.L. Appearing: Mr. Tom Healey For the Crown Mr.

Brian Pfefferle For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ SENTENCING DECISION B. MORGAN , J _____________________________________________________________________________

I. INTRODUCTION [1] In a previous decision (2011 SKPC 96 , 2011 SKPC 096), delivered on July 22, 2011, I found R.L. guilty ofdischarging a firearm with intent to wound Gregory Toogood, contrary to s. 244(2)(

b) of the Criminal Code. [2] On March 23, 2011, prior to pleas being entered, Mr. Healey had provided notice to the Court and the young person that, inthe event a conviction was entered, the Crown would be seeking to have the Court make a judicial determination that this matter was aserious violent offence.

On that date, the Crown also gave notice that if the young person was found guilty, the Crown would be seekingto have him sentenced as an adult. [3] Section 42(9) of the Youth Criminal Justice Act (YCJA) states as follows: 42(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties anopportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence andendorse the information or indictment accordingly. [4]

Section 2 of the YCJA defines a “serious violent offence” as follows: “serious violent offence” means an offence in the commission of which a young person causes or attempts to cause serious bodily harm. [5] In R. v. C. D.; R. v. C.D.K., 2005 SCC 78, [2005] 3 S.C.R. 668, 34 C.R. (6th) 323, 203 C.C.C. (3d) 449, the Court adopted aprior definition of serious bodily harm, and stated: Specifically, Cory J. held that “serious bodily harm” is “any hurt or injury, whether physical or psychological, that interferes in asubstantial way with the physical or psychological integrity, health or well-being of the complainant”.

I see no reason why this definitionof “serious bodily harm” should not also be used for purposes of the YCJA, and, in particular, for purposes of the definition of “seriousviolent offence” that is found in s. 2(1) of the Act. (See para. 20.) [6] I will review the facts in

summary form later in this sentencing decision. However, for the purposes of the s. 42(9)application of the Crown, there is really no dispute that the offence falls within the definition of a “serious violent offence”. The defencedoes not take issue with this, and as such, I made a determination, on the date the decision was delivered, that the offence I found R.L.guilty of under s. 244(2)(

b) of the Criminal Code is a serious violent offence. II.

APPLICATION FOR AN ADULT SENTENCE [7] With respect to the application for an adult sentence, s. 64(1) of the YCJA reads as follows: 64(1) The Attorney General may, following an application under subsection 42(9) (judicial determination of serious violent offence), ifany is made, and before evidence is called as to sentence or, where no evidence is called, before submissions are made as to sentence,make an application for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of anoffence, other than a presumptive offence, for which an adult is liable to imprisonment for a term of more than two years, that wascommitted after the young person attained the age of fourteen years. [8] The minimum sentence to which an adult is liable to imprisonment upon conviction of an offence under s. 244 is four yearsincarceration.

The offence for which the young person was convicted occurred when he was 16 years of age. It is not a presumptive

offence. Thus, the required criteria has been met. [ 9 ]

Section 71 of the YCJA states as follows: 71 The youth justice court shall, at the commencement of the sentencing hearing, hold a hearing in respect of an application under subsection 63(1) (application for youth sentence) or 64(1) (application for adult sentence), unless the court has received notice that the application is not opposed. Both parties and the parents of the young person shall be given an opportunity to be heard at the hearing. [ 10 ] On July 22, 2011, Mr.

Pfefferle, on behalf of the young person, notified the Court and the Crown that his client was opposed to the Crown’s application. [ 11 ] The test the Court is to apply in determining whether or not to impose an adult sentence is set out in s. 72 of the YCJA , as follows: 72(1) In making its decision on an application heard in accordance with

section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and (

a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and (

b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant.

(3) In making its decision, the youth justice court shall consider a pre-sentence report.

(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.

(5) For the purposes of an appeal in accordance with

section 37, an order under subsection (1) is part of the sentence. [ 12 ] Subparagraph 3(1)(b)(ii) states as follows: 3(1) The following principles apply in this Act : (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity. [ 13 ]

Section 38 of the YCJA reads as follows: 38(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

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

section 3 and the following principles: (

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

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

committed in similar circumstances; (

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

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

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

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

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

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

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

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

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

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

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 14 ] In R. v. F. (B.C.) , 2008 SKPC 98 , 326 Sask. R. 77, Judge Halliday of this Court set out, at paragraph 16, an approach that she felt was useful in looking at a s. 72 application. In R. v. A.(S.J.) , 2010 SKPC 112 , Judge Gray of this Court followed that same format. The approach is as follows: 1) Upon receipt of an opposed Crown application for an adult sentence, the Court must order at least a pre-sentence report and hold a hearing. 2) The Crown bears the onus throughout the proceedings. 3) Within the context of

section 72, the Crown must prove disputed facts on which it seeks to have the Court rely beyond reasonable doubt. Disputed aggravating circumstances must also be proven beyond reasonable doubt. 4) The Crown is not required to satisfy the Court that a youth cannot be rehabilitated by a youth sentence. 5) Except where disputed, the contents of court-ordered reports form part of the record for the Court to consider. 6) The ultimate issue in paragraph 72(1)(

b) does not fall within the category of disputed facts or disputed aggravating circumstances. It does not lend itself to proof beyond reasonable doubt. The determination of the ultimate issue requires the Court to make an “evaluative decision” or an “informed judgment” in the formulation of its opinion. The phrase “is of the opinion” does not equate to the level of certainty that attaches to the requirement of proof beyond reasonable doubt. 7) The Crown’s onus is to satisfy the Court that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 of the YCJA would not have sufficient length to hold the young person before the Court accountable.

8) It is not useful to categorize the onus in terms of its weight. However, it is imperative to consider applications for adult sentences asmatters of the utmost seriousness involving severe consequences for young persons flowing from the loss of entitlement to a youthsentence. 9) The Court must weigh and balance the factors in subsection 72(1). Depending on the nature of the case, some factors may assumemore importance than others. However, each factor must be properly considered.

The Court must formulate its opinion on thesufficiency of the length of a youth sentence to achieve accountability for the young person before the Court. 10) In assessing accountability, the Court must start from the principle of presumed diminished moral culpability as identified by theSupreme Court and as reflected in subparagraph 3(1)(b)(ii) and

section 38 of the YCJA. Pursuant to the YCJA, accountability is fair andproportionate accountability consistent with a particular young person’s greater dependency and reduced level of maturity. In youthsentencing, these reduced capabilities are reflected in just sanctions having meaningful consequences for a particular young personwhich promote rehabilitation and reintegration into society, thereby contributing to long term public protection. These reducedcapabilities are also reflected in sanctions imposed pursuant to subsections 38(2) and (3). Accountability, in the context of

section 72,involves the concept of a meaningful consequence together with rehabilitation and reintegration for a particular youth with individualizedcircumstances who has committed a particular crime. In this context, accountability is the young person’s equivalent of the adultprinciple of retribution.

As does retribution, accountability represents an objective, reasoned and measured determination of a sentenceproperly reflecting the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequentialharm caused by the offender and the normative character of the offender’s conduct. 11) If the Crown satisfies the Court that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph3(1)(b)(ii) and

section 38 of the YCJA would not have sufficient length to hold the young person accountable, the presumption ofdiminished moral culpability is rebutted and the young person loses entitlement to a youth sentence. The Court shall then order that anadult sentence be imposed. [15] In R. v. S.(C.), 2008 NSPC 22, 848 A.P.R. 235, 265 N.B.R. (2d) 235, Judge Williams of the Nova Scotia Provincial Courtdealt with the accountability aspect as follows: [13] The focus is on the length of sentence necessary to hold CS accountable for her offending behaviour. Furthermore,

section 38 ofthe YCJA requires that youth be held accountable in a certain way. They are to be held accountable through the imposition of justsanctions that have meaningful consequences for them and that promote their rehabilitation and integration back into the community.

When one is considering whether or not a youth sentence would be sufficient to hold a young person accountable within the meaning ofsection 72, the youth sentence, to be acceptable, must not only be long enough to reflect the seriousness of the offence before the Courtand the accused’s role in it, but it must also be long enough to provide some reasonable assurance of the accused’s rehabilitation to thepoint where he can be safely reintegrated into society.

It need not and indeed cannot guarantee rehabilitation. [14] I agree that the purpose of accountability would seem to exclude accountability to society in a larger sense and that it would alsoexclude any notion of deterrence or denunciation: [R. v. O.A., supra (2007 ONCA 144, 222 O.A.C. 38, 218 C.C.C. (3d) 409, 84 O.R.(3d) 561)] at par. 42. I agree as well that this view of accountability is consistent with the “offender-centric” nature of youth sentencingas identified by the Supreme Court of Canada in R. v.

N.(B.) (2006), 2006 SCC 27 , 209 C.C.C. (3d) 97 (S.C.C.) wherein thecourt held that general deterrence is not a factor in youth sentencing. [16] In R. v. B.(D.), 2008 SCC 25, 56 C.R. (6th) 203, 231 C.C.C. (3d) 338, 293 D.L.R. (4th) 278, [2008] 2 S.C.R. 3, the SupremeCourt was dealing with a presumptive offence, in which a youth was applying to be sentenced as a youth, rather than as an adult.

Although dealing with what would be in effect the flip side of this application, the comments made by Abella J. for the five / fourmajority bear repeating: [41] 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 moraljudgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle atissue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment. ... [44] This statutory preoccupation with ensuring that sentencing reflects the reduced maturity and moral sophistication of young persons,guided this Court in R. v.

D. (C.), 2005 SCC 78 , [2005] 3 S.C.R. 668, 2005 S.C.C. 78, where Bastarache J. noted the YCJA’sgoal to “send a clearer message to those involved in the youth criminal justice system about restricting the use of custody for youngoffenders” (para. 48).

Bastarache J. concluded that “the object and scheme of the YCJA, as well as Parliament’s intention in enacting it,all indicate that the YCJA was designed, in part, to reduce over-reliance on custodial sentences for young offenders” (para. 50). [45] These considerations reveal that the approach to the sentencing of young persons is animated by the principle that there is apresumption of diminished moral culpability to which they are entitled. Like all presumptions, it is rebuttable.

Under the presumptiveoffences sentencing scheme, it is the young person himself or herself who is required to prove that the presumption should not berebutted, rather than the Crown who is required to show why it should be. The constitutional implications of this reversal of the onuscreate the legal knot we are asked to untie.

To do so, we must first determine whether the principle of a presumption of diminishedculpability is one of fundamental justice within the meaning of s. 7 of the Charter. [17] In answering that question, at paragraph 68, Abella J. noted: [68] The preceding confirms, in my view, that a broad consensus reflecting society’s values and interests exists, namely that the principleof a presumption of diminished moral culpability in young persons is fundamental to our notions of how a fair legal system ought tooperate. [18] I repeat this at some length for a number of reasons.

The first is that it must be made abundantly clear that the processinvolves, at the first stage, an analysis of the enumerated factors in s. 72. There is a clear statutory process in place which must befollowed. [19] The second point I raise is that the concept of diminished moral responsibility runs through the entire Youth Criminal JusticeAct. As the Supreme Court points out, it is a presumption that can be rebutted.

However, as Judge Halliday points out, one must not losesight of the fact of the serious consequences of taking away from a youth that presumption of diminished moral capacity. [20] The third point I make is that, if, after a careful consideration of the enumerated factors in s. 72 of the YCJA, I determine that ayouth sentence would not be of sufficient length to hold the young person accountable, I would then sentence using the regular adultsentencing regime set out in sections 718 onwards of the Criminal Code. [21] Against that background, then, I will review the enumerated factors under s. 72(1).

a) The seriousness and circumstances of the offence [22] On behalf of the Crown, Mr. Healey argues that it is appropriate to examine this factor in two ways. He argues firstly that itis appropriate to look at the maximum penalty for the various offences before the Court, as set out in the Criminal Code. He points outthat the offences that the youth did plead guilty to carry maximum sentences of 10 to 14 years, and that the minimum sentence that anadult can receive for the s. 244 offence is a four year jail sentence.

Whereas I appreciate that does indicate Parliament’s view of theseriousness of the offences in issue, I also point out that those are for adult sentences, and it is important to guard against putting toomuch emphasis on the maximum and/or minimum adult sentences, as the initial question is, as set out earlier, whether or not a youthsentence would have sufficient length to hold the young person accountable for his or her offending behaviour.

I also note that thesentencing regime for youth is, to a large extent, totally separate from the Criminal Code, subject to the comment that, if I decide toimpose an adult sentence, the Criminal Code provisions take on more meaning.

[ 23 ] I prefer to focus more on the circumstances of the offence in assessing the seriousness of it. On that point, as Mr. Healey points out, the fact of the shooting is “unsettling” in and of itself. Without repeating all of the facts set out in my earlier decision, I will summarise them for the purposes of this sentencing decision. [ 24 ] Cst. Toogood was and is a member of the Royal Canadian Mounted Police. As part of his duties, he had learned that R.L. and some other young persons were involved with the theft of some liquor from a garage. Cst.

Toogood was prepared to have the matters dealt with through the alternative measures program, which would divert the matter out of the court system if the young persons took responsibility for the theft, but as a precondition to that, he felt it was important that R.L. tell his father about the theft. R.L., who had had an extremely unhappy childhood with his mother, prior to coming to live with his father at age eight, was extremely reluctant to tell his father of the theft of the liquor.

The reason for this was that his father would tell him, on occasion, that if he got into trouble, he would be sent back to live with his mother. R.L. had come to live with his father due to the chaotic life he was subject to while in his mother’s “care”, and I am satisfied that R.L.’s upbringing while in the care of his mother was so traumatic to him, that he saw this as a significant threat.

Tragically for all concerned, R.L.’s father had no idea of the extent of the concern of R.L. respecting the possibility of his being returned to his mother, and he did not know his comments would have such a devastating impact on his son. [ 25 ] The upshot of all of this is that R.L. devised a plan to scare Cst. Toogood out of Carrot River. His hope was that, if Cst. Toogood thought someone was out to harm him, he would leave Carrot River, and the entire matter respecting the theft of the liquor would be forgotten.

This is not a rational thought process that one would expect an adult to make; however, it is an indication of the turmoil and emotional problems that can afflict the thinking of a 16 year old. [ 26 ] The fact of the matter remains, however, that the plans that R.L. took to effect his purpose were extremely detailed and well thought out. Over the course of approximately two weeks, he devised a plan that was put into effect on the evening of January 16, 2006, at the time when Cst. Toogood, his wife, and their infant son, were all inside the Toogood residence in the town of Carrot River.

A second couple, along with their infant son, were also at the Toogood residence that evening having a social visit. [ 27 ] The best way to describe what happened that night is to parse the Agreed Statement of Facts that was filed as Exhibit P-1 at the trial. [ 28 ] Earlier on the evening of January 16, 2006, R.L. was at a friend’s house.

At approximately 7:20 p.m., those friends left that house to go for a snowmobile ride, leaving R.L. alone in their basement for a time. [ 29 ] As soon as his friends had left the house, R.L. left that residence and walked the few blocks to his house in Carrot River, where he lived with his father. He changed his clothes so that he was wearing black sweat pants, and a black hoodie. He obtained a key to his father’s locked gun cabinet, unlocked that cabinet, and took a Remington .306 calibre rifle and one shell for the rifle. The rifle was equipped with a hunting scope.

He then loaded the shell into the rifle, placed a camouflaged ski mask or balaclava over his face so no one would recognize him, put grocery bags over the top of his shoes, and tied the grocery bags in place in an attempt to obscure any footprints he might leave behind. He then put on gloves, took the loaded rifle, and walked between a couple of houses and down a back alley for approximately one block to the Toogood residence. Upon arriving at the residence, R.L. entered Cst. Toogood’s yard from the back alley, causing the Toogood dog, which was secured outside, to start barking.

R.L. moved to the north of the Toogood residence and stationed himself between the Toogood residence and the house adjacent to it. At that point, he aimed his rifle towards the back door of the Toogood residence. [ 30 ] Cst. Toogood opened the back door of his residence to speak to the barking dog, at which point R.L. fired the rifle. The bullet struck Cst. Toogood in the right forearm and caused severe and significant damage to Cst. Toogood’s arm, damage that persists to this day. I’ll return to the injuries suffered by Cst. Toogood shortly. [ 31 ] After shooting Cst.

Toogood, R.L. ran back the way he had come towards his residence. He ejected the shell from the rifle prior to getting to his residence, and at his residence, took the plastic bags off his feet, took a clean cloth and wiped the exterior of the rifle with the cloth, returned the rifle to the gun cabinet, re-locked the cabinet, and returned the cabinet key to its original hiding place, from which he he had taken it earlier. He then changed back into the clothes he’d been wearing earlier in the evening while at his friend’s residence, and started walking back towards that residence.

On the way, he threw the plastic bags he had used, as well as the black sweat pants and black hoodie he had worn during the shooting, into a garbage dumpster. He arrived back at his friend’s residence before his friends returned back from their snowmobile ride. The upshot of all this is that there would be no reason to believe, at least by these friends, that R.L. had ever been out of the house.

[ 32 ] The Crown argues that this is an extremely serious offence, and that R.L. carries a high degree of moral culpability, arguing that the officer was off duty at the time, was shot with a high powered rifle, at his own residence, and that considerable planning had gone into the shooting. Mr. Healey argues that, among other things, the fact that R.L.’s face was masked, that he took steps to dispose of the incriminating evidence immediately after the offence, and the fact that he denied responsibility for the shooting until approximately five years later, are all aggravating factors. [ 33 ] Mr.

Pfefferle, on behalf of the young person, admits that the offence committed was horrendous, well publicized, and has had long lasting effects on the victim. However, he argues that the idea of “sending a message” is not a relevant consideration for the Court to consider at this stage. He argues that the issue of whether a youth sentence would be of sufficient length to hold the young person accountable is based strictly on the considerations set out in the YCJA , primarily, of course, s. 72. [ 34 ] Returning to the consequences of this crime on Cst. Toogood, and his family, they have been devastating.

Victim Impact Statements were filed by various family members, some of which were read at the sentencing hearing. The comments of the immediate Toogood family are moving and disturbing. Cst. Toogood had always wanted to be a member of the RCMP, following in his father’s footsteps, and enjoyed being posted to Carrot River. He was an active member of the community, playing all sorts of sports, and enjoying many outdoor activities.

On the physical effects side, he stated that he went through eight reconstructive surgeries, three of which required travel with his family to the United States, and some two and half years of physiotherapy to get some function and strength back into his hand and arm. He had bone taken from his hip to fill in the missing bone in his arm, and had muscle taken from his abdomen to replace destroyed muscle in his arm. He was subjected to skin grafts, numerous physiotherapy sessions, and has ongoing physical difficulties to this day and, no doubt, will have those continuing into the future.

He has had to undergo counselling, and during the number of years that the crime remained unsolved, he was living in constant fear for himself and his family. He sums up his comments as follows: The reality of it is, that the effects of this will never go away and it is unknown as to what the future has to bring. The career options I have within the RCMP and when I plan to retire are now limited. I have been told that my recovery is the best now as it will ever get and that when I get older it will get worse. The past is a traumatic memory, the present is a challenge and the future is unknown.

I will hope for the best and deal with the rest in hopes to raise my family in the most positive environment possible. [ 35 ] Andrea Toogood, Cst. Toogood’s wife, similarly spoke of how tragic the effect of this was upon her husband and family; her Victim Impact Statement contains the following comment which I find particularly telling: At our house, window blinds are always closed at night without an ounce showing through and the locks on the doors, for a long time, were double, sometimes triple-checked. A knock at the door still sends my heart racing.

Distrust became a real issue in everyday life, as we were both very trusting people before, wanting to make new friends and find our spot in our community. This distrust came into our relationship with each other as well, causing arguments and tension between us. [ 36 ] The Victim Impact Statements of Cst. Toogood’s father, Ronald Toogood, and his mother, Adriana Toogood, as well as the others, are equally moving. Clearly, the offences that R.L. pled guilty to, and the one charge he was convicted of under s. 244, were extremely serious and have had a devastating effect on the victim and his family.

b) The age of the young person [ 37 ] R.L. was just shy of 16 years and three months of age at the time of the shooting.

c) The maturity, character and background of the young person [ 38 ] A pre-sentence report was prepared for June 8, 2011, based on the guilty pleas that R.L. had entered by then, and was updated for his sentencing hearing held October 13, 2011. The initial report notes that R.L. was, at that time, a 22 year old Metis youth who had been working in Saskatoon prior to his arrest in March 2011. That report identifies a concern of a possible anti-social pattern,

based on the circumstances of the offence. Specifically, the report noted that it did not provide a measurement for risk for violent offending pattern. The report indicates that R.L. was a valuable and reliable employee, had been independent since he was eighteen, and was a responsible adult prior to his arrest. Looking back to his early years, the report notes that R.L. had a chaotic upbringing while he was with his mother, and that he was not treated equally in the family, as his mother, who had given birth to two daughters after her relationship with R.L.’s father ended, tended to prefer R.L.’s step-sisters.

R.L. moved to live with his father when he was eight, as by then he was acting out in school and there was significant concern for his safety and future care generally. [ 39 ] When he came to Carrot River, his life changed dramatically for the better. As he approached 2006, he was actively involved in sports, enjoyed hunting with his father, and was generally a popular youth with many acquaintances. [ 40 ] I would describe R.L. as, on the surface, an apparently normal teenager, although under the surface, one who had ongoing issues of emotional distress, which was noted in the initial report.

It is clear that he remained totally dependent on his father at the time of the shooting. [ 41 ] That initial report concludes by stating that counselling appears to be in order although that should be addressed at the conclusion of the trial and after reviewing a psychological report.

That report also notes that “there has been a question as to the state of R.’s emotional balance, at the time of the offence”. [ 42 ] The updated report makes reference to the psychological report that had by then been prepared, and does note that R. “agreed with the assessment that he had responded impulsively, with a high level of emotion. His base emotion was fear”. [ 43 ] The Report of Psychological Consultation of June 3, 2011, notes the following: The Jesness classifies R. as an NX or introspective type. These individuals tend to internalize a “bad me” self-image but present a facade of self-sufficiency.

They tend to be plagued with feelings of inadequacy, which may lead to feelings of chronic anxiety. They are looking to be respected and understood and form bonds with both adults and peers. They seek personal acceptance and approval from older parental figures and they appreciate guidance. Youth in this group tend to be conforming and introverted but when feeling very insecure they can be confused and dependent. [ 44 ] Those remarks were bracketed by observations that: R. is consistent in stating repeatedly he panicked and wanted to “distract” the officer.

R. admits that in hindsight the decision was “dumb” but he reports for two weeks prior to his crimes he could not sleep, his mind kept racing and he was having anxiety attacks. He also began to have emotional breakdowns and reports crying extensively. The writer then questioned why he was so adamant about keeping this information hidden and that could be a cause of concern. He reports he was in a highly charged emotional state and his main focus was not being sent to live with his mother. ......

R. presented well and was forthcoming and polite during the interview, the psychological inventory (Jesness) reported valid results therefore he did not seem to be faking good but his responses were sincere and consistent. R.’s formative years by his account were quite traumatic and he witnessed domestic violence and was often neglected by his mother. His fear was so immense at times he would run away in the winter months without adequate clothing.

His life with his father after age seven was more stable and structured but he was quite insecure and lived in constant fear of having to go back and live with his mother. He reports a lot of this fear and abandonment led to the decisions he made that led to the crime he committed... [ 45 ] An update to that report, dated August 3, 2011, by which point R.L. had been convicted of the s. 244 charge, indicates that the prior assessment of R.L. did not really change based on the new conviction. It states:

The results of the Violence Risk Assessment do not change significantly with the new information provided by the court and R.’s risk to reoffend remain in the low to moderate risk to reoffend violently. [ 46 ] That update goes on to state: His actions denote acting from an impulsive reactive emotional state rather than a logically planned act. R. does display the ability for insight and has understood the danger his impulsive actions caused his victim. The recommendation from the report can be referred to help the court gauge the best course of action with Mr. L.

He does have a specific plan for his future and seems to have the resources and support systems he requires to access these goals. His goals are employment, further training and a family. [ 47 ] These reports were, of course, prepared some time after January of 2006, and are therefore dealing with dated events, and are based largely on what R. stated to the authors. I find them to be valid and accurate. Much of what is contained in the reports, particularly as it pertains to R.L.’s thought processes, accords with the evidence at trial.

Further, through the numerous support letters that were filed on behalf of R.L., it is clear that he has and continues to have a great deal of support in the community, from both family and friends. Some of those letters were dated quite some time ago, before pleas were entered, and express confidence that R.L. would not be capable of committing the crimes he was accused of.

Although subsequent events have shown otherwise, the letters are consistent in that the general tenor is that R.L. was and is a good and respectful person, and that what he did was completely out of character. [ 48 ] In the ordinary course, a Court is concerned less with the reason that a person commits a crime than with establishing that he or she intended to. I have gone into this issue at some length as it is, in my view, a necessary part of the review that must be undertaken in this sentencing decision.

I conclude that R.L. was a confused and emotionally immature 16 year old at the time the shooting occurred, and that the offence, serious though it was, was out of character for him. Further, it was not committed because R.L. harboured any hatred or ill will towards the officer. [ 49 ] R.L. had a tragic upbringing in that he was abused and mistreated by his mother’s various partners, and he was often a witness to physical violence being visited upon his mother.

A main reason he moved to Carrot River was because he was having difficulty in school, and the situation for him in Winnipeg was quite intolerable, such that he simply had to be removed from his mother’s care. [ 50 ] When he moved to Carrot River, his life changed, for the better. He found stability with his father, and although he was subject to a curfew and strict house rules, he was, by all accounts, what one would call “a good kid”. He was active in school, well liked by his classmates, and enjoyed a normal teenage life.

The only blemish on his character was his constant fear that he would be sent back to reside with his mother, a fear that although not particularly valid in fact, was of real and particular concern to him.

d) The previous record of the young person [ 51 ] R.L. had no criminal record at the time of the shooting. The Crown submits that his lack of a record is “more of a reflection of his ability to avoid conviction than it is a reflection of his good character”. I am not prepared to consider that argument is assessing this factor; the fact is, R.L. had no criminal record at the time of the shooting, and has not had any criminal convictions since then. I have considered this Crown argument below.

e) Any other factors the Court considers relevant [ 52 ] As noted, R.L. has no prior criminal record. In point of fact, when he was charged with this offence, some five years after the fact, he promptly entered guilty pleas to most of the charges, with the exception of the matter that went to trial and was decided in July of 2011. The sole matter that R.L. has taken issue with, since being apprehended, is with the Crown’s assertion, and this Court’s

determination, that he deliberately fired the rifle at Cst. Toogood with the intent to hit him. R.L. has consistently admitted that he shot the gun, although without the intent to actually hit Cst. Toogood. One has, of course, the right to maintain a defence, and I do not hold the fact that he chose to do so against him.

I do find that he took responsibility for his actions, since the time of his apprehension, putting only his intent in issue. [ 53 ] As for the Crown argument noted above, respecting R.L.’s ability to avoid detection, that is based on the fact that R.L. was not apprehended until he had sought the assistance of a man he thought was a “crime boss”, actually an undercover RCMP officer who was part of a well-executed “sting” operation. During a discussion between this “crime boss” and R.L., the latter made statements that led to his arrest and subsequent conviction. Thus, Mr.

Healey argues, R.L. was, as of March of 2011, a man who would do anything to avoid detection. Further, the Crown argues that R.L. was knowingly working with what he believed to be a criminal organization. [ 54 ] One of the unique circumstances of this case is that the sentence will be passed upon a young man now 22 years and 3 months of age, fully six years after the offence occurred. Thus, I am deciding whether or not a youth sentence will be of sufficient length to hold a 22 year old accountable for his offending behaviour six years prior.

In my view, the most appropriate way to do this is to utilize the test set out in

section 72 of the YCJA , supplemented by an examination of the young person’s life in the intervening years. [ 55 ] In doing so, I acknowledge that R.L. has concealed the fact of his crime from all and sundry for those six years. I do not find that in doing so, he has shown a callous disregard for his acts, or that this concealment reveals a significant character flaw. It would seem self-evident that most people who commit an offence would wish to avoid detection.

What I do find reflective of R.L.’s character is that, when he was arrested, he promptly took responsibility for what he had done, with the exception of his intent when he fired the rifle, a matter which was resolved at trial. [ 56 ] As for his involvement with a life of crime, if that be a proper way to phrase it, I note that the sting operation was a carefully constructed fantasy. R.L. was, at the same time, holding down a responsible job and was clearly a valued employee. But for the trap that was set for him, he was leading an honest life.

It would be, in my view, inappropriate to put too much emphasis on the events of March of 2011and those leading up to the meeting with the “crime boss”. [ 57 ] Further, I accept his evidence at the sentencing hearing that he was truly remorseful for what he had done. At that hearing the Emergency 911 tape was replayed. R.L. was weeping as he listened, and was clearly tremendously moved by the experience of hearing, for the first time, the devastating effects his actions had on the Toogood family and their friends.

When asked if he had anything he wished to say, he elected to read a statement that he had prepared, I note the following excerpt as being indicative of what I find his present attitude and understanding of these offences to be: So when my friends and I stole the alcohol and were getting caught for it, getting sent back to all that [his life with his mother] was soon becoming a harsh reality. I was terrified and couldn’t stop thinking about it, my young mind was getting twisted with fear and I saw no way out. People can get driven to do stupid things when they fear the worst, especially a sixteen year old kid.

But no matter how much I went through, there is no excuse for the trauma I put Mr. Toogood and his family through. [ 58 ] R.L. then went on to acknowledge how ashamed he was for what he did, acknowledging that Cst. Toogood was an innocent man who was really hurt, noting that he had nothing against the officer, who he referred to as “a brave person who puts his life on the line to keep our communities safe”.

He apologized to the Toogoods, asked for their forgiveness, and concluded by stating that he was endeavouring to put this behind him and be a better person in future. [ 59 ] It was argued that R.L. had no reason for doing what he did. In my view, he had a reason, although it was certainly not a rational one, by any adult standard. In looking at what occurred, however, I am looking at it through the lens of an emotionally troubled and terribly frightened sixteen year old. [ 60 ] Returning to ss. 3(1)(b)(ii) and 38 of the YCJA referred to earlier, I note the following. Section 3(1)(

b) notes that the criminal justice system must be separate for young persons and must emphasize, under 3(b)(ii), “fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity”. I am satisfied that, in this case, R.L. had a greater dependency, and a greatly reduced level of maturity, than one would expect from the usual sixteen year old.

[ 61 ] Turning to the particular sentencing principle set out in s. 38, also reproduced earlier, it is noted that the purpose of a sentence under section 38(1) of the YCJA stresses holding a young person accountable for what he or she has done, by the Court imposing just sanctions for that young person, just sanctions that will best protect society by promoting his or her rehabilitation and reintegration into society. Section 38(2) requires the Court to determine the sentence in accordance with the sentencing principles set out therein, as well as those in s. 3.

Defence counsel has cited numerous youth sentences for aggravated assault and for murder or manslaughter, sentences which cover a wide range. Similarly, Crown counsel has cited cases which, in his view, support the imposition of an adult sentence. What these cases establish is that the decisions vary widely, that each offence and offender are unique, and that each case must be decided based on the factors set out in

section 72. [ 62 ] The maximum penalty under the YCJA for these offences is one of a three year custody and supervision order, if a consecutive sentence or sentences is imposed (s. 42(13) and (15)). Mr. Pfefferle suggests that, although R.L. has been in custody since March 11, 2011, a period of 329 days to the sentencing date of February 2, 2012, I can take that time into consideration in arriving at a proper sentence, without formally giving credit for it.

Thus, he argues that a custody and supervision order of three years from February 2, 2012, would be of sufficient length to hold the young person accountable for his offending behaviour, when combined with the time already served, which would ordinarily be at a credit of 2:1.

In essence, he is suggesting a youth sentence of what would effectively be almost five years. [ 63 ] The position of the Crown is that a youth sentence would not be of sufficient length to hold the young person accountable for his offending behaviour, and that I ought to impose an adult sentence of eight years incarceration. [ 64 ] As the issue of the remand time has some significant bearing on the question I must address under s. 72 of the YCJA , I will deal with that first. As ss. 38(3)(

d) states, “the time spent in detention by the young person as a result of the offence” is a specific factor I am to take into account in determining a youth sentence. [ 65 ] In R. v. N.W.P. , 2008 MBCA 304 , Mr. Justice Monnin was dealing with an appeal of a young person, who despite having spent 238 days in custody prior to his plea and sentence, received the maximum penalty available under the YCJA , without receiving any deduction for the pre-sentence custody that had been served.

Although the sentencing judge was dealing with a joint submission, a factor not in play in this decision, the sentencing judge noted that “I do not think that time in detention should result in less time in custody because of the circumstances of the offence and the consequences of the offence”. [ 66 ] Mr. Justice Monnin found what he referred to as “tacit acceptance” by all members of the [Supreme Court] in the decision of R. v.

B. (D.) , supra, in which the Supreme Court of Canada upheld the sentencing judge, who had held that “in my view, the maximum period of a youth sentence is necessary to achieve the desired ends of the rehabilitation programme, and for that reason I have not given credit for the one year period of pre-trial custody” (at para. 10 of N.W.P .). [ 67 ] In my view, in assessing whether or not a youth sentence would be of sufficient length to hold a young person accountable, it may be proper to consider the pre-sentence custody, without formally applying credit for it, if not crediting the pre-sentence custody time serves a valid and appropriate purpose under the sentencing principles of the YCJA . [ 68 ] As noted earlier, the decision is to be made by making a proper “evaluative decision”, an “informed decision”, that weighs all the factors, in effect a balancing of competing interests and principles. [ 69 ] In looking specifically at the matters I am to consider under s. 72, the offence and the circumstances surrounding it are serious.

The effect on the victim and his family have been, and will continue to be, significant. [ 70 ] In looking at the other factors, I have concluded, based on all of the evidence at the trial and the hearing, that R.L. was an emotionally immature and confused young person at the time of the shooting. On the surface, he appeared to be an average teenager, but in fact he was one wracked by fears and insecurity, based largely on his chaotic early years. [ 71 ] Having considered the matter, and in looking at the proper and available sentencing options under the YCJA , I am of the

[ 71 ] Having considered the matter, and in looking at the proper and available sentencing options under the YCJA , I am of the opinion that a youth sentence will have sufficient length to hold the young person accountable for his offending behaviour, and I order that R.L. is not liable to an adult sentence and that a youth sentence must be imposed. [ 72 ] In my view, in order to achieve the desired goals of rehabilitation and reintegration, the maximum allowable youth sentence must be imposed, from today’s date.

For that reason, I am not going to give credit for the pre-sentence custody which R.L. has served. [ 73 ] The youth sentence shall be as follows: On the charge of intending to wound Gregory Toogood, contrary to s. 244(2) (

b) of the Criminal Code - pursuant to s. 42(2) (n), a custody and supervision order, the total of the order being two years from today’s date. On the charge of carrying a weapon, contrary to s. 88(2) (

a) of the Criminal Code , a two year custody and supervision order under s. 42(2) (n), concurrent to the first charge. On the charge of using a firearm to commit an indictable offence, contrary to s. 85(3) (

a) of the Criminal Code , a two year custody and supervision order under s. 42(2) (n), concurrent to the first charge. On the charge of using violence to impede a justice system participant, contrary to s. 421.1(3) of the Criminal Code , a consecutive one year custody and supervision order under s. 42(2) (n). [ 74 ] The result is that R.L. shall serve a sentence of two years in custody, followed by a year under supervision in the community, in addition to the time he has already spent in custody. [ 75 ] The custody portion shall be served in a closed custody facility.

In practical terms, due to the operation of s. 89(1) of the YCJA , the young person shall be committed to a provincial correctional facility for adults to serve the youth sentence. [ 76 ] The supervisory portion of the custody and supervision order will include the following mandatory conditions: (

a) keep the peace and be of good behaviour; (

b) report to the provincial director and then be under the supervision of the provincial director; (

c) inform the provincial director immediately on being arrested or questioned by the police; (

d) report to the police, or any named individual, as instructed by the provincial director; (

e) advise the provincial director of the young person’s address of residence and report immediately to the provincial director any change (

i) in that address, (ii) in the young person’s normal occupation, including employment, vocational or educational training and volunteer work, (iii) in the young person’s family or financial situation, and (iv) that may reasonably be expected to affect the young person’s ability to comply with the conditions of the sentence; and (

f) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized in writing by the provincial director for the purposes of the young person participating in a program specified in the authorization. [ 77 ] Pursuant to s. 51 of the YCJA , as the offences of which the young person has been found guilty are referred to in s. 109(1) (

a) of the Criminal Code , I make an order prohibiting R.L. from possessing a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for the period that begins today and ends two years after you have completed the custodial portion of your sentence. You shall have 30 days from today’s date to surrender to a peace officer, a firearms officer, or a chief firearms officer, anything referred to in the order just made that is in your possession today, as well as every authorization, licence and registration certificate related to anything that is included in the order just made that is in your possession today.

[ 78 ] The charge under s. 244(2) (

b) of the Criminal Code is a primary designated offence, resulting in a mandatory order under s. 487.051(1) of the Criminal Code . I therefore make an order under s. 487.051(1) in Form 5.03 authorizing the taking from you, for the purpose of forensic DNA analysis, one or more samples of one or more bodily substances as may be reasonably required for the purposes of the legislation.

As you will be going into custody, a sample will be taken while you are in custody. [ 79 ] As it is common knowledge that the firearm used in these offences is not the property of R.L., but rather his father, I am not making a forfeiture order under s. 491 of the Criminal Code . If that firearm has been seized and detained, it is to be returned to the rightful owner upon the expiration of any appeal period. Dated at Carrot River, in the Province of Saskatchewan, this 2 nd day of February, A.D. 2012. B. Morgan, J