2019 SKPC 50, 2019 SKPC 50

I N THE P R O V I NC I A L C O UR T OF S A SK A T C HEW A N Ci t a t i on: 2019 S K P C 50 D a te: August 12 , 2019 I n fo r mation: 391867 L o c a t i on: La Ronge B e tw e e n: H e r M a jes t y the Qu ee n - a nd - W.M. App ea ri n g : Ms. Ruth Fafard F or the Cro w n Ms.

Jessie Buydens F or the A cc used 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. JU D GMENT R.J. LA N E , J [ 1 ] W.M. is charged on youth Information #Y391867 as follows: Did on or a bout the 1 5 th d a y o f April, A.D., 2017 a t or near La Ronge, S a skat c h e w a n:

1) Commit second degree murder on the person of Simon Grant contrary to section 235(1) of the Criminal Code ; 2) Steal from Simon Grant Canadian currency while armed with an imitation of an offensive weapon to wit: a firearm, contrary to section 344(1) (

b) of the Criminal Code ; 3) Use an imitation firearm, to wit: a handgun while committing the indictable offence of murder contrary to section 85(2) of the Criminal Code ; 4) Did have in his possession an imitation of a weapon to wit: firearm, for the purposes of committing an offence contrary to

section 88 if the Criminal Code ; 5) With intent to commit an indictable offence did have his face masked contrary to section 351(2) of the Criminal Code . [ 2 ] The accused has pled guilty to the lesser included offence of manslaughter contrary to

section 236 of the Criminal Code - Count #1 . The accused has also pled guilty to Count #2 of the Information – robbery, and Count #5 of the Information – wearing a mask while committing an indictable offence. [ 3 ] The Crown is represented by Ms. Ruth Fafard. She has applied to have the accused sentenced as an adult pursuant to sections 64 and 72 of the Youth Criminal Justice Act , SC 2002, c 1 [ YCJA ]. The accused is represented by Ms. Jessie Buydens . She opposes the Crown application. [ 4 ] The Crown’s position is that if the accused is sentenced as an adult, the sentence should be 13 to 15 years in custody.

The defense position is that the accused should be sentenced as a youth and should be sentenced to an IRCS sentence of three years on top of the approximately 25 months that the accused has been on remand at Kilburn Hall. [ 5 ] An Agreed Statement of Facts has been filed by Crown and defense. Thus, there is no need for me to make findings of credibility insofar as the incident itself is concerned. The facts are as follows: 1.

The now deceased Simon Grant (hereinafter referred to as “Simon”) (DOB 1952-09-30) and his spouse Cora Laich-Grant (hereinafter referred to as “Cora”) (DOB 1966-10-30) were the owners/operators of Louisiana’s BBQ Restaurant in La Ronge commencing in 2012. The events herein took place in La Ronge and area, in the Province of Saskatchewan; 2. Simon and Cora have a daughter Candace Laich-Grant (hereinafter referred to as “Candace”) age 14; 3. The business of Louisiana’s BBQ was situated on Studer Street and there was an apartment attached to that business.

In May 2016, the Grants were looking after a young woman, Xandria McKenzie and had arranged for her to stay in that apartment. Xandria had been living there for the past five years. Xandria also dated W.M. (DOB 1999-12-28), hereinafter referred to as “M.”). in May 2016 the Grant’s learned that M. was living in a tent and had no place to stay, and was getting very thin, so they allowed him to move into the extra bedroom at Louisiana’s apartment. The Grant’s started to buy him groceries and take care of him. For example, they assisted M. in obtaining medical treatment when needed.

The Grant family also attempted to work with Indian Child and Family Services (hereinafter “ICFS”) to obtain financial support for M.; 4. On February 6, 2017, the power bill at the restaurant was extremely high, and the power was turned off. Since there was no heat in the apartment, the Grant family tried to obtain assistance from ICFS. When this did not materialize, they allowed M. to move into the basement of their family home in Air Ronge. M. shared the basement with a cognitively disabled adult that the Grant’s also cared for, Brian Clarke (hereinafter known by his nickname “Arnold”); 5.

The Grant family noticed that M. was grateful for their help and making some attempt to “turn his life around” but they were also worried about his activities. They believed he was selling marihuana from their home. The Grant’s worried about M.’s temper and violence towards Xandria. M. was also violent with family pets. The Grant’s noticed a lot of people coming and going from their home and also believed that M. was stealing cans in the neighborhood;

6. On April 4, 2017, the Grant’s asked M. to leave their home. M. started to pack and the Grant’s left to work at their business. When they called their daughter Candace to check on her, she advised that M. had come back with his friend. She and her friend were scared and now hiding in the closet. Candace advised as follows:

a) M. threatened to kill her; and

b) M. said that “your dad better watch it, we’re gonna mess him up. You guys are going to pay for this”; 7. The Grant’s immediately went home and saw their daughter hiding in the closet. Cora observed that M. was downstairs packing more things. Cora saw Simon speaking to M. about the threats. M. pushed Simon, and then tried to punch Simon, who also punched in self-defence. M. told Simon, “I could get 30 guys and I’m fucking going to mess you up big time so don’t fuck around with me.” This was reported to the La Ronge RCMP, but the Grant’s did not want to further pursue charges.

Their main interest was in M. receiving assistance from ICFS. M. does not remember making any of these threats; 8. After M. left, he continued to send threatening messages to Candace. The Grant family believed that M. had a black handgun style pellet gun. They hid Simon’s Rolex watch after M. was asked to leave. Around the time that M. was asked to leave the Grant family residence, M. told T.T. (age 14, hereinafter as “T.”), another co-accused, that Simon had a Rolex watch and that he wanted to steal it. The watch is thought to be valued at around $60,000.00; 9.

Prior to the Easter school break in April of 2017, M. was with T. T. mentions in a statement that M. had animosity towards the Grant’s as a result of being “kicked out” because of non-payment by ICFS. M. asked Garrett McDonnell (age 18) if he would help him steal the watch and some other jewelry from Simon; 10. On April 15, 2017, M. went to the trailer residence of T. This trailer court residence is only about a block away from the restaurant. M. told Austin Bird (age 18, hereinafter referred to as “Bird”) he wanted to rob Simon.

Around 10:00 p.m. that evening either T. or M. called the restaurant, ordered a platter of food, and he, Bird, T. and another unknown person waited outside to rob Simon when the food was delivered. Simon did not arrive to deliver the food; 11. On April 15, 2017, Bird, M. and T. entered Louisiana’s Restaurant shortly before 11:00 p.m. with the intent of robbing Simon. All three of them wanted money but M. in particular was intending to steal an expensive watch and gold chain that Simon owned. Bird says that M. “just kept talking about a watch…worth lots”.

Bird indicates that the main planning of the robbery was done by M.; 12. M. entered the restaurant first followed by Bird and T. M. was armed with a baseball bat. Bird and T. had unloaded pellet guns (pistols) that M. had provided to them. Bird, M. and T. were wearing ski masks; 13. M. began gesturing with his bat and swinging it; hitting Simon with it with various blows to Simon’s head and body. Simon was forced away from the Louisiana’s security camera in this manner by M. The camera was also covered up. As a result, the account of the assault is largely based on Bird’s warned statement; 14.

M. turned his head briefly and Simon pulled the ski mask off M.’s head to reveal his face. Simon said “boys”, and M. became suddenly angry and began hitting Simon harder with the bat, Simon staggered and at that point Bird pushed Simon and Simon fell to the floor on his left side; 15. While Simon lay on his side, M. and T. began hitting him on the right side of his body. M. delivered blows with his bat to Simon’s head and body. In total Bird estimated that M. delivered three blows to the head with the bat and seven times to the body throughout the assault. T. “pistol whipped” Simon on his body and legs.

Bird also delivered a hit to the head, but M. acknowledges that he delivered most of the blows. This assault lasted about several minutes; 16. During these minutes, Bird actively participated in the assault. He stomped on Simon’s head once, and kicked him several times on his body. At this point, T. said “I think I broke a rib”, meaning Simon’s rib. M. told Bird to stop kicking Simon and Bird did stop; 17. Bird says that M. later told him that with one of the blows to Simon’s head, M. felt “something go in”.

Bird says that Simon’s injuries “looked serious…man, his eyes were open and blood was coming out the ear and just a big puddle there”;

18. After the assault concluded with Simon still on the floor, T. went outside to go into Simon’s vehicle to see if there was anything to steal, but he could not find anything inside the vehicle to steal. Bird went to one of the tills to grab cash, took about $50.00 in change. M. went to another till, grabbed all the paper money he could find and also took some paper money from Simon’s person. Bird does not know how much was taken, but he saw M. with a wad of bills including twenties and some fifties. Simon was robbed of his cash, cell phone, keys and credit card.

The three accused did not find the watch or the gold chains; 19. The three all departed the restaurant and ran away. A short time later they met at a nearby residential trailer and obtained a ride in the truck of Matthew Nagy. Matthew drove them to the Lakeview Apartments. Bird and T. sat in the backseat of the truck while M. sat up front with Matthew who was driving. Bird heard M. say to Matthew “I think I killed someone”; 20. Arnold had called 911 and was discovered hiding and scared in the restaurant; he later tells Cora that “two teenagers came in and did it”.

Simon was still conscious but confused when he was taken to La Ronge Hospital then flown to Royal University Hospital in Saskatoon. As a result of the beating of April 15, 2017, Simon Grant subsequently succumbed to his injuries and died on the morning of April 17, 2017. Pictures of Simon in the restaurant right after the assault are attached as Exhibit A; 21. On April 19, 2017, an autopsy was conducted on the deceased.

The autopsy report is attached as Exhibit B. and concludes the cause of death to be blunt force trauma to the head consistent with multiple impacts on head, and not consistent with accidental trauma. Autopsy photos are also attached as Exhibit C; 22. At the time of the offence, M. was on an undertaking with conditions not to communicate with T. and not to possess any weapons, stemming from an incident on April 9, 2017, when they were involved in a break and enter and theft involving a shotgun and a rifle. [ 6 ] The motive for this offence is robbery.

There is no evidence that this was motivated by revenge or hatred directed towards the victim Simon Grant. There are comments contained in the Agreed Statement of Facts that displayed a recent animosity of W.M. towards Simon Grant but I want to make it clear that for the purposes for this Crown application, and subsequent sentencing, the underlying motive was robbery. [ 7 ] The underlying facts demonstrate a human cruelty that is hard to describe. By all accounts, Simon Grant and his wife Cora Laich- Grant had been nothing but kind to W.M.

It would appear that Simon Grant continuously went out of his way to help people of all kinds, but especially Aboriginal youth who were struggling with their unique challenges in day-to-day living and this accused was one of those. The evidence would indicate that this accused had been essentially living in a tent, at 17 years of age. To his credit, he was still attending school. However, it is clear from his interviews with youth workers, psychologist, Dr. Donna Torrens and others, that this accused was also using the school to sell drugs.

He had no other means to make money to live on, at least he did not seriously pursue any other means such as employment. W.M.’S BACKGROUND [ 8 ] W.M. was born December 28, 1999. It’s clear from the testimony of youth worker, John Seidler and from other witnesses, mostly based on what W.M. told them, that he had a horribly challenging childhood. He was taken into care at approximately age four and spent the rest of his life up to the time of his arrest in numerous foster homes, the homes of extended family and lastly, living homeless. That is either “couch surfing” or living in a tent.

Foster care was not kind to W.M., him having suffered physical, emotional and sexual abuse throughout that time. In fact, Mr. Seidler testified that in W.M’s life, the accused only lived in homes where there was a positive and structured environment for approximately 18 months. As Mr.

Seidler states in the Pre-Sentence Report at page 13 “W.M. has received virtually no pro-social support from his biological mother in his life and has never lived anywhere long enough to form a well- established relationship with the caregiver which could mitigate this”. [ 9 ] The Grant family took him in, firstly in a suite in their Restaurant in La Ronge, Saskatchewan, then subsequently in the basement of their home. As set out in the Agreed Statement of Facts, the Grant’s bought him groceries, helped him obtain medical treatment where necessary, etc.

They went above and beyond to help him develop into a productive adult citizen. [ 10 ] W.M. lived in a suite in the restaurant where this incident took place, from May 2016 to February 2017, and then in the Grant’s home from February 2017, until April 4, 2017, when the Grant’s told him he would have to move out. Sadly, there was no financial assistance from ICFS to help the Grant’s. However, the reason he was asked to leave was due to the Grant’s suspicion that he was

dealing drugs out of their home, not for financial reasons. This, as it turned out, was a justified suspicion. Clearly, there were incidents of animosity of W.M. towards Simon Grant at the time of his expulsion from the Grant residence including an attempt by W.M. to punch Simon Grant as well as threats to Simon Grant. [ 11 ] As part of the evidence, the Crown called psychologist, Dr. Donna Torrens, as well as psychiatrist, Dr. Declan Quinn. Both professionals gave significant amounts of evidence. Dr.

Torrens indicated she had seen W.M. twice a week for most of two years and that in her view, W.M. was making progress in dealing with this horrific incident and coping strategies. Suffice to say that she felt strongly that W.M. would qualify for the IRCS Program and that she could continue to work with W.M. for the three years of that sentence. She described W.M. as being immature at the time of the offence and he was also abusing drugs and alcohol. She held the view, as did psychiatrist, Dr.

Quinn, that W.M. would benefit from a continuation of his professional relationship with his current health care team including Dr. Torrens. The prevailing view was that it would be difficult for W.M. to start all over with a professional relationship with a new psychologist, psychiatrist and other medical caregivers. [ 12 ] W.M. has been subjected to numerous psychological and psychiatric assessments and has been diagnosed with conduct disorders, substance abuse disorder and reactive attachment disorder.

Youth worker, John Seidler opined that he suspected W.M. may also suffer from FASD however this has not been diagnosed. [ 13 ] Dr. Torrens described W.M. as intelligent and as manipulative. In fact the evidence would suggest that he was of average to above average intelligence – in her words “he’s probably more intelligent than other youth in jail”. [ 14 ] She described W.M. in these terms “relative to other youth, he has been one of the more motivated and insightful youth” that she had ever worked with. Dr. Torrens testified that she did not delve into childhood issues at this stage.

She said he has been learning coping strategies. She described him as having “selective empathy” – that is empathy to some people and not to others. She testified that she could not guarantee a successful outcome for W.M. as a result of the IRCS Program. Youth worker, John Seidler stated anecdotally that he is aware of some youth who had done very well with the IRCS Program and some who have failed. In fact, there are no actual statistics as to the success rate of youth in the IRCS Program. The Crown suggests that Dr. Torrens appears to show a bias towards W.M. and his participation in the IRCS Program.

This perceived bias is not to me very surprising, as highly trained personnel like Dr. Torrens have as a reason for their being, a passion to help troubled youth like W.M. to become functioning citizens. And W.M. presents as an individual who is keen to progress. She admitted that it is not realistically possible to assess the likelihood that W.M. will not return to his substance abuse when he returns to living in the public.

As she stated, in theory at least, there are not substances in Kilburn Hall that the accused could abuse and therefore, has not realistically been subjected to the temptation of substances. [ 15 ] Jennifer Peterson testified in her capacity as the IRCS Co-coordinator for the Province of Saskatchewan. She described the federal funding available for such sentences and being rather substantial – in the range of $100,000.00 .

This money is to help the youth continue psychiatric and psychological treatment, help with travel expenses for treatment, educational programs and even travel expenses for his family to visit him while he is in custody. She testified that W.M. would qualify as a candidate for the IRCS Program. If he is to be sentenced to an IRCS youth sentence, a team of professionals including Dr. Torrens, youth workers, etc., would evaluate and modify his program depending on his progress, on a regular basis, that is every six to eight weeks. [ 16 ] Ms.

Peterson She testified that although no statistical analysis has been done, anecdotally it seems that IRCS participants tend to re-offend less frequently than non-IRCS participants. However, she testified that they have seen IRCS participants re-offend violently so there is definitely no guarantee. She testified that if W.M. is given an IRCS sentence, he would conceivably stay at Kilburn Hall to the completion of his sentence, notwithstanding that inmates are presumed to be transferred to an adult facility at around age 20. W.M. is currently 19.

It is up to the youth to decide if he wishes to stay at a youth facility. If he does not apply to stay, he will be transferred to an adult facility, presumably an adult correctional center. If the general thrust of the accused’s argument is to keep the accused away from adult offenders, it is clear that only he makes the decision to apply to stay in a youth facility.

This witness testified that every youth she knows of that has applied to stay at a youth facility has been allowed to do so unless their behavior is causing problems or danger to other youth inmates. [ 17 ] I must say that it is concerning that the decision to apply to stay in a youth center is that of the accused alone. If he wants to be transferred to an adult facility to be with older offenders, he will be.

Another very concerning factor for this Court is the testimony of Jennifer Peterson that if W.M. is sentenced to an IRCS youth sentence, and if he decides he no longer wants that treatment, he is free to choose that. The only consequence is that he would likely be brought before the Court and at worst, his sentence would simply be converted to a three year secure sentence. That is two years in secure custody and one year under community supervision.

The only real difference being the federal funding is no longer available. [ 18 ] Facility worker, James Kidd, from Kilburn Hall testified as to his experiences with W.M. while W.M. has been at Kilburn Hall.

[ 19 ] In general, he described W.M. as a “model prisoner” but not without a few incident reports . Not long after his admission to Kilburn Hall the accused bragged to others that he had “put the old man out of his misery”. Mr. Kidd described W.M. as not handling well situations where W.M. was challenged on his behavior. Between November 1, 2017, and January 22, 2018, he was still glorifying criminal lifestyle. A troubling incident occurred in July 2018.

W.M. was aware that a relative of his was coming to Kilburn Hall as an inmate and he had the insight to warn his facility worker that it would be difficult for him to avoid falling back into criminal behavior if he was placed with his relative. Unfortunately, for whatever reason, the facility did not keep W.M. separate from his relative and in July, 2018, a note fell out of the shoe of W.M. in the gymnasium that detailed a plan of W.M. and others to firstly assault and harm facility workers and then escape.

These are the very facility workers that W.M. had developed a professional relationship with, and who had come to trust W.M. Upon being confronted about the violent escape plan, the accused became defensive yelling such things as “do you think I give a fuck? I don’t give a fuck about you guys. I’m a gangster”. [ 20 ] Again on July 22, 2018, the accused was kicking and banging on the cell door shouting “Sask Kings. I’m tired of being the nice guy. I’m a gangster. Sask Kings until I die.” [ 21 ] These incidents are troubling to the Court.

On the one hand, he had the insight that a relative from La Ronge would cause him to break the rules and maintain his “tough guy” image that he had in La Ronge. On the other hand this is precisely what happened. The comment that he was tired of being the nice guy almost seems to be a moment of weakness or a Freudian slip where he may very well have been saying “this is not who I am. I have deceived you. I am actually a gangster.” Another incident occurred in November 2018, where the accused joined others in an attempt to isolate and assault another youth inmate at Kilburn Hall.

Jody Fiddler, facility worker from Kilburn Hall, also testified that in general, the accused has done very well. [ 22 ] There was also evidence from federal corrections officers detailing what programming might be available and how it could be accessed by the accused. It is clear that in the Federal Institution, there would not be available to the accused the continuous and intensive one-on-one treatment from psychologists that he’d been having at Kilburn Hall. However, there are psychologists available. THE VICTIMS [ 23 ] The Court heard about two days of victim impact statements.

These were presented by Cora Laich-Grant, the widow of the late Simon Grant, Candace Laich-Grant, the daughter of the late Simon Grant and many other individuals including the general community statement from the Village of Air Ronge. [ 24 ] There is no doubt from these heartfelt statements that the lives of Cora and Candace have been utterly shattered by this incident. Their pain and the pain of their friends and other community members, is palpable.

By all accounts, Simon Grant was almost a saint, thinking of others first, helping vulnerable people and especially helping Aboriginal youth find employment and to carry on with their education. [ 25 ] I cannot find the words that would accurately describe the sense of loss and the pain felt by so many. It is abundantly clear that the communities of the La Ronge District have been badly hurt and rattled by this senseless act. [ 26 ] Suffice to say the Court was made painfully aware of the family and community loss resulting from this incident.

The courage displayed by each individual who shared their feelings and spoke from the heart and soul is inspiring and at the same time devastating in its core truth. THE LAW [ 27 ] The YCJA sets out the sentence for manslaughter as a maximum of three years – that is two years in custody and one year in community supervision. There is no minimum sentence. The Crown can, as it has done here, apply to the Court for an order that an adult sentence be imposed. Section 72(1) and (2) of the YCJA read as follows: 72(1) 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 behavior.

(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1) it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) in on the Attorney General. [ 28 ] The two prong test must be applied by the Court and the burden of proof lies upon the Crown. A discussion of just how much of a burden the Crown bears will follow. [ 29 ] The YCJA contains the presumption that a youth, that is a person who is less than 18 years old at the time of the offence, is less morally blameworthy than an adult would be simply because his or her level of maturity is not yet developed sufficiently to make adult- like decisions. Thus the words “diminished moral blameworthiness”. In section 3(1)(

a) 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 the 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 behavior; (

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 young persons and their reduced level of maturity, ( iii ) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including the right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behavior and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (

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 persons’ rehabilitation and reintegration, and ( iv ) respect gender, ethnic and cultural linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; [ 30 ]

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; (

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; and (

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.

(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. [ 31 ] The Crown must prove that the accused was not so mentally or emotionally underdeveloped or so un-adult like in his ability to make decisions, especially decisions that required moral analysis, that the presumption of diminished moral blameworthiness or culpability is rebutted.

[ 32 ] The Ontario Court of Appeal in R v MW , 2017 ONCA 22 , 346 CCC (3d) 319 stated: [23] …As can be seen from the wording of the legislation, to be successful in an application to impose an adult sentence, the Crown must satisfy both parts of the test. . . . [94] …the pre-2012 test was set out in a way that allowed for a blended analysis of the Presumption and of accountability, whereas the new test is expressly structured as a two-pronged test in which the Crown must satisfy both prongs. . . . [97] In my view, the focus must necessarily be on the issue of maturity.

The Presumption assumes that all young people start from a position of lesser maturity, moral sophistication and capacity for independent judgment than adults. Bala and Anand explain at p. 4: Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self - awareness, and they may lack empathy for those who may be the victims of their wrongful acts.

Youths who are apprehended and asked why they committed a crime most frequently respond: “I don’t know.” This seemingly impertinent answer may simply reflect a lack of forethought or self-awareness, or non-responsiveness due to embarrassment and the shame of hindsight, or it may signal a more significant cognitive issue.

Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. [98] In order to rebut the Presumption the Crown must satisfy the court that, at the time of the offence, the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to him or her. [ 33 ] The assessment of when the youth is presumed to be less morally blameworthy is the date of the offence – in this case, a snapshot of the accused on April 15, 2017. [ 34 ] The Alberta Court of Appeal in R v JFR , 2016 ABCA 340 [ JFR ] , stated as follows, in reference to

section 72 of the YCJA : [37] With great respect I disagree. Not all young people are similarly situate. Abella, J. in R. v. D.B. , 2008 SCC 25 , 2008 2 SCR 3 spoke of the heightened vulnerability, immaturity and reduced capacity for moral judgment of young persons. I am certain that she understood full well that such indicia are variable and always a matter of relative degree. Nor are the foundational factors exhaustive.

The components of the trio of indicia cited by Abella, J., I suggest, include: diminished empathy, heightened impulsiveness, susceptibility to peer pressure and diminished ability to reason and appreciate the consequences of one’s actions.

All of these must be assessed on an individualized basis by the sentencing judge whose task is both delicate and difficult. [ 35 ] It is not possible to review all of the relevant case law in this decision but suffice to say virtually all of them focus on the two prong test that the Court must apply. [ 36 ] So, what exactly is that onus or burden of proof that the Crown bears? [ 37 ] In R v J.M.O. , 2017 MBCA 59 , 353 CCC (3d) 141 Justice Mainella stated, at para 61: [61] The task placed on a youth justice court by Parliament under section 72(1) of the YCJA is a difficult and delicate one.

In R v BL , 2013 MBQB 89 , I explained the nature of the onus on the Crown under section 72(1) of the YCJA in the following manner (at para 36): The Crown bears the onus of proof in this application. See s. 72(2) of the YCJA . The onus to order a young person liable for an adult sentence is neither proof beyond a reasonable doubt nor proof on a balance of probabilities. Rather, the standard is one of satisfaction after careful consideration by the court of all the relevant factors...

However, the Crown must prove beyond a reasonable doubt any underlying aggravating factors relied on for the court’s ultimate determination.

[ 38 ] In a recent decision by Provincial Court Judge S. Anand in R v Henderson , 2018 SKPC 27 , [ Henderson ] suggests that the onus on the Crown is “beyond a reasonable doubt”. However, the Saskatchewan Court of Queen’s Bench in R v L.M. , 2017 SKQB 336 , had previously affirmed the position taken by the Manitoba Court of Appeal in J.M.O. , and that is still Saskatchewan law. [ 39 ] It must also be noted that the Court must pay attention to any psychological or psychiatric conditions that the youth has been diagnosed with. These conditions can, but do not always, have a bearing on moral culpability.

For example, the Manitoba Court of Appeal stated in R v Friesen , 2016 MBCA 50 , 330 Man R (2d) 32 that a youths moral blameworthiness may be reduced if he suffers from an FASD related diagnosis and there is a connection between that condition and the offence for which he stands charged. [ 40 ] I must stress here and now, that W.M. has never been tested for or diagnosed with FASD . This is simply an example. I can say that I place little weight on the suspicion that the accused may suffer from FASD. [ 41 ] There may be suspicions that this accused suffers from many psychiatric and psychological conditions.

However, I must deal in reality, not in suspicions or possibilities. [ 42 ] So, firstly, has the Crown rebutted the presumption of diminished moral blameworthiness or responsibility? I must look at the bigger picture and not focus as with a microscope on this factor or that factor. [ 43 ] I agree with the Crown that the accused made many decisions in the planning and the carrying out of this robbery that are sufficiently sophisticated that they are in my opinion, adult- like.

These are decisions that I have concluded he made based on his own admissions contained in the Agreed Statement of Facts, or the evidence provided by witnesses at the hearing detailing conversations they had with the accused. Also there are inferences that I have drawn about decisions he must have made for the facts to have unfolded the way they did:

a) personal knowledge about Simon Grant and his restaurant business, including the layout of the restaurant, the fact that one can order take-out food, and that Simon himself may well be the person delivering the food, the personal belongings of Simon Grant such as the Rolex watch. Plus I infer that he would have concluded that Simon Grant did not keep a gun or other dangerous weapons at the restaurant for self-defence;

b) talking frequently about the Rolex watch, its potential value and how he wanted it;

c) recruiting the two co-accused to help him;

d) initially developing Plan A with the two co-accused to rob a drug dealer who turned out to be away from La Ronge, and then very quickly turning to Plan B, that is to rob Simon Grant. I am skeptical that Plan A ever really existed – why rob a drug dealer who may be under police surveillance and who may have cash but almost certainly not the kind of cash the Rolex watch might sell for – W.M. believed it was worth as much as $60,000.00;

e) planning a food order and delivery to entrap Simon Grant;

f) obtaining weapons that is two handguns for the co-accused and a baseball bat for himself;

g) obtaining masks for all three individuals to help conceal their identities;

h) patiently waiting for 40 minutes for Simon Grant to arrive at the mobile home with the food order;

i) developing an alternative plan to rob Simon Grant after he failed to show up with the food order;

j) the alternative plan was to go straight to the restaurant. He used his prior knowledge of the restaurant layout to access the back of the restaurant;

k) discussing and predicting how Simon Grant would likely give up very quickly;

l) the decision to escalate the level of violence when Simon Grant did not give up so easily, instead of retreating. At this critical juncture, a robber has to make a very important decision – now is the time I retreat as I know, or I should know that if I don’t, the level of violence will greatly increase and the likelihood of someone being severely injured or killed is now extremely high. He made the decision to escalate instead of retreat;

m) the decision to search the pockets of Simon Grant for money or valuables, the decision to take the car keys of Simon Grant and exit the restaurant to search Mr. Grant’s vehicle for money and valuables (that decision made by co-accused T.T.) the joint decision to empty the restaurant till;

n) create an escape plan and ignore the inner-voice telling him that Simon Grant was severely injured and quite possibly dying and make the decision not to phone 911 for medical help for Simon Grant. In retrospect it’s not likely the 911 call would have made any practical difference however it does, in my view, speak volumes of the intentions of the accused and of the callous disregard he had for his victim; and

o) During the robbery Simon Grant is physically moved away from the security camera, whether intentionally or fortuitously, but if intentionally, as I suspect it was, this also is a well thought out adult- like plan. There is also the prevailing opinion of the witnesses called by the Crown that the accused is quite intelligent and manipulative and I conclude, charismatic.

All of these characteristics are from a common sense point of view, much more consistent with an adult level of maturity than that of a youth. [ 44 ] In referring back to the Alberta Court of Appeal in J.F.R. , reference was made to Abella, J. in R v D.B. , 2008 SCC 25 referring to four factors to consider on the issue of diminished moral blameworthiness. They are: 1. Diminished empathy – this accused showed little empathy to Simon Grant. However, as indicated, the psychological testing showed he could be selectively empathetic. 2.

Heightened impulsiveness – with the planning W.M. put into this robbery, it would seem he is anything but impulsive. This is not a case of three teenagers walking by a business and concluding “let’s go get some money”. This was targeted because of the potential treasure at the end of the rainbow – the Rolex watch. 3. Susceptibility to peer pressure – it is clear that W.M. is the planner of this and was not subject in any way to peer pressure. 4.

Diminished ability to reason and appreciate the consequences of ones actions – initially W.M. believed that Simon Grant would give up without a fight and not much more would be required. However, when Simon Grant put up a fight, W.M. made a conscious decision to escalate the violence to achieve his goal.

Regardless of the consequences. [ 45 ] For all of the above reasons I have concluded the Crown has met the onus of proof that the presumption of diminished moral responsibility or blameworthiness is rebutted. [ 46 ] The second prong of the test is often referred to as the “accountability” test – would a youth sentence be of sufficient length to hold this accused accountable for his offence. [ 47 ] I must examine:

a) the seriousness and circumstances of the offence;

b) the age, maturity and character which includes how sophisticated and intelligent this accused is;

c) background and criminal record of the accused; and

d) any other relative factors.

[48] A maximum youth sentence for this would be three years, that is two years secure custody and one year under communitysupervision. If an IRCS sentence was imposed the difference would be enhanced funding and supervision for the youth while both insecure custody and under community supervision.

The real problem I have with the IRCS sentence is the length of time funding isprovided which is a maximum of three years, and the fact that it is truly optional – in other words – if the accused spoke to his lawyer ashe has about how serious he is about using the resources available through IRCS to help him with rehabilitation and reintegration, andthen once Court imposed his sentence and was effectively “functus officio” there would be nothing to stop this accused from saying “I’mdone with programming”. “I am going to do my two years in jail or maximum of three years if I breach my community supervision, andthen I am free.” [49] When I examine the incident as a whole I see quite literally an orgy of violence and blood.

The autopsy report describes theextreme beating: Simon Grant sustained the following injuries: 1. multiple fractures in the head 2. multiple hemorrhages in the brain 3. multiple rib fractures 4. multiple trauma to the head and back 5. multiple bruises and cuts [50] I then look at the fact that Simon Grant was one of the only adult persons in the accused’s entire life who was kind to him, whonurtured and cared for him and who really tried to help him. [51] I am aware that the accused and his two co-accused were under the influence of alcohol and cocaine when this incident occurredand that part of the reason for doing this was to purchase more alcohol and cocaine. [52] However, the relatively sophisticated planning that preceded this, combined with the extreme and such unnecessary violenceutilized to successfully carry this robbery out makes this crime so reprehensible.

Add to this fact that Simon Grant was so kind to theaccused. It is difficult to think of a more evil and unjustified attack. [53] Notwithstanding that the Supreme Court of Canada in R v P.(B.W.), 2006 SCC 27, 218 CCC (3d) 298 held that the principles ofaccountability mandate an “offender – centric” approach that is not aimed at the general public and thus eliminates general deterrence asa principle of sentencing, the Court did not exclude damage done to the community as a factor in sentencing. In R v Simpson-Rowe, (ON SC), 2009 CarswellOnt 2270 (Ont Sup Ct) stated “I would further note that the

preamble to the YCJA refers tohaving a youth criminal justice system that commands respect. I assume that the respect therein referred to is the respect of the public.

Ifvictims and the public at large do not view sentences imposed as being meaningful from their perspective, than this system will notcommand the respect it must have.” [54] In my view, the extreme violence, the relatively sophisticated robbery plan and the kindness and friendship shown by SimonGrant to W.M. causes right-thinking members of society with all the relevant knowledge to demand a sentence that reflects their shockand horror relating to this incident.

And in my view, a youth sentence will not and cannot achieve that. [55] More importantly, the risk posed by W.M. once he is out of custody cannot in my view, be safely managed with a youth sentence. Three years would be the maximum amount of time to help this young man deal with the ghosts of his past, overcome personality,psychological and psychiatric disorders and deal with what appeared to be a serious addictions problem. [56] Dr. Quinn testified some of these issues can take five to ten years or even longer to correct.

In my view, a youth sentence wouldalso fail on this account – that is the critical components of rehabilitation and reintegration. [57] The Crown has established that a youth sentence would not be of sufficient length to hold this accused accountable. I haveapplied the test to both prongs of

section 72 of the YCJA in accordance with prevailing Saskatchewan law. I have considered carefully

the rather detailed Pre-Sentence Report. And I add by way of editorial comment that even if the onus of proof on the Crown is beyond a reasonable doubt as opined by Judge Anand in Henderson , the Crown has, in my view, reached that burden as well. [ 58 ] On the issue of sentence, I have thoroughly reviewed the Gladue factors of the accused. It is hard to imagine a more challenging childhood than W.M. has had. He has been in foster care off and on since he was four years old and was physically, emotionally and sexually abused.

In his entire life he probably has not had more than 18 months of structured and positive adult reinforcement. I have also paid very close attention to the diagnosed and suspected psychological and psychiatric conditions of the accused. But for the Gladue factors, I would likely have considered an even higher sentence than I will impose because of the rather unique relationship of W.M. to Simon Grant and the horrifying and senseless violence that was used in this incident. [ 59 ] The co-accused Austin Bird was sentenced to seven years.

I agree with the Crown that there is no evidence that either co-accused would have tried to rob Simon Grant but for the influence of W.M. In fact, there is no evidence that Simon Grant was even on their radar screen. I find that clearly W.M. is the architect of this robbery and this attack. His sentence must be greater than that of the co-accused Austin Bird. By way of editorial comment, the co-accused T.T. is likely the very youth contemplated by the many cases who was immature and easily led by peer pressure. Not W.M. [ 60 ] I am aware that W.M. had no criminal record when this occurred.

However, I will not ignore the severe violence and senselessness of this attack. If one decides to rob a victim, just do it. Get it over with. But when one beats and beats and beats the victim with a baseball bat and encourages others to beat a defenseless victim with guns and to kick and punch him while he is down, it moves this offence into virtually the most serious violent offence possible in a manslaughter context. I therefore sentence this accused to nine years in custody. He has earned credit for roughly 25 months, he has been in remand which when enhanced by a factor of 1.5 equals 37.5 months.

I chose to round that off to 38 months. Thus, the sentence going forward is 70 months or alternatively five years and ten months. [ 61 ] In addition, there is a mandatory DNA order as well as a mandatory firearms prohibition order under

section 109 of the Criminal Code . That sentence is concurrent on all three counts. [ 62 ] Section 76(1) of the YCJA sets out that the Court shall make an order that the youth serve the sentence imposed either in a Youth Facility, or a Provincial Correctional Center, or a Federal Penitentiary. I ordered and received a Placement Report as contemplated by that section. The “Placement Hearing” is part of the sentencing process and sentencing is not complete until that is conducted. That hearing was conducted in Prince Albert Provincial Court on Monday, August 12, 2019.

Virtually all persons interviewed, including W.M. and his mother, indicated that W.M. should serve his sentence in the Federal Institution. The only exception to that opinion was the psychologist, Dr. Donna Torrens, who would prefer the sentence be served in a youth facility. [ 63 ] The Crown took the position that the sentence should be served in a Federal Institution, and the defense took no position on placement. This is not surprising given that W.M. spoke fairly strongly about his preference to remain in the Federal Facility.

Accordingly, after applying the YCJA , after reading the reports and after hearing from counsel, I ordered the sentence be served in a Federal Institution. It should be noted that when I initially delivered this decision on May 30, 2019, I, along with both Crown and defense overlooked the requirement for a placement hearing under

Section 76 of the YCJA . At that time, W.M. was taken to the Penitentiary in Prince Albert, and effectively started to serve his sentence on that day. I held the view that while the serving of custodial time portion of his sentence began May 30, 2019, that sentence was not complete until the Placement Order on August 12, 2019. I specifically asked both Ms. Buydens and Ms. Fafard if they agreed that sentence was complete on August 12, 2019, and thus the 30 day appeal period commenced that day. Both lawyers conceded and agreed with this statement.

Thus, while W.M. started to serve the custodial portion of his sentence on May 30, 2019, sentence was not actually complete, and thus the appeal period did not start to run, until that day (August 12, 2019). Dated this 12 day of August, A.D. 2019, at the City of Prince Albert, in the Province of Saskatchewan.

R. J . L a n e , J