2012 MBPC 22, 2012 MBPC 22

2012 MBPC 22 THE PROVINCIAL COURT OF MANITOBA THOMPSON CENTRE BETWEEN : HER MAJESTY THE QUEEN, ) Mr. D. Gray and Ms. J. Brown ) For the Crown ) ) -and- ) ) S.L., ) Mr. R. Janis, for the Accused young ) person ) Accused. ) ) ) Reasons for Decision ) Delivered on the 2 nd day of ) February, 2012. REASONS FOR DECISION REDHEAD, PJ Introduction [ 1 ] On March 29, 2011, the second day of a five day preliminary inquiry, two co-Accused, K.W. and S.L., entered guilty pleas to the offence of second degree murder. The co-Accused are both young persons.

Before commencement of the preliminary inquiry, the Crown gave notice that it would seek an adult sentence on both Accused. The Crown later withdrew it’s application for an adult sentence on one Accused, K.W. and subsequently on September 1, 2011, K.W. was sentenced as a young person and received the maximum sentence for this offence: 2 years secure custody and 5 years conditional supervision. [ 2 ] This is the Crown’s application for an adult sentence to be imposed on S.L.. The application is opposed by the young person.

The Facts [ 3 ] To briefly summarize, S.L. and K.W. had on two separate occasions, broken into the residence of Mr. Woodman (hereinafter the “victim”), who was also a youth, in an attempt to rob him. On both occasions, the robbery was interrupted by the victim. The first robbery resulted in Mr. Woodman having to forcibly remove the intruders from his residence. The second robbery resulted in much more tragic consequences. The victim was brutally beaten and left for dead and in fact he did die. [ 4 ] The facts were submitted to the court by way of an agreed statement of fact.

On April 2, 2009 during the day and into the evening, S.L. and K.W. were observed together. Both S.L. and K.W. attended a party until approximately midnight and then left together. The victim was present at the same party until approximately 1:00 a.m. When the victim left, he informed those at the party that he would be

returning to his home at 90 Mikinak Bay. [ 5 ] During the early morning hours of Friday, April 3, 2009, S.L. was at a residence where he was overheard recounting that he had attempted to rob the victim and had been involved in a physical altercation with him. In addition, S.L. had in his possession a sword stolen from Mr. Woodman, that he was storing at another residence. [ 6 ] That same day, at approximately noon, the victim attended the same residence where S.L. had left the sword.

While there, the victim informed Cheryl Woods and Candace Moore that when he returned home during the early morning hours of April 3, 2009, he discovered S.L. and K.W., who were both intoxicated, inside his residence. [ 7 ] He discovered S.L. on the main floor (the upstairs) and K.W. on the bottom floor (basement). S.L. had a number of antique knives and a dark green suitcase containing three bottles of liquor in his possession, while K.W. had money, all of which belonged to the victim. The victim was able to retrieve the money from K.W.

However, the victim and S.L. were involved in a physical altercation before the victim was able to successfully get S.L. to leave the residence. [ 8 ] The victim advised Ms. Woods and Ms. Moore that he was able to retrieve everything that S.L. and K.W. had attempted to steal, except for one sword. Ms. Moore recognized the sword as the one that had been previously left at the residence by S.L.. The sword was eventually returned to the victim. [ 9 ] After the first break and enter, S.L. was heard telling people that he had been injured in a fight the night before. He was also observed walking with a limp.

S.L. was also heard describing that he had broken into 90 Mikinak Bay and was caught by the victim. S.L. was heard talking about his intention to return to the residence to rob the victim of the money as well as try to take the alcohol that he had been unsuccessful in stealing during the previous attempted robbery. S.L. was further overheard to say that he was going to prevent the victim from “ratting” on him and K.W. about the previous break and enter.

S.L. talked about returning to the victim’s residence to “beat up” the victim. [ 10 ] On April 4 th , 2009 between 1:00 and 2:00 a.m, S.L. and K.W. were observed leaving 15 Wapoos Bay. S.L. was observed to have a baseball bat in his possession. [ 11 ] S.L. and K.W. went to 90 Mikinak Bay gaining entry through an unlocked door. K.W. went downstairs and S.L. went to the main floor. K.W. could hear S.L. yelling “where’s the money?!”. K.W. ran upstairs after he heard the sound of a bat hitting somebody and the sound of someone falling to the floor.

K.W. observed blood all over the main floor and the living room furniture in disarray. [ 12 ] K.W. observed S.L. standing over the victim, and the victim holding onto S.L.’s legs. S.L. pushed the victim onto the floor and threw the bat to K.W., who used it to pin the victim to the floor while S.L. searched the main floor of the residence. S.L. then retrieved the bat from K.W. and hit the victim on the head while he was lying on the floor. [ 13 ] S.L. and K.W. left the residence.

S.L. later had in his possession a number of swords and a suitcase containing bottles of liquor. [ 14 ] S.L. and K.W. then returned to 15 Wapoos Bay where both were observed to pace back and forth. K.W. was observed to be nervous, shaken and withdrawn. S.L. was heard telling K.W. to “just take a shot, bro; just forget about it.” S.L. was also overheard making comments such as “bro, I did something stupid” and “I don’t know what I did.” S.L. was later heard to say that he had returned to 90 Mikinak Bay with K.W. to do a break and enter and that he had beat the victim with a bat.

S.L. was heard bragging about smashing the victim in the head with a bat until he was shaking on the ground and then stomping on the victim’s head before leaving the residence. [ 15 ] Throughout the morning and into the early afternoon of April 5, 2009, S.L. and K.W. were observed together. K.W. was observed as being quiet, distant and not himself.

S.L. was overheard referring to himself as a killer, describing the sound of the bat hitting the deceased’s head, and describing an inability to eat because all he could smell or taste was blood. [ 16 ] The victim’s body was discovered by friends at approximately noon on April 5 th , 2009. [ 17 ] After the body was discovered, K.W. was observed to be shaking and crying.

S.L. was observed as looking nervous and commented that he could not recall what had happened but that the victim was going to “rat him out” and he was going to be looking at serious jail time. [ 18 ] On April 6 th , 2009 K.W. turned himself in at the Leaf Rapids RCMP detachment. Victim Impact Statements [ 19 ] As can be expected, the sudden violent death of a loved one has taken a heavy toll on family members and will continue to do so.

The deceased’s mother, father and sister all provided victim impact statements to the court. [ 20 ] The deceased’s mother described a feeling of shock and confusion upon learning about the death of her son. At one point, she had been unable to sleep and required sleep aids. She felt physically ill at the thought of her son fighting for his life and of the suffering he endured. [ 21 ] She has found it difficult to participate in various family celebration events such as weddings and birthdays. She feels guilty at times and questions how can she enjoy anything when her son is dead.

She has lost the ability to trust others. She described having feelings of intense anger that she never thought were possible.

[ 22 ] She has taken all her vacation time to attend the court proceedings. [ 23 ] The deceased’s father described his attempt to complete the victim impact statement on several occasions, only to have to stop due to the painful emotions he experienced. He has experienced psychological trauma and heartbreaking emotions. He was the one who had to tell the deceased’s mother and sister that Keith had been murdered. An experience, he says, he does not wish on anyone. [ 24 ] He remembers his son as someone who was full of potential and questions how something so senseless like this could have happened.

He questions what could have or should have been done to prevent his son’s death. [ 25 ] He becomes upset at the violence that is so much a part of today’s society. He has reached out to families that have suffered similar tragedies.

He adds that his life will never be the same without his son. [ 26 ] He has attended all of the court proceedings in Thompson and as a result has incurred great financial costs associated with travel, hotel and meals as both he and his daughter reside in Leaf Rapids. [ 27 ] The deceased’s younger sister described how she felt betrayed after learning that people she had known since early childhood, had murdered her brother. She questioned why she should continue on with anything. She described her brother as someone who was smart. She had to take medication to cope with her depression.

She described how the death of her brother has affected her relationships with others, in that people were not sure how to approach her. She still feels like she can save her brother but knows he is gone and there is nothing that can bring him back. She wishes that she could have her brother back. She has not been able to attend school. She has described an inability to trust others and is fearful that someone else in her family will be killed.

The Test for the Imposition of an Adult Sentence [ 28 ] Section 72(1) of the Youth Criminal Justice Act (YCJA) sets out the factors to be considered in determining whether or not an adult sentence should be imposed. Section 72(1) states: [ 29 ] In making a decision on an application heard in accordance with

section 71, the youth justice court shall consider the seriousness and circumstances of the offence, 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 than an adult sentence be imposed. [ 30 ] In assessing whether an adult sentence should be imposed, the court must look at the factors under sections 3, 38 and 72 of the YCJA and determine that a youth sentence would be of insufficient length to hold the young person accountable for his or her offending behaviour. [ 31 ] The purpose of sentencing under the YCJA is to hold a young person accountable for an offence by imposing a sentence that will have a meaningful consequence for the young person and will promote his or her reintegration into society (s. 38(1) of the YCJA). [ 32 ] In R . v.

Ferriman , [2006], O.J.

No 3950 , 71 W.C.B. (2d) 139 (SCJ) at paragraph 38 , McCombs J explained accountability in the context of youth sentencing as follows: For a sentence to hold a young person accountable it must achieve two objectives: It must be long enough to reflect the seriousness of the offence and the offender’s role in it, and it also must be long enough to provide reasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society.... [ 33 ] A youth justice court that imposes a youth sentence shall determine the sentence in accordance with the principles under s. 3.

In addition, the court shall consider the following principles as set out in s 38 (2) of the YCJA: (

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 harm done to the victims and the community. [ 34 ] In addition, in determining a youth sentence, the court shall take into account the following factors as set out in s. 38 (3): (

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

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

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

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

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

f) any other aggravating or mitigating circumstances related to the young person or the offence that are relevant to the purposes and principles set out in the section. [ 35 ] When the Crown seeks to have a youth justice court impose an adult sentence on a young person, it bears the onus of “satisfying” the court that a youth sentence would not be of sufficient length to hold the youth accountable. In addition, in considering the onus of proof under s. 72(2), the court must also consider the very serious consequences of an adult sentence on a young person.

Factors to be Considered in an Application for an Adult Sentence under 72(2) Seriousness and Circumstances of the Offence [ 36 ] The autopsy determined that the victim died of craniocerebral injuries due to blunt force trauma. He had a number of abrasions and contusions to his upper and lower limbs. Dr. Balachandra determined that there were at least 28 blows to the head, resulting in a fracture to the skull. In addition, there were no less than 19 lacerated wounds to the sides and back of the head, ranging in size from 1.5 centimetres to 7.5 centimetres in length.

The victim suffered a number of defensive wounds; multiple contusions and abrasions on the back of the hands and an x-ray revealed broken fingers of his right hand. The victim’s internal organs were pale in colour indicating that he had suffered major blood loss prior to death. [ 37 ] The Crown submitted that the circumstances in this offence were horrific. S.L. and K.W. attended to the home of the victim in the middle of the night to commit a home invasion and to seek retribution.

The victim was beaten to death and not discovered until some time later. [ 38 ] The Crown has pointed out several aggravating factors relating to the murder itself, which include: (

i) The brutality and duration of the beating, which included no less than 28 blows to the head and would have lasted several minutes; (ii) The fact that a weapon was brought to the residence and used in the attack; (iii) That two people were involved in the incident, even though it is agreed that K.W. played a lesser role; (iv) The premeditation involved in the subsequent break and enter; (

v) The attack occurred in the victim’s home, which fits the category of a home invasion and is an aggravating factor under s. 348.1 of the Criminal Code ; (vi) The time of the attack, which took place at night, when help was less likely to arrive; and, (vi) Neither co-Accused called for help. [ 39 ] The Crown also points out significant aggravating factors with respect to S.L’s post offence conduct, which included:

a) After the offence S.L. returned to a party and continued to consume alcohol. He encouraged his co-Accused, to “just take a shot, bro; just forget about it”;

b) He bragged about triumph over his rival stating that he beat the victim by smashing him in the head with a bat until he was shaking on the ground;

c) He enlisted the help of a friend in an attempt to conceal his blood soaked running shoes worn at the time of the offence;

d) He discussed fleeing the community after the offence; and

e) After he learned of the victim’s death, he justified his behaviour by stating that the victim was going to “rat him out”. [ 40 ] Defence counsel, in his written submissions, conceded that the offence was very serious and there was a degree of brutality involved in its commission. However, defence argued that the offence was fuelled by alcohol consumption and was precipitated by a history of antagonism between the Accused and the victim. Defence argued that the death of the victim was not the intended result, and that it was not something that had been contemplated by the Accused.

He argued that this is supported by the Accused’s realization that the victim had died. [ 41 ] With respect to the offence, S.L. stated that when he entered the residence, the victim was not there. He was not able to recall all the details and stated that he “blacked out” and was “snapping in and out of it”. At the time of the preparation of the presentence report, S.L. attempted to blame alcohol in an attempt to reduce his responsibility for his role in the offence.

Age, Maturity, Character and Background of the Offender [ 42 ] S.L. is 19 years of age and was 16 at the time of the commission of this offence. [ 43 ] S.L. was initially referred to Dr. Miroslaw Grygo, a contract psychologist, for the completion of a court-ordered forensic assessment. In addition to personally assessing S.L., Dr. Grygo referred S.L. for a youth forensic services assessment which was conducted by Dr. Hygiea Casiano, on December 7, 2009. [ 44 ] S.L. was assessed by Dr. Casiano as having post traumatic stress disorder, conduct disorder and substance abuse issues.

S.L. had reported that he experienced flashbacks of the offence, auditory hallucinations and diminished interest during his first eight months in custody. [ 45 ] Based on his interview with S.L., the doctor noted that S.L. had a pattern of behavioural problems and justification for those behaviours in addition to a pattern of abusing substances. S.L. admitted that he admired and copied delinquent behaviours of older brothers. His defiant behaviour started early in life. S.L. started fighting with other children before he was 10 years old, perhaps as a coping mechanism from witnessing violence as a child.

S.L. reflected that he never fought fairly and would always use some type of weapon. He often fought to prove himself or to increase his popularity with girls. [ 46 ] S.L. was able to describe his experiences and delinquent behaviour in a very clear, matter of fact manner, without any visible sign of emotion or acknowledgment of the impact his behaviour has had on others, except for one brief moment in the interview. Dr.

Grygo explained that this type of callousness was consistent with his conduct disorder and explained that this was an important factor to consider in the offender’s rehabilitation programming, as the callous unemotional types of conduct disorder, particularly those that start in early childhood, are more persistent and difficult to overcome. Dr.

Grygo explained that the offender’s lack of emotionality could also be representing his style of coping with his multiple early traumas and his own persistent violations of other people and their property. [ 47 ] S.L.’s full scale IQ indicated a below average general intellectual ability. His working memory index and perceptual reasoning index were also in the borderline range. His verbal comprehension index and processing speed index were slightly higher but fell in the borderline-low average range.

It was noted that given these results, he can be expected to experience challenges in most academic subjects and will require a great deal of assistance in making meaningful academic progress.

S.L. can also be expected to experience difficulties in most areas of his functioning as a result of his intellectual deficiencies. [ 48 ] Academically, S.L. was assessed at a grade four-five equivalency in reading and mechanical arithmetic. [ 49 ] At the time of the first assessment, S.L. presented with a relatively high risk for future violence with the following risk factors: history of violent and non-violent offending; early initiation of violence; exposure to violence; poor school-achievement; delinquent peers; poor coping skills; anger management problems; low empathy/remorse; risk taking/impulsivity; and extensive substance use. [ 50 ] The assessment concludes by stating that as S.L. does not seem to have any periods of significant duration of positive community functioning, an extended period of supervision, after completion of the incarceration period of his sentence, may be necessary to help S.L. establish himself in a pro-social manner.

A well developed network of community support may also be necessary for his future adjustment. [ 51 ] S.L. was referred back to Dr. Casiano for a further forensic assessment in preparation of his sentencing. [ 52 ] In discussing the incident with S.L., S.L. told Dr. Casiano that he had broken into the victim’s residence and taken several items, including swords and alcohol. S.L. advised that when he returned the second time, he was surprised to see the victim, who was expected to be out at a party. S.L. stated, “when the guy showed up stuff happened.

I got scared and I beat him up”. [ 53 ] The doctor noted that S.L. expressed “much regret” however, his explanation as to how the offence occurred drastically minimized the extent of his pre-meditation and involvement. [ 54 ] In the most recent forensic assessment, he expressed a desire to apologize to the victim’s family. He also expressed a desire to

change and make better choices, including no longer being affiliated with a gang. [ 55 ] S.L. also no longer met the criteria for post-traumatic stress disorder or conduct order as was the case in the initial assessment. He was also not suffering from any major mental illness. [ 56 ] It was noted that S.L. appeared to have gained insight into his difficulties, and displayed a positive attitude. More social supports in custody, a lack of access to destabilisers such as alcohol, as well as structure at Aggasiz, were mitigating his risk for recidivism. Dr.

Casiano noted that S.L. still continues to have several historic risk factors for recidivism including the early age of his first offence, a history of previous violence, early maladjustment, prior detention failure, substance abuse problems, and gang involvement. In Dr. Casiano’s opinion, S.L. will still require an extended period of supervision once released from custody to encourage him to engage in pro-social behaviour.

Substance abuse treatment and vocational training will decrease S.L.’s chance of recidivism. [ 57 ] Overall, S.L. was rated as a high risk to reoffend with the significant risk factors of education/employment, family/marital, leisure/recreation, alcohol/drug problems, pro criminal attitude and antisocial pattern. Previous Record [ 58 ] S.L. has the following entries on his youth record: [ 59 ] On June 13, 2006 he was convicted of nine counts of break and enter, five counts of failing to comply with a recognizance, one count of assault, one count of mischief under $5,000.00, and one count of theft over $5,000.00.

He was sentenced to 66 days custody and 34 days supervision in the community followed by 18 months of supervised probation. On August 21, 2006 the probation officer recommended that S.L. serve the remainder of his community supervision order in open custody after he failed to abide by travel arrangements that were made for him.

However, S.L. was permitted to remain in the community. [ 60 ] On May 29, 2008 he was convicted of two counts of break and enter, one count of failing to comply with disposition, one count of assault and one count of theft over $5,000.00 and two counts of failing to comply with an undertaking. He was sentenced to 2 years supervised probation. [ 61 ] On March 2, 2009, he was convicted of one count of causing a disturbance and one count of failing to comply with a disposition.

He was sentenced to 10 hours of community service work for each count, for a total of 20 hours. [ 62 ] S.L. has a prior assault conviction on the victim. In addition, the latest conviction of causing a disturbance, related to a physical fight at the Leaf Rapids Town Centre, again with the same victim. Other Factors Behaviour while in Custody [ 63 ] S.L. self-reported to the probation officer that he was punished for institutional misconduct on one occasion. However, Correctional Offenders Management System (COMS) records indicated that he was involved in at least 18 incident reports.

Infractions consisted of testing limits, initiating and supporting negative behaviour, challenging and swearing at group members, swearing at staff and fighting with other residents. The last behavioural incident reported was on February 2, 2011 which was a fight with another resident. [ 64 ] Mr. Travis Mattice, the Accused’s case manager, highlighted the progress that S.L. had made recently. He stated that S.L. has made a fair amount of progress in the past year and has done even better in the past six months.

He commented that S.L. appears to be more considerate of others and doesn’t get drawn into negative interactions with peers. Mr. Mattice was aware that S.L. was attempting to have his gang affiliation removed from the COMS database and was advised that if after one year there have been no gang related incidents, the gang affiliation reference would be removed from his file. He now shows some victim empathy and also shows some emotion when discussing how his actions have affected other people and his family.

He is gaining trust within the institution and has been granted the privilege of working on projects outside of the building on the institution grounds. He noted that he works well with hands-on projects. He also noted that he is a positive leader in his peer group and that if he gets angry, he will calm down and isolate himself. [ 65 ] Defence counsel argues that given the positive progress the Accused has made in the last number of months, an adult sentence in this case is not justified. The sentence imposed must bring accountability to the Accused, but not sacrifice other principles such as rehabilitation.

Training while in Custody [ 66 ] On August 16, 2011 he participated in log splitting training and was respectful and attentive during the training. [ 67 ] While at Aggasiz Youth Centre (“Aggasiz”), S.L. completed Grade 9 mathematics and obtained a meat cutting certificate. He was working on Grade 9 English and Grade 10 mathematics. [ 68 ] Mr. Mattice advised that S.L. has completed anger management, Equip, responsible youth culture, mutual help meetings and an eight week carpentry course.

He is also involved in the trades and cultural program. [ 69 ] He has completed 4 out of 18 sessions of the Youth Substance Abuse Management Program. [ 70 ] S.L. enjoys participating in traditional ceremonies while incarcerated. [ 71 ] Defence noted that the Accused struggles with academic programming but does quite well in programming and vocational activities. Defence submitted that it was noteworthy that that the Accused has recently begun to co-facilitate the Equip Program.

[ 72 ] S.L. stated that he does not wish to return to Leaf Rapids and would prefer to stay in Portage La Prairie to attend school. [ 73 ] In addition to the considerations under s. 72, the court must also consider the purpose and principles of sentencing as set out in subsection 3 (1)(b)(ii) and

section 38 of the YCJA. Subsection 3 provides that the criminal justice system for a young person must be separate from that of adults and emphasize fair and proportionate accountability that is consistent with the greater dependency of a young person and their reduced level of maturity. I will now turn to the s. 38 (2) considerations.

Factors to be Considered under s. 38(2) 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 [ 74 ] This factor is of limited assistance, given that this is a Crown application for an adult sentence to be imposed. The maximum sentence for a youth convicted of second degree murder under the YCJA is 7 years with a maximum of 4 years custody and 3 years conditional supervision. The sentence for an adult convicted of second degree murder is life imprisonment.

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 [ 75 ] Counsel have provided several cases, which will be reviewed later in this decision. However, counsel could point to no sentence imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances.

The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence [ 76 ] This was a serious offence and the circumstances surrounding its commission were horrific. S.L. has taken limited responsibility for his role in this offence and it should be noted that he has attempted to justify his behaviour by claiming that the victim was going to report him for the previous break and enter. In addition, he has attempted to minimize his conduct by stating that he was “blacking out” at the time of the offence.

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 [ 77 ] The Supreme Court of Canada in R . v. Gladue requires that the court pay particular attention to the unique circumstances of aboriginal offenders and consider all available sanctions that are reasonable in the circumstances. A Gladue report was prepared and considered. [ 78 ] S.L. is part aboriginal and belongs to the Nelson House Band.

He considers South Indian Lake to be his reserve as his mother is originally from that community. South Indian Lake has a high rate of unemployment (27.8%). Many issues plague the community, such as substance abuse, domestic violence, sexual abuse, child abuse, child neglect, youth violence, housing shortages, and lack of educational opportunities. [ 79 ] S.L. has never lived in the community of South Indian Lake and was raised in Leaf Rapids.

His mother never attended residential school and S.L. reported to the probation officer that he never witnessed alcohol abuse or violence in the home. [ 80 ] I have considered the Gladue factors. Given the serious nature of the offence, there are no reasonable sanctions other than custody, that I could consider. [ 81 ] I will now move on to the s. 38(3) considerations. Factors to be Considered under s. 38(3) The degree of participation by the young person in the commission of the offence [ 82 ] S.L. was the main contributor to the beating that was inflicted upon the victim.

S.L. broke into the residence on two separate occasions. He made the decision to return to the residence with the intent to steal items that he had had to return. It was not disputed that the 28 blows to the victim’s head were at the hands of S.L. S.L. continued to beat the victim with the bat even after he had fallen to the ground. In addition, he admitted to stomping on the victim’s head. It was agreed that the only time K.W. took possession of the bat was for the brief period he used it to pin the victim to the floor while S.L. searched the main floor of the residence for items to steal.

The harm done to victims and whether it was intentional or reasonably foreseeable [ 83 ] Defence argues that the death of the victim was not S.L.’s intention. The harm done to the victim was the worst kind, his life was needlessly taken in a brutal beating. The victim’s family have been left to deal with the anger, shock and grief that comes with the sudden, violent death of a loved one. The victim sustained at least 28 blows to the head with a baseball bat. The harm done was intentional and the death that resulted was reasonably foreseeable.

Any reparation made by the young person to the victim or the community [ 84 ] It is not possible to make reparation for the loss of a life. In the supplementary forensic report, S.L. had expressed a desire to apologize to the victim’s family for the impact this offence has had on them. In the supplementary presentence report, he stated that he was sorry for the victim’s family and for ending the victim’s life at such a young age. In addition, it will be difficult to make any reparation to the community of Leaf Rapids for this crime. Time Spent in Pre-trial Detention

[ 85 ] The youth has been in custody since the date of arrest for this offence, April 7, 2009. Previous Findings of Guilt [ 86 ] Already addressed in the s. 72 considerations under the heading “previous record”. Aggravating and/or Mitigating Factors [ 87 ] The aggravating factors are:

a) S.L.’s criminal record, which includes several offences for breaking and entering;

b) S.L. was on a court order to stay away from the victim;

c) The use of a weapon in the commission of the offence;

d) There was a certain degree of premeditation;

e) The murder happened in the victim’s home; and

f) S.L. is considered a high risk to re-offend. [ 88 ] The only mitigating factors are his youthful age at the time of the offence and his guilty plea. However, it should be noted that S.L. made the decision to plead guilty only after the start of the preliminary inquiry and after the co-Accused expressed a desire to plead guilty. Background of the Offender [ 89 ] S.L.’s parents have lived common law for approximately 25 years. His mother is a member of South Indian Lake and his father is originally from Nova Scotia. He has five siblings.

His brothers and his father have been involved in the criminal justice system. Both of his parents are unemployed and on social assistance. [ 90 ] S.L. has three youth convictions and was first arrested when he was 13 years old. He has no adult convictions. [ 91 ] His highest completed grade is Grade 8. He reported that his attendance was poor, he was suspended numerous times for fighting in school, was disrespectful to certain teachers, and he failed to complete his assignments. He reported that he often missed school as he went out trapping and was also drinking a lot of the time.

He found school work difficult as he could not focus.

He would not ask for assistance and would sit for hours doing nothing which resulted in him becoming frustrated. [ 92 ] According to records obtained from the Leaf Rapids school, from October 18, 2006 to October 4, 2008, S.L. was suspended approximately 22 times for various reasons, which included: tardiness; skipping school; breaking sports equipment; wandering the hallways; teasing other students; swearing at/being verbally abusive to teachers/Principal; fighting with other students; being disruptive/flicking his lighter in class; vandalizing other student’s work; and threatening another student (the victim in this matter). [ 93 ] He recalls experiencing racism at school in Leaf Rapids and described an incident where the teacher referred to him as a “dirty Indian” and threw a book at him.

He reported that he responded by throwing the book back at the teacher. Neither of his parents attended residential school. [ 94 ] Mr. David Boyce, S.L.’s previous school principle, stated that dealing with S.L’s parents was frustrating. Mr. Boyce felt that S.L.’s mother would often defend her son’s behaviour and often took his side. Mr. Boyce also related that on one occasion, police were called to mediate a dispute between the offender and the victim as both had made threats to kill the other. Mr. Boyce attended the mediation, along with the victim’s father and the offender’s mother.

In the supplemental pre-sentence report, when S.L. was asked by the author of the report as to the outcome of the mediation, he stated that he did not recall attending mediation with the victim. [ 95 ] He started drinking when he was 13 years old and admitted that he has an “alcohol problem”. He stated that he has experienced blackouts after consuming alcohol.

He stated that he has never committed break and enters in order to purchase alcohol or drugs. [ 96 ] He started smoking marijuana when he was 12 years old and has never tried any other type of drug. [ 97 ] Family members described S.L. as being a very good hunter/trapper. Programming Available in a Youth and Adult Facility [ 98 ] The Crown called two witnesses to provide information on the type of programming available in a youth facility and an adult facility. Evidence of Mr. John Patterson Ferg [ 99 ] Mr. Ferg provided information regarding the programs that are offered at Aggasiz.

There is currently a program designed to help youth think and act responsibly. In 2012, cognitive behaviour therapy will be introduced, which will expand into life skills, victim awareness and anger management. Responsible Youth culture is a behaviour based program which teaches youth to act and behave a certain way and is meant to address behavioural issues.

[ 100 ] There are approximately 103 residents at Aggasiz and Mr. Ferg is responsible for making the programs available to the residents. There is one facilitator available to facilitate programming for all the residents. Programs vary in length with the lengthiest being 6 weeks. Groups are limited to 8 to 10 participants and are offered from Monday to Friday. A number of factors determine who is eligible for programming, with the priority being those youth who are scheduled for release within the year. In addition, open and secure residents cannot be mixed together.

Open custody residents have priority over closed custody residents. [ 101 ] The facility has youth as young as 12 and as old as 20. The majority of residents are 16 to 18 years old and come from various backgrounds as well as different locations. [ 102 ] From December 2009 to January 2011, Mr. Ferg was S.L.’s case worker. S.L. completed the “Equip” programs several times and he enrolled in a substance abuse program. At one point, S.L. co-facilitated the “Equip” program, as he had taken it approximately 5 times. S.L. assisted in looking after the animals on the farm and also took the meat cutting program.

He enrolled in some academics but Mr. Ferg commented that S.L. was not strong in this area. In addition, Mr. Ferg testified that S.L. has not taken advantage of all the programming that has been available to him. Evidence of Ms. Sjana Sookermany [ 103 ] Ms. Sookermany is the Manager of Programs at Stoney Mountain Institution (SMI). There are approximately 578 inmates currently housed at SMI. Offenders in the institution are between 18 and 35 years of age. The programs at SMI focus on 3 general areas: violence, substance abuse programming and general criminality.

There are also special programs offered for Aboriginal offenders. Typically, the program length can be anywhere from 4 to 7 weeks with groups generally limited to 10 participants. Ms. Sookermany testified that there are approximately 20 facilitators available to facilitate programming for approximately 578 offenders at SMI. In the 90 days assessment period, the goal is to get offenders as quickly as possible into a program. In terms of a recommendation for programming for S.L, she thought that he would start with the basic healing program and then move on to a computerized assessment for substance abuse. Ms.

Sookermany added that participation in any program is voluntary. [ 104 ] The Crown submitted that it was evident through the testimony of Mr. Ferg and Ms. Sookermany, that there is a much broader range of programming options available in the federal system. In addition, the Crown submitted that the level and depth of programming in the federal system is much greater than the youth system. Offenders are also given the opportunity to progress to Rockwood Institution or a healing lodge, based on the offenders completion of programming.

The Crown argues that this would assist S.L. with his gradual reintegration into society. [ 105 ] Counsel have provided the court with a number of decisions with respect to the imposition of adult and youth sentences. The youth in the cases provided were charged with various offences. Case Law Provided by the Crown: [ 106 ] In R . v. T (J.J.) 2010 MBQB 216 , 257 Man. R. (2d) 129 , the Accused, 15 years of age, was convicted of three counts of first degree murder and three counts of attempted murder.

The Accused and another individual had fired at least 19 shots in the kitchen of a home where a group of people had been celebrating a family birthday. There were several aggravating factors including the number of victims, the use of firearms, the shooting occurred in a residence and the fact that the shooting was gang related. At the time of the offence, there was an outstanding warrant for the arrest of the Accused. In addition, he was on two separate bail orders and a probation order. [ 107 ] The Accused in T (J.J.) had witnessed alcohol abuse and violence throughout his childhood.

He was assessed as being of low average intelligence, but had no cognitive or intellectual impairments. He had been working towards his G.E.D while in custody and had enjoyed special privileges while at the Manitoba Youth Centre (MYC). He had a criminal record, which began at age 13, and he was the highest ranking member of the Indian Posse street gang at MYC, which he used to exercise control over other inmates. He blamed a number of factors for his actions including his impoverished upbringing, gang involvement and claimed not to have remembered the offence.

Justice Suche took note of the offender’s background and also noted the improvements he had made while in custody. However, she determined that an adult sentence was warranted given the serious nature of the charges and societal’s interest in holding J.J.T. accountable for his actions. [ 108 ] In R . v. Morton , 2004 ONCJ 100 , the Accused, who was 14 at the time of the offence and 16 years of age at the time of sentencing, plead guilty to first degree murder. The Accused had carried out a plan to strangle his 14 year old friend to death.

An adult sentence was imposed to provide reasonable assurance of the Accused’s rehabilitation to the point where he could be safely reintegrated back into society. [ 109 ] In R . v. S (C.E.), 2009 MBCA 61 , 240 Man. R. (2d) 107 , the Manitoba Court of Appeal upheld an adult sentence for an Accused who was found guilty of second degree murder and three counts of attempted murder after a gang turf war. The Accused had ordered his co-Accused to shoot two members of a rival gang. An innocent bystander was killed and another wounded. [ 110 ] In R . v.

Logan , 2009 ONCA 402 , 97 O.R. (3d) 270 , the Ontario Court of Appeal upheld an adult sentence for an Accused who was found guilty of second degree murder. The Accused, who was 17 years old at the time of the offence, and a co-Accused, had gone to Logan’s 69 year old partially blind, neighbour’s house, to steal money. The elderly man had invited them into his home. The elderly man was lying on the floor watching television. Logan struck him in the head four to five times with an axe.

Logan and the co-Accused sanitized the house before leaving with cigarettes, a wallet and cash. [ 111 ] In Logan , the Accused had no prior record and had upgraded his education but he posed a high risk to re-offend and had showed little remorse. The Ontario Court of Appeal upheld the trial judge’s decision to impose an adult sentence, given the seriousness of the crime.

The court also commented that even though the Accused was facing similar custodial sentences as an adult as well as a youth, the trial judge was justified in imposing an adult sentence, which would include state supervision for life to ensure the public’s protection. [ 112 ] In R . v. Smith , 2009 NSCA 8 , 241 C.C.C. (3d) 10 , the Nova Scotia Court of Appeal upheld an adult sentence for an Accused who

plead guilty to second degree murder. The Accused, who was 17 at the time of the offence, stabbed a cab driver 14 times in the chest. [113] In Smith, the Accused had an extensive criminal record including a prior conviction for aggravated assault, was involved in thedrug trade and had serious substance abuse issues. Because he had mental health issues, it was difficult to say how long it would take forthe Accused to respond to rehabilitative treatment. An adult sentence was imposed. [114] In R. v. S.(T.D.), 2009 MBQB 54, 237 Man.

R. (2d) 230, the Accused entered a guilty plea to the charge of manslaughter after theCrown closed his case. The Accused was 17 years old at the time of the offence and 21 years old at the time of sentencing. TheAccused, who was intoxicated at the time of the offence, had found the victim sleeping in his ex-girlfriend’s bed. The Accused and twofriends beat the victim to death by punching, kicking and striking him with a hockey stick. [115] In S.(T.D.), the Accused had a dysfunctional upbringing and had been subjected to physical abuse.

T.D.S. had matured while incustody, had been cooperative with staff and had completed some educational programming. He did not acknowledge having asubstance abuse problem and he had gang ties, which he used to his advantage while in custody. His brother was a high ranking memberof the same gang, incarcerated at an adult facility. He was also recruiting new gang members while at the youth facility. [116] In R. v. O. (.A.) (2007) 2007 ONCA 144 , 84 O.R. (3d) 561 (Ont. C.A.) , the Accused, who was 16 years old at the timeof the offences, plead guilty to six counts of armed robbery of convenience stores.

The Accused was on three probation orders at thetime of the offences. [117] In O.(A.), the Accused was assessed as a high risk to reoffend. He had a history of manipulative and deceitful conduct, antisocialattitude and behaviour and showed a lack of remorse. He had a significant criminal record but was noted to be an intelligible youngperson with the ability to attain a university education. He was a positive leader within the institution. The court found that the nature ofthe offence warranted the imposition of an adult sentence. [118] In R. v.

S. (M), 2010 NSPC 53, the Accused, who was 17 years old at the time of the offence, plead guilty to attempted murderafter he went to the victim’s house and shot him in the chest for no apparent reason. The injuries left the victim in a wheelchair for theremainder of his life. [119] In S.(M), the Accused had 14 prior convictions for violent offences. The Accused had not been exposed to drugs, alcohol or abuseas a child, was not immature or mentally ill. He was a “model prisoner” and had family support. However, his mother frequentlyjustified his behaviour.

An adult sentence was required to properly reflect the seriousness of the offence. [120] In R. v. O.(M.), 2011 MBPC, 5, 261 Man. R. (2d), 222, the Accused, who was 17 years old at the time of the offences and 19years old at the time of sentencing, was sentenced as a adult for the charges of aggravated assault and possession of a firearm. Theaggravated assault took place when the Accused and six other members of the B Side street gang mistook the victim as a member of arival gang. The victim was punched, kicked and hit in the head with a bat.

The victim was left with severe brain injury. [121] In O.(M.), the Accused came from a dysfunctional home and had been subjected to physical and sexual abuse throughout hischildhood. The Accused had poor attendance at school, had addictions issues and was a member of a gang. He had an extensive criminalrecord. He did not behave well at MYC and was assessed as a very high risk to reoffend. The Accused expressed remorse about theoffences and wanted to change his life but did not feel he needed any type of rehabilitative counselling or programming, although he didcomplete anger management while in custody.

An adult sentence was imposed, considering the number of aggravating factors present inthe offences. [122] In R. v. S. (C.L.), 2011 MBQB 28, 261 Man. R. (2d) 158 [S. (C.L.)] and R. v. H. (J.J.) 2010 MBQB 177, 256 Man. R. (2d) 59 [H.(J.J.)], the Manitoba Court of Queen’s Bench imposed youth sentences for accused found guilty of second degree murder. [123] In C.L.S., the youth, who was 14 years old at the time of the offence, entered a guilty plea to one count of second degree murderafter she and two other youths beat another youth to death.

The Accused had no criminal record, was remorseful, took advantage ofprogramming while in custody, and was assessed a medium risk to reoffend. [124] In J.J.H, the youth, who was 14 years old at the time of the offence, entered guilty pleas to two counts of second degree murderafter shooting his abusive adoptive mother and adoptive sister. The Accused had no criminal record, took all programming available tohim while in custody but was assessed as a high risk to reoffend.

J.J.H. suffered from a number of mental health issues and was placedon an IRCS maximum youth sentence in addition to the three years he had spent in pre-sentence custody. [125] In R. v. H. (N.), 2009 NSPC 36, 280 N.S.R. (2d) 148 [H.(N.)], the Nova Scotia Court ordered a youth sentence for the accusedwho pled guilty to manslaughter. The Accused punched the 70 year old victim in the eye. Three co-Accused’s continued to punch andkick the victim. The victim died two days later of cardiac arrest. N.H. had a difficult childhood but had a supportive family andcommunity and was willing to address his underlying issues.

While in custody, he completed a number of life skills programs andworked towards completion of his high school. The Accused had a minimal criminal record and had no crimes of violence on hisrecord. The amount of violence (one punch) was noted to be minimal. [126] In R. v. S. (C.), 2008 NSPC 22, 265 N.S.R. (2d) 235, the Accused, who was 14 at the time plead guilty to aggravated assault. C.S.and two other girls beat and tortured another girl for approximately 1 hour. The Accused had an unstructured and difficult upbringingand was a possible candidate for an IRCS sentence, given her diagnosis with conduct disorder.

A youth sentence was imposed. Case Law Provided by Defence: [127] In R. v. T.P.D., [2009] N.S.J. No. 556, 2009 NSSC 332, 284 N.S.R. (2d) 19, the Accused plead guilty to second degree murder. The Accused was 17 at the time of the offence and 19 years old when he was sentenced. The Accused was on the street at 3:00 a.m.selling drugs so he could buy more marijuana. The Accused and the victim argued over money and the Accused stabbed the victim oncein the neck. He ran from the scene, but turned himself in two days later.

[ 128 ] T.P.D . was assessed as a moderate risk to reoffend, if no efforts were made to manage his risk. When he was under the influence of alcohol, his risk for violence increased to the high range. He had a criminal record for a number of offences. The court found that the youth was immature in his decision making ability, was socially immature and that the offence was impulsive and not planned.

The court was satisfied that a youth sentence was of sufficient length to hold the youth accountable for his offending conduct and that the imposition of an adult sentence would sacrifice the principles of rehabilitation, reintegration and long term protection of the public. [ 129 ] The Crown submits that after reviewing the case law, it is apparent that youth sentences were imposed on offenders who engage in significantly less violent behaviour, showed significant remorse, made great strides while in custody in terms of advancing his/her education, and completed all the programming that was available to him/her. [ 130 ] The Crown submitted that the case of T.P.D. can be distinguished because the Accused in that case had underlying mental health issues.

The facts in that case were one stab to the neck of the victim, while in the course of a drug deal. In addition, the offender in T.P.D. , turned himself in to police 2 days after the incident and did not try to minimize his involvement. [ 131 ] I have reviewed the case law which has been provided by counsel. To summarize, in determining whether an adult sentence should be imposed, the court must consider and weigh the factors listed under sections 3, 38 and 72 of the YCJA and determine whether a youth sentence would be of sufficient length to hold a young person accountable for his or her offending behaviour.

Each case will be determined on its facts, having consideration for the particular circumstances of the offender. No one factor will be determinative and although cases may have some similarities, no two cases will be exactly alike. Parity [ 132 ] The parity principle in sentencing mandates that sentences for offenders be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In determining an appropriate sentence for S.L., the court must consider the sentence that was imposed on the co-Accused, K.W.

When considering the principle of parity, the court must also be mindful of the principle of proportionality. [ 133 ] Defence conceded that S.L. is in a different position from K.W. as far as record, participation, background and post-offence conduct.

Even after all this is considered, defence submits that a youth sentence would still be of sufficient length to hold S.L. accountable for his offending behaviour. [ 134 ] The Crown has pointed out significant differences between the two youth, in particular: • K.W. only had one entry on his criminal record with no record for violence or breaches of his court orders; • Prior to the offence, K.W. was attending schools regularly and was achieving good grades.

He participated in extracurricular activities and volunteered in the community; • K.W. was described in his presentence report and the forensic assessment as a follower susceptible to the influence of negative peers; • K.W.’s only participation in the attack on the victim consisted of him pinning the victim to the floor for a brief time; • After the offence, K.W. was quiet, withdrawn and not himself; • K.W. was a “model prisoner” who attended school regularly and attained special privileges shortly after his detention; and • K.W. was forthcoming to the writer of the presentence report and the forensic psychologist who prepared his forensic assessment. [ 135 ] S.L. and K.W. are two very different offenders who engaged in very different conduct in the commission of this offence and as such, their sentences will reflect that.

Defence Submissions [ 136 ] Defence counsel submitted that S.L. was “blocking out” as opposed to minimizing his role in the offence. Counsel points to the fact that S.L. was diagnosed with Post Traumatic Stress Disorder and subsequently treated for it. Defence also responded to the Crown’s submission that S.L. left the victim to die and did not seek out any help by countering that S.L. did not expect the victim to die and that he did not realize how much harm he had done to the victim.

Defence also responded to the Crown’s submission that the conduct of S.L. was very much “in character” by stating that this is not true as he has never murdered anyone before. Defence conceded he has a record for property offences and not for “unrestrained brutality” but he is not, to use the words of counsel, a “serial murderer”. In addition, counsel responded to the Crown’s submission criticizing the manner in which S.L. was reared by his parents.

Defence response was that he is what he is today because of what has gone on in his life, basically that he is a product of his environment. [ 137 ] Defence has pointed to recent improvements that S.L. has made regarding his behaviour as an indication that he is undergoing a process of maturity. Defence highlights an incident in July of 2010, when after S.L. had become upset, he requested that he be moved to

a quiet room to calm down. [ 138 ] Counsel has submitted that the court should take into account the “significant strides” that S.L. has made in the last 8 to 10 months. Conclusion [ 139 ] I acknowledge that S.L. has made some progress in the last 8 to 10 months while in custody and my hope is that this will continue. However, this was a brutal beating which included a pattern of escalating violence, culminating in the victim’s tragic death. There are also several aggravating factors with respect to the offence and this offender which can not be overlooked.

After almost 3 years in custody, S.L. has only recently begun to make some improvements in his behaviour. S.L. has several risk factors for recidivism and will require an extended period of supervision once released from custody in order that his risk can be safely managed. Having considered and weighed the factors under s. 3, 38 and 72 of the YCJA, I am of the opinion that a youth sentence would be of insufficient length to hold S.L. accountable for his offending behaviour. An adult sentence will ensure that he will continue to be subject to state supervision, should he at some future time, be granted parole.

The Crown has discharged its burden, and I am satisfied that an adult sentence should be imposed on S.L. for this offence.