R. v. R.M., 2014 MBPC 18

CITATION: R. v. R.M. , 2014 MBPC 18 Date: 20140429 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Susan Baragar, ) for the Crown ) and ) ) ) R.M., ) Hillarie Tasche, Young Person ) for the Young Person ) ) ) Reasons for Decision delivered ) April 29, 2014 ) Corrin P.J. Restriction on Publication: This judgment is subject to section 110(1) of the Youth Criminal Justice Act , S.C. 2002, c. 1 (“YCJA”), which prohibits the publication of any information that may identify a person as having been dealt with under the YCJA.

INTRODUCTION [ 1 ] Over an approximately eight-month period in 2012, R.M. committed two serious crimes to which he has pled guilty. He was 14 years old at the time of both incidents. [ 2 ] On June 17, 2012 R.M. attended to the 7-Eleven convenience store located at 1393 Henderson Highway in the City of Winnipeg with a black pistol-style pellet gun concealed in the front of his hooded sweater. At such time he approached the store clerk, pointing the pellet gun at the victim and shouted “Give me the money.

Give me the money.” The victim turned over $62.60 in cash to the accused whereupon the accused fled the store on foot. R.M. was arrested a short time later in possession of the stolen money and the pellet gun. [ 3 ] He then went on to commit a violent armed robbery and aggravated assault while under strict conditions of judicial interim release. This incident, on November 6, 2012, involved R.M. concealing his face with a balaclava and approaching two youths brandishing a knife.

R.M. demanded that one of the victims give him his bicycle and then slashed his neck, causing a deep laceration approximately four inches in length which apparently began to bleed profusely. R.M. then approached the other victim and without provocation struck him in his left knee with the knife, causing a deep laceration and significant injury. Apparently the knife cut tendons

adjacent to the knee joint. R.M. then stole the bicycle and made good his escape. [4] The Crown says the sanctions provided for under the YCJA are inadequate to hold the young person accountable for thesecrimes. The maximum total sentence that can be imposed under the YCJA for each of these crimes is two years secure custody and oneyear community supervision. The Crown is of the opinion that the custodial and supervisory time available under the youth sentencingregime is not sufficient to hold the accused accountable for his actions.

Accordingly, the Crown applied to have the young person receivean adult sentence for these three separate offences. Since R.M. has pled guilty to a number of serious offences including armed robberyand aggravated assault, he would be eligible to a maximum sentence of life imprisonment if sentenced as an adult. The maximum adultsentence for the offence of robbery is life imprisonment and the maximum adult penalty for aggravated assault is 14 years.

Themandatory minimum adult sentence for robbery with a firearm is four years. [5] The parties agree that by virtue of the Safe Streets and Communities Act, S.C. 2012, c. 1, the application of the Crown withrespect to the June charge is to be governed by the YCJA as it was before amendment by Parliament. It is also agreed that the applicationwith respect to the latter charges, that is those related to the November 6, 2013 robbery with a weapon and aggravated assault, aregoverned by the new wording subsequent to the amendment of s. 72 of the YCJA. [6] I agree with Mainella J., as he then was, in R. v.

B.L., 2013 MBQB 89, at paragraph 35 wherein he states that “the newwording of s. 72 of the YCJA is nothing more than a codification of the prior law”. [7] Both sides agree that the Crown bears the onus of proof in these applications and that the onus necessary to order a youngperson liable for an adult sentence is neither proof beyond a reasonable doubt nor proof on the balance of probabilities; that the standardis rather one of satisfaction after careful consideration by the Court of all the relevant factors (see R. v. A.O., 2007 ONCA 144 atparagraphs 34-38, and R. v. D.D.T., 2010 ABCA 365 at paragraph 7).

However, the Crown must prove beyond a reasonable doubtany underlying aggravating factors relied on for the Court’s ultimate determination (see R. v. D.B., 2008 SCC 25 , 2008S.C.C. 25 at paragraph 78). FURTHER PARTICULARS OF INCIDENTS A. Armed Robbery of June 17, 2012 at 7-Eleven Convenience Store [8] Defence counsel emphasized that there were no injuries suffered as a result of this incident and no attempt to hurt or injure thevictim was indicated. She also emphasized that her client had no prior criminal history at the time of this incident and was only 14 yearsand four months old at such time.

R.M. claimed to have been under the influence of prescription drugs at the time of the incident (see thePre-sentence Report at page 13). [9] After his arrest, R.M. was released on an Undertaking to a Justice and was ordered to reside with his grandparents inThompson, Manitoba, and not possess any weapons. B. Armed Robbery and Aggravated Assault of November 6, 2012 [10] R.M. was visiting Winnipeg with his grandmother but rather than go home with her as required by his undertaking, he elected toremain with his girlfriend in Winnipeg.

This incident occurred two days later. [11] As an outcome of this incident, one young victim has been left with a four-inch scar to his throat area as well as a major hearingloss in one ear. Further impacts include a numbness to one side of his face down to the region of his collarbone as well as a fear of goingout in public which expresses itself by way of a more withdrawn and reclusive personality. The youth who suffered the serious leg injuryhas been left with significant scarring, numbness to the affected leg and still has pins in his legs as a consequence of necessaryarthroscopic surgery.

There were also several witnesses to the incident who expressed being emotionally and psychologicallytraumatized as a result of their exposure to the violent incident. [12] R.M. advised police that he had committed these crimes while under the influence of Tylenol 3’s. Police located a bottlecontaining 16 Tylenol 3 tablets when R.M. was searched incident to arrest. [13] R.M. told Dr. Chaze that the November 6, 2012 aggravated assault and armed robbery incidents stemmed from being enragedabout his girlfriend cheating on him.

He also stated that anger and impulsive aggression were the reasons that he committed the previousoffence of armed robbery at the 7-Eleven store. GENERAL BACKGROUND OF THE YOUNG PERSON [14] The young person is now 15 years old. He is an Aboriginal person. His mother raised him until he was five years old, at whichpoint he moved in with his maternal grandparents in Easterville, where he resided until age nine. Apparently his father has never beeninvolved in his life.

He moved to Thompson, Manitoba, with his grandparents when he was about ten years old. [15] R.M.’s mother says that Child and Family Services apprehended R.M. from her when he was five years old because of heraddiction issues. The mother, C.A., says that her son is usually quiet and passive and that these charges are out of character for him. Sheacknowledged that she has caused R.M. and his siblings a lot of “hurt” as she has not been present for much of their young lives.

Sheadmitted drinking throughout R.M.’s pregnancy as well as doing cocaine on occasion. [16] R.M. reported that both of his grandparents were excellent role models, that both were employed and that neither drank nor diddrugs. His grandfather, C.L., reported that he had worked for over 40 years as a carpenter and that his wife works in a housing complexas a manager. [17] R.M. also indicated that his mother’s unavailability as a parent makes him angry and that the absence of his father has upsethim emotionally.

THE APPLICABLE LAW [ 18 ] As noted in R. v. B.(D.) , 2008 SCC 25 , the rationale for why there is a separate legal system and sentencing regime for young people is that young people have a heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. [ 19 ] As noted by Professor Nicholas Bala as quoted in paragraph 62 of the B.(D.) decision, in reference to the YCJA : It is premised on a recognition that to be a youth is to be in a state of “diminished responsibility” in a moral and intellectual sense.

Adolescents and even more so children, lack a full-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.” 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….This is not to argue that adolescent offenders should not be morally or legally accountable for their criminal acts, but only that their accountability should, in general, be more limited than is the case for adults. [ 20 ] Notwithstanding that this presumption exists, it does not mean that an adult sentence cannot be imposed on a young person if the seriousness of the offence and the circumstances of the offender justify it, notwithstanding his or her age (see R. v.

B.(D.) , 2008 SCC 25 , at paragraph 77 ). [ 21 ] As previously mentioned, the onus falls on the Crown to rebut the presumption of diminished moral blameworthiness. The Crown must satisfy the youth court judge that a youth sentence would be of insufficient length to meet the base requirement of accountability that drives the entire YCJA sentencing regime (see R. v. A.O. , [2007] ONCA 144, paragraph 59). As counsel have noted, A.O. is the leading decision relative to accountability, which is the central feature of any decision whether to impose an adult sentence. [ 22 ] In R. v.

A.O. , the Court considered s. 72 in light of s. 3 and s. 38 of the YCJA and found that the combined effect of these sections was to identify accountability as the purpose that the youth court judge must consider when deciding an application to impose an adult sentence on a young person. It said accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society.

At paragraph 47 the Court stated: In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, “the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct”. We see no other rational way for measuring accountability. [ 23 ] As mentioned before, counsel have agreed that the October 23, 2012 amendments to s. 72 of the YCJA is essentially a codification of the law as set out in R. v.

B.(D.) . [ 24 ] From a practical standpoint, notwithstanding that the legislative amendment removed the enumerated criteria set out in the old and revised section, those criteria are certainly still relevant and an important consideration. At the end of the day the Court must still consider all relevant factors in determining whether the available youth sentence or sentences are of sufficient length to hold the young person accountable.

CONSIDERATION OF THE RELEVANT PRINCIPLES The seriousness and circumstances of the offences June 17, 2012 – Robbery with a Firearm [ 25 ] I have already discussed the circumstances of this offence as well as related victim impact information provided by the Crown during submissions. [ 26 ] This case involved the use of a pellet gun in the commission of a single convenience store robbery. There were no overt threats to shoot the direct victim, the store clerk but the pistol was brandished and pointed. No Victim Impact Statement was adduced by the Crown with respect to this incident.

Notwithstanding that, the Court takes judicial notice that all incidents of this sort are presumably emotionally and psychologically traumatic from the standpoint of a given victim. The complainant, being a convenience store clerk on duty in the early morning hours is essentially a member of a vulnerable employee group. [ 27 ] R.M. claimed to have been under the influence of prescription drugs at the time of the robbery.

Police found no such drugs on his person when they arrested him shortly after the incident. [ 28 ] It is an aggravating factor that an actual weapon was employed in the offence and also that the robbery was, as evidenced by the weapon, preplanned and not spontaneous in nature. [ 29 ] R.M. did not really provide any cogent explanation for his commission of this offence.

There was no objective indication from arresting police or the victim that R.M. was actually under the influence of drugs when they were in contact with him. [ 30 ] The principal mitigating factors in this case are the lack of a prior criminal history and the guilty plea entered by the accused. This guilty plea spared the complainant from having to testify and relive the incident again. November 6, 2012 – Robbery with a Weapon and Aggravated Assault [ 31 ] The circumstances of these incidents have also been previously discussed in this decision. Similarly, there was also a

description of the victim impact suffered by the two principal victims and onlooking bystanders.

Suffice it to say that both principal victims were exposed to significant physical and emotional trauma as a consequence of these attacks. [ 32 ] There are several aggravating features associated with these offences: the actual use of a knife, which same was employed both to threaten as well as assault both of the principal victims; the wearing of a disguise; the sheer brutality of the assaults as well as the significant short and long-term impacts on the victims. [ 33 ] R.M.’s explanation for the offence as provided to Dr.

Chaze and also mentioned in the presentence report related to an argument R.M. had had with his girlfriend which, according to him, caused him to become enraged. It was R.M.’s position that because of this angered state of mind he then decided to leave his girlfriend’s residence and confront the nearby youths. [ 34 ] R.M. indicated that he was under the influence of Tylenol 3’s when this incident occurred.

The probability of this was somewhat verified insofar as police did locate a prescription bottle containing 16 Tylenol 3 tablets when they searched him incident to arrest. [ 35 ] There was no evidence before the Court that implicated the Tylenol 3 consumption in actual relation to the perpetrated acts of violence.

As a consequence of same I am essentially left to speculate with respect to the possibility of direct causality in such respect. [ 36 ] A further aggravating factor in relation to these offences was that R.M. was on release relative to the earlier serious offence of armed robbery and in relation thereto was subject to an undertaking prohibiting him from possessing weapons and requiring him to live in the City of Thompson.

The Court also observes that there appears to have been some preplanning associated with this incident insofar as the accused concealed his face with a balaclava and took a kitchen knife with him when he went outside to confront the two victims. [ 37 ] The Court further observes that there was no need for the type of violence employed in order for R.M. to obtain what he wanted, i.e., the bicycle being driven by one of the victims.

Although he could easily have obtained the bicycle without using the knife he nevertheless employed it not only against the owner of the bicycle but also in a completely gratuitous manner in relation to the second victim. In overview, the two acts of violence were needless, excessive and simply egregious. [ 38 ] There is very little in terms of mitigation with respect to these offences. Only that R.M. admitted his involvement to police, pled guilty to the offences and was apparently under the influence of drugs at the time of the incident.

The Court recognizes that the consumption of drugs may have affected R.M.’s ability to premeditate and fully consider his actions and could possibly as well have acted as a disinhibitor of sorts in relation to the events. Age, Maturity, Character, Background, Previous Record and Gladue Factors [ 39 ] The evidence related to the above factors derives from several sources: a Manitoba FASD Centre Multi-disciplinary Report dated September 11, 2013, a Gladue component presentence report dated June 3, 2013 and a Psychiatric Forensic Assessment dated May 22, 2013 prepared by Dr. Brian Chaze and Dr. Keith Hildahl. Dr.

Chaze also testified at the hearing held in this respect. [ 40 ] At the time of the offence, R.M. was seven months past his 14 th birthday. The accused is 15 years old today and was found to generally function in the low average intellectual range with the exception of cognitive processing speed which was in the borderline range. He functions at a Grade 4 level in mathematics-related achievement which was noted as requiring extra help in this area.

He has no effective executive function deficits. [ 41 ] R.M.’s early life, prior to turning five years old, was described by his mother as being chaotic and traumatic for R.M. and her other children. The next three years R.M. was resident with his grandparents in Thompson. There is evidence that he was left to his own devices and not subject to any instructive discipline during such time. For instance, he admitted skipping out of classes regularly as he did not like school. As of last summer he had not been in school for between two and three years. As well, R.M. provided Dr.

Chaze with information indicating long-standing gang activity which included drug trafficking going back to nine or ten years of age. Apparently, such involvement involved family members involved with the Manitoba Warriors gang. R.M. related that he was able to keep between $100.00 and $200.00 per week to buy pellet guns, cannabis, Tylenol 3 and Xanax pills.

He also admitted to smoking cannabis daily since approximately age eight as well as using Tylenol 3 and Xanax on intermittent occasions. [ 42 ] As a final note, the September, 2013 Multi-disciplinary Report, made by the Manitoba FASD Centre, found that his maternal grandmother had become aware of a “stark change in R.M.’s behaviour and attitude”; manifesting itself in situations where he had become very angry and begun to swear, yell and hit things. The grandmother described R.M. as becoming “quite impatient with people” and described his anger as being “explosive”.

She did not identify specific triggers; just that he had become an angry individual during the previous year. R.M. admitted to the preparer of his presentence report that he had poor frustration tolerance and easily angered. He went on to describe sometimes punching walls, throwing objects and becoming verbally aggressive in such circumstances. R.M. felt that he would benefit from exposure to anger management counselling. [ 43 ] The same report also discloses information that in Grade 2 R.M. was referred to Special Education due to non-compliance, physical aggression and lack of attendance.

A behaviour report from that time indicated that R.M. had experience with suspensions, temper tantrums and a lack of coping and problem-solving skills. R.M. was also said to have the capacity to learn but struggled with focusing and being in large groups. The report goes on to inform that R.M. was referred to the Child Guidance Clinic in 2005 where it was determined that he would benefit from a low enrollment setting. In the same school year R.M. was on a behaviour control plan that included such interventions as alternative recess, one-to-one attention and specific or special seating arrangements.

The file reviewed also indicated that R.M.’s school attendance was generally sporadic. At the time of his September, 2013 interview, R.M. related that he had not been in school for the last two to three years. The FASD report concluded that R.M. does not suffer from any severe impairments and his profile is not consistent with a fetal alcohol spectrum disorder diagnosis. [ 44 ] Dr. Chaze testified that R.M. appeared to minimize involvement in his criminal activities but did appear genuinely remorseful when talking about the victim of his aggravated assault. Dr. Chaze even noted some tearfulness in such respect.

Dr. Chaze told the Court that victim empathy often develops as a person matures. However, generally speaking, Dr. Chaze noted R.M.’s lack of insight into the

magnitude of his offences. [ 45 ] Dr. Chaze also related an overall impression that R.M. demonstrated significant immaturity that was more consistent with a typical adolescent than an adult. This was especially so in the areas of future planning and his desire for acceptance by peers. Dr. Chaze felt that this immaturity was more consistent with a typical adolescent rather than with an adult.

He went on to state that R.M. had essentially been socialized into criminal and anti-social environments and as a consequence his criminal acts appear to have related more to “fitting in” than to particular criminal ambitions. He observed that this is, in his opinion, evidenced by R.M.’s ability to fit in quite well at the Manitoba Youth Centre where he has earned certain privileges and been satisfactorily involved in various programming. Dr. Chaze suggested that environmental interventions are likely to be very effective in helping R.M. to create a more pro-social lifestyle.

He also concluded that R.M. appeared to be attached to his family in a manner that was more typical of an adolescent than an adult. In this regard he made specific mention of R.M.’s need to work through some of his difficulties in relation to his mother. For those reasons Dr. Chaze suggested that the Court consider a disposition as a youth rather than as an adult. Dr. Chaze further suggested that multi- systemic interventions would be beneficial in R.M.’s case. He felt that one supervisor administering concrete plans that included parent skills training for his grandparents and gang withdrawal would benefit R.M.

Dr. Chaze agreed with defence counsel that R.M. had been both “poorly socialized”, poorly supervised and that such situation had most certainly contributed to his involvements before the Court. Dr. Chaze suggested that R.M. had essentially missed out on obtaining necessary skills that most adolescents develop by the same age. Dr. Chaze’s final diagnosis was that of conduct disorder. On this basis he was of the opinion that treatment intervention could be completed within a three-year range of sentence.

He recommended a sentencing conference prior to the imposition of sentence in order to allow all supervisory and therapeutic input persons to exchange information and prepare an appropriate treatment intervention strategy. It was implicit in Dr.

Chaze’s conduct disorder diagnosis that two years in custody would be sufficient in terms of more defined consequences for misbehavior, i.e., that a controlled and secured environment would therefore not be necessary for more than two years to address manifestations of R.M.’s conduct disorder. [ 46 ] R.M. was also seen for a psychological assessment in September of 2013 by Dr. Garry Fisher at the Manitoba Adolescent Treatment Centre. His overall intellectual function was found to be in the low average range with respect to verbal comprehension, perceptual reasoning and working memory.

Cognitive processing speed was lower, in the borderline range. Dr. Chaze was aware of this assessment’s findings. [ 47 ] It is clear to the Court that the absence of an FASD diagnosis in R.M.’s case portends a much better therapeutic result in relation to his conduct disorder diagnosis. This is because an FASD diagnosis would have reflected R.M.’s inability to regulate his emotional state and deal with his apparent quickness to anger and other anger management issues.

It also would have presented significant issues with respect to any strategic long-term therapeutic supervisory plan because of the likelihood of R.M.’s inability to effectively judge cause and effect and consequences as well as present R.M. with difficulties in relation to planning and completing tasks. [ 48 ] The Court observes that although R.M. has been habitually involved in cannabis consumption there does not appear to be any indication that he is involved in any other substantive drug or alcohol usage.

In other words, while he has experimented with a number of substances, he does not appear to have a severe or serious substance abuse issue. In the Court’s view this will most probably make him much more amenable to both institutional and community supervision after release from custody. [ 49 ] The information before the Court admittedly bespeaks a serious anger management problem. His offences are related to extreme violence and the threat of violence. These, in my view, cannot be explained in any other way As previously mentioned, outbursts were observed as early as R.M.’s initial primary school enrollment.

There can be little doubt that R.M. uses violence as a means of expressing his anger. [ 50 ] However, R.M. does not appear, notwithstanding his seeming sometime inability to regulate his emotions, to be completely without appropriate impulse controls. And fortunately his violence does not seem to be affected by cognitive difficulties or the general nature of his upbringing. There is nothing in the information or evidence before this Court to indicate a significant mood disorder, a significant anxiety disorder or a psychotic disorder.

As a result, it is the Court’s view that learning the skills necessary to address his anger issues are likely to be more attainable. It is noteworthy that Dr. Chaze did endorse that R.M. appeared “genuinely remorseful when talking about his assault victim” and further noted some tearfulness on R.M.’s part.

The Court finds it encouraging that R.M.’s manifestations of anger have seldom presented within the structured setting of the Manitoba Youth Centre. [ 51 ] Although the offender was indicated to present as a high risk to reoffend by the preparers of the presentence report, it must be noted that R.M. has not ever even had the benefit of a community disposition since he has had no prior criminal record. The Court assumes that this was the reason that he was deemed a suitable candidate for community supervision as opposed to custody by the preparers of the presentence report.

The Court wishes to emphasize that R.M.’s prognosis is therefore unlike the more common adult transfer application situation wherein the Crown commonly proffers probation officer evidence which provides a poor prognosis for supervisory compliance leading to appropriate rehabilitation; in other words, a presentence prediction that the young offender will, if released too early, reoffend. [ 52 ] Staff at the Manitoba Youth Centre have apparently found R.M. to be “very quiet and soft-spoken for the most part”, although he is also noted as being “not one to share feelings unless specifically asked”.

That having been said, it was further stated that he completed a personal biography where he shared some personal stories with other inmates and staff. His teacher at the Manitoba Youth Centre related that it “was well done”. R.M. has also participated in large group lessons and satisfactorily completed the work that was assigned. R.M. has told the Manitoba Youth Centre teaching staff that he would like to go to college and study Culinary Arts. R.M. is trying to earn a high school credit for a Grade Nine Home Economics course in this regard.

He also indicated that he would like to increase his knowledge of Aboriginal culture. His teacher was of the view that R.M. would benefit from a mentor to help to teach him to make better decisions. R.M. is participating in smudges and spiritual teachings at the Manitoba Youth Centre. It is reported that he has also taken to reading the Bible. [ 53 ] R.M. provided the presentence preparer with the names of his closest friends and advised that their normal activities involved hanging out, playing video games and going swimming. He admitted that all of his friends drink and do some drugs.

However, none of the friends listed had criminal records. R.M. reported that he also enjoys playing sports and hunting and fishing by way of recreational

pursuits. [54] R.M. admits to having poor frustration tolerance, saying he is easily angered and will sometimes punch walls, throw objects orbe verbally aggressive with others. His grandmother, as previously mentioned, confirmed that this aspect of his behaviour causes herconcern. [55] The probation officers who prepared the presentence report determined that R.M. was a suitable candidate for communitysupervision.

They recommended that he receive a community sentence involving a curfew, an abstention condition, a requirement that heattend school regularly, that he obtain an addictions assessment and follow-up counselling and/or treatment, that he participate in theISSP program, that he participate and complete an anger management counselling program and, finally, be instructed to performcommunity service work by way of reparation to the community. [56] Dr. Chaze testified that R.M.’s rehabilitation was less dependent on time spent in custody than it was on the nature of orderedinterventions.

He was of the opinion that R.M.’s chances of rehabilitation would be poor if he was sent back to the same environmentand living arrangements as pertained at the time of his criminal involvement. Dr. Chaze was of the view that the grandparents’ residenceappeared to lack necessary supervisory elements. Dr. Chaze also testified that the consumption of Tylenol 3’s generally caused euphoriaas the drug is essentially a relaxant and does not usually cause the manifestation of frenzied or deranged, angry behaviour.

It is theCrown’s position that this information confirms that R.M. is more hardened in his criminal orientation and that both incidents werepremeditated and unrelated to the use of Tylenol 3’s. ANALYSIS [57] Returning to the test under s. 72 of the YCJA, I have now considered the seriousness and circumstances of the offences, the age,maturity, character and background of R.M., as well as his previous record and relevant Gladue factors. As well, I have read andconsidered the declaration of principle in the YCJA.

I am, of course, mandated to consider fair and proportionate accountability that isconsistent with the greater dependency of young persons and their reduced level of maturity. The YCJA requires recognition that youngpeople are subject to greater dependency and I have addressed the issue of the maturity level of R.M. as the Act acknowledges thatgenerally young persons will have a reduced level of maturity. I am aware of the purposes and principles of sentencing set out in s. 38 ofthe YCJA.

And I am aware that the determination pursuant to s. 72 involves whether a youth sentence imposed in accordance with theprinciples and purposes of fair and proportionate accountability be consistent with the greater dependency of young persons and theirreduced levels of maturity and the purposes and principles of sentencing in s. 38.

I know that I must ask myself whether these principlesand purposes have sufficient length to hold R.M. accountable for his offending behaviours. [58] It also goes without saying that a youth sentence must hold the young person accountable through fair sanctions that aremeaningful to the young person and that will promote his or her rehabilitation and reintegration into society. I am aware that in order topromote the long-term protection of the public, the courts must use an individualized approach focusing on causes, rehabilitation,reintegration and meaningful consequences for the particular young person.

The hope is that the young offender in these circumstanceswill, upon release, have been afforded an opportunity to be rehabilitated and return to the community in such a state that he is no longerthe danger he was at the time of his offending behaviour. [59] It also goes without saying that the Court cannot impose a greater punishment than would be appropriate for an adult convictedof the same offences committed in similar circumstances and that a sentence must be similar to other sentences imposed in the region onsimilar young persons found guilty of the same offences.

In relation to his offences before the Court, considering totality, R.M.’sappropriate range of sentence if sentenced as an adult could easily be near to or even within the low double-digit range. [60] The sentence I impose must also be proportionate to the seriousness of the offence and the degree of responsibility of the youngperson. In terms of the degree of responsibility of R.M., this Court finds that in both instances he set out to rob individuals and possessedweapons for that purpose.

I accept that his consumption of intoxicants, as alleged by R.M., could have acted as a possible disinhibitor forhis actions. However, R.M. was the key, indeed the only, participant involved in all the offences before the Court and peer pressure doesnot appear to have played a role. R.M.’s degree of responsibility is therefore significant.

As such, both counsel agree that there is nosanction other than custody that is appropriate in the circumstances. [61] I am also mindful that the sentence must also be the least restrictive sentence that is capable of achieving the purposes that arereferred to and set out in s. 38 and must be the one most likely to rehabilitate R.M. and reintegrate him into society and promote a senseof responsibility and an acknowledgement of harm done. [62] The jurisprudence as comprehensively itemized in R. v.

D.D.T., 2009 ABQB 362, indicates that a more restrictive sentence isappropriate in circumstances where the offence or offences demonstrate the following factors or criteria: 1) The manifestation of unnecessary violence: R. v. C.W.W., 2006 ABPC 191 at paras. 20, 44 and 403; R. v. M.D., 2008 ONCJ 310 atparas. 47 and 77; R. v. Lights, 2007 ONCJ 173 at paras. 49 and 75; R. v. Smith, 2009 NSCA 8 at paras. 40 and 41; 2) Where they involved a violent offence committed to fulfill a desire to engage in violent behaviour: R. v. Smith, 2009, NSCA 8paras. 40 and 41; 3) Where the offence is associated with weapons: R. v.

C.W.W., 2006 ABPC 191 at paras. 20 and 44; R. v. M.D., 2008 ONCJ 310 atpara. 47; R. v. B.C.F., 2008 SKPC 98 at paras. 29 and 79; R. v. J.S.R., (ON SC), 2009 O.J. No. 1662 (Ont. S.C.J.) atparas. 63 and 64; 4) Where the offence is conducted without regard for the consequences of the offence: R. v. P.(D.D.), 2007 BCCA 206 at paras. 64and 239; R. v. M.D., 2008 ONCJ 310 at para. 47; 5) Where the offence is part of a series of offences which have escalating violence and severity: R. v. M.D., 2008 ONCJ 310 at paras.19 and 47; R. v. C.R.B., 2009 SKQB 176 at para. 36;

6) Where the offence was planned by the youth and involved an intent to harm: R. v. B.C.F. , 2008 SKPC 98 at para. 30 ; R. v. S.R.B. , 2009 ABCA 45 at paras. 12-16 . [ 63 ] A breach of pre-trial release order conditions has also been found to be an aggravating consideration (see R. v. B.K.T.S. , 2009 MBQB 56 at para. 46 ). [ 64 ] In contrast, the relative responsibility of a youth has been found to be reduced where the youth has committed an impulsive act or one that is regarded as being out of character or the product of unusual circumstances ( R. v. T.W.T. , 2008 ABCA 306 at para. 8 ; R. v.

A.J.D. , 2009 NSSC 56 at para. 51 ). [ 65 ] The absence of any criminal history has been found to be a mitigating consideration ( R. v. A.J.D. , 2009 NSSC 56 at para. 53 ). [ 66 ] As I have discussed previously, “appropriate and proportional” sanctions, to employ the phrase used by Justice Germain in D.D.T. , must be considered in the context of the reduced maturity of young persons.

Indicia of lower maturity have been found to be indicated by such factors as chronological youth per se, mental immaturity, a history of being disadvantaged, poor education, Aboriginal background and the relative absence of adult guidance ( R. v. C.K. , 2006 ONCJ 283 at paras. 47 and 48 ; R. v. P(D.D.) , 2007 BCCA 206 at para. 65 ; R. v. T.W.T. , 2008 ABCA 306 at para. 8 ; R. v.

P.(D.D.) , at para. 79-83 ) [ 67 ] The authorities that I have just outlined with respect to factors conducive to the imposition of a more or less restrictive sentence are not exhaustive but do represent a sort of synopsis of jurisprudential thought which Justice Germain in D.D.T. aptly described as the “threads that courts cling to in conducting the unenviable balancing that this type of case requires”. Obviously, in most cases (as in R.M.’s case) some factors will favour an adult sentence while others will favour a sentence served in the youth system.

Would R.M. be held accountable by a youth sentence? [ 68 ] I have no difficulty concluding that I can hold R.M. accountable for the first of his two offences with a sentence that fits within that allowed under the YCJA . It was his first criminal involvement. His chronological age, being only 14 years and seven months, virtually bespeaks mental immaturity. He had been significantly misguided by older and adult family members for several years prior to the incident. Dr.

Chaze’s Forensic Report makes clear that by virtue of R.M.’s personal profile and history there can be little question that he was at the time of the first offence almost by definition himself a very vulnerable and immature person. In that sense, in applying the Supreme Court case of R. v. B.(D.) , previously cited, the Crown has not met the requirement to displace the onus placed upon it with respect to the presumption of diminished moral blameworthiness.

There is no question in my mind that R.M. had a reduced capacity for moral judgment at the time of his first offence. [ 69 ] I am of a different view with respect to the second offences, those occurring in November of 2012. These offences were extremely serious by virtue of their circumstances. The seriousness and circumstances of those offences certainly suggest that any sentence imposed must be reflective of R.M.’s degree of responsibility therein.

These offences involved gratuitous violence, a seeming desire to engage in very violent behaviour, were weapon-associated, and were conducted without any apparent regard for the consequences of the offences. The victim whose throat was slashed could have been killed as a result of the attack. As well, the Court notes that the offence appears to have, as I have discussed previously, several elements of planning and were perpetrated after the youth’s release on an undertaking in reference to the first incident, that of June of 2012.

The second incident appears to also suggest an escalating pattern of violence and severity. That having been said, Parliament has not removed the option of the youth sentencing regime, for offenders and offences of this description. Therefore, a young person who has committed such heinous crimes can still be sentenced as a young offender if the sentence holds them accountable . [ 70 ] I am of the view that R.M.’s anger management issues are becoming exceptional and pronounced within the community, thereby creating a situation of grave public endangerment.

The second incident offences bespeak something approximating a pathological predisposition towards violence. While it appears from all of the material before the Court that R.M. benefits from a structured, closely-monitored and supervised custody situation, it also seems the case that R.M. has only a very rudimentary understanding regarding his anger issues. And the Court must take into account the harm done to the victims and whether it was intentional or reasonably foreseeable.

Given that R.M. had a dangerous weapon, a knife, and wore a disguise to conceal his identity, it becomes clear that these offences were perpetrated more to hurt people as opposed to simply stealing a bike.

The harm done was therefore both intentional and reasonably foreseeable. [ 71 ] It is my view that I must now address whether a sentence is available within the youth regime to reflect the seriousness of these second offences and the offender’s role in them, and whether such sentence would be long enough to provide reasonable assurance of the vendor’s rehabilitation to the point where he can be safely reintegrated into society.

Rhetorically I ask myself whether the Crown has proven that such youth sentencing would not be long enough to achieve these goals; in other words, that an adult sentence must therefore be imposed. Meaningful and realistic rehabilitative treatment [ 72 ] The jurisprudence suggests that it is not necessary that a youth sentence ensure rehabilitation and reintegration in these circumstances, just that the sentence be adequate in terms of its promotion of rehabilitation and reintegration; in other words, that it could realistically result in R.M. becoming rehabilitated and reintegrated within society. See R. v.

A.O. , previously cited, at paragraphs 58 and 61 in such regard. Germain J. in R. v. D.D.T. performed significant research with respect to what the courts have concluded that rehabilitation and reintegration require and when they have determined that such objectives will require a sentence of a longer duration. These are as follows: 1) Where a youth has demonstrated an unwillingness to change: R. v. A.O. at para. 62 ; 2) Where a youth has an historical proclivity towards drug and/or alcohol abuse: R. v. Smith , 2009 NSCA 8 at paras. 42-43 ; R. v. C.W.W. at paras. 33 and 44 ;

3) Where a youth has a history of unsuccessful treatment and counselling: R. v. Smith , 2009 NSCA 8 at paras. 42-43 ; R. v. M.B.W. at paras, 83, 124-125; R. v. Williams at para. 8; 4) Where a youth distrusts people and finds them threatening: R. v. Smith , 2009 NSCA 8 at paras. 42-43 . [ 73 ] Germain J. observed that a court “may infer better prospects for rehabilitation and reintegration from the absence of a criminal record: see R. v. C.K. at para. 48 ; R. v.

A.J.D. at para. 53 ”. [ 74 ] Germain J. also discussed the fact that courts have placed an emphasis on the conclusions of experts; persons whose opinions were provided in psychiatric assessments, presentence reports and other expert testimony. After providing exhaustive research on the subject, Germain J. deductively argues and concludes that adult sentences are more likely appropriate where the evidence indicates the following exceptional risk factors: 1) Where the youth has a high risk to reoffend violently: R. v. Smith , 2009 NSCA 8 at paras. 42-43 ; R. v. M.M.K. , 2005 ABPC 254 at para. 11 ; R. v.

M.B.W. at para. 127; R. v. B.C.F. at para. 30 ; 2) Where reassessing rehabilitation and reintegration potential is unlikely or even impossible: R. v. Smith , 2009 NSCA 8 at paras. 42- 43 ; R. v. D.E. at paras. 37, 46-47; R. v. M.B.W. at paras. 129, 137; R. v. M.M.K. at para. 11 ; 3) Where rehabilitation and reintegration is possible but will take longer than a youth sentence would provide: R. v. Smith , 2009 NSCA 8 at paras. 42-43 ; R. v. A.)O.) at paras. 64, 66; R. v. C.W.W. at para. 44 ; R. v. B.E. at paras. 37, 46-47; R. v.

M.B.W. at para. 137; 4) Where the adult criminal justice system has more appropriate therapeutic facilities and staff: R. v. M.M.K. at para. 11 ; 5) Where rehabilitation will require direct supervision only available in an adult duration sentence: R. v. Logan , 2009 ONCA 402 at para. 20 ; R. v. S.I.B. at paras. 54-55; 6) Where long-term or life-long monitoring is required for public safety: R. v. M.M.K. at paras. 11-12 ; R. v. Logan at para. 20 ; R. v. B.C.F. at paras. 29-30 ; 7) Where the youth has a very high chance of reoffending because of serious substance abuse issues: R. v.

C.R.B. at para. 36 . [ 75 ] Germain J. further cites jurisprudence that suggests that a youth sentence is more appropriate where testimony or evidence before the court indicates any threat to the public from the youth is reduced where the young person is not placed in an adult criminal institutional context (see R. v. A.J.D. at para. 57 ), or would benefit more from a youth rehabilitation program (see R. v. P.K. , 2005 ABPC 190 at para. 35 ). [ 76 ] Germain J. also found that the courts have generally preferred adult sentences when young persons have denied fault or blameworthiness for their offences.

Germain J. elaborated in this regard, by providing specific examples: 1) Where a lack of remorse was noted to be the case: R. v. D.E. , 2008 ABPC 231 at paras. 23-24 ; 2) Where a lack of empathy was found: R. v.

M.B.W. , 2007 ABPC 292 , affirmed 2008 ABCA 317 . [ 77 ] Germain J.’s research also elaborates that courts have generally concluded that meaningful and realistic rehabilitation and reintegration is more likely in circumstances where a young offender has recognized the wrongness of their actions, i.e., where an offender has shown sincere remorse, has pled guilty to the offence, has rejected their former lifestyle, have accepted that incarceration is appropriate and have reconciled themselves to a full acknowledgement of their fault. [ 78 ] Germain J. also reinforces the significance that positive changes in offender conduct and outlook have had in the evaluation of the possibility of realistic and meaningful rehabilitation potential.

This is described as being a “concrete history from which future developments may be projected”. It goes almost without saying that the opposite scenario is also, as Germain J. describes it, “a powerful warning that rehabilitation and reintegration is unlikely”.

These latter negative scenarios are solely for convenience sake, roughly categorized as follows: 1) Where there is resistance to or refusal to participate in the rehabilitation process or obvious superficial engagement therein; 2) Where there have been attempts to escape or assaults perpetrated on detention facility personnel; 3) Where the offender has disobeyed facility rules and involved in substance abuse or weapons possession or other out-of-bounds behaviour whilst in pre-sentence detention; 4) Where the offender has purposively continued in criminal associations with gangs while in detention.

For instance, where young offenders have actively recruited other inmates to affiliate with their gangs or participate in their criminal activities. [ 79 ] Meaningful outside community supports were also mentioned in Germain J.’s research as improving the possibility of rehabilitation and reintegration. Germain J. cites R. v. A.O. at paragraph 66 in this regard CONCLUSION [ 80 ] There can be little doubt that R.M. has a history and personal profile that suggests some difficulty in his achieving rehabilitation and reintegration.

However, the opinions of the experts are essentially all positive in relation to this prospect and his potential for returning to the community as a law-abiding citizen. There is nothing in the reports or the testimony received by this Court that suggests that a youth sentence will be inadequate from a rehabilitative or reintegration viewpoint.

[ 81 ] Although R.M.’s crimes are very serious, there is nothing before me that suggests R.M. is resistant to change or that the youth system is unable to hold him meaningfully accountable for his actions. There is also nothing to suggest that he is a lost cause, a youth without hope of redemption.

Quite to the contrary, the information imparted to me suggests that he can be treated and that he will likely benefit from correctional rehabilitative treatment; that his behaviour can be modified and his conduct disorder rectified. [ 82 ] In conclusion, it is my opinion that R.M. can likely be rehabilitated and reintegrated in society because he has already begun over the last year or so to move towards that objective. From my standpoint this is particularly significant because R.M. has never before had the benefit of a custodial and supervised detention.

Accordingly, I find that R.M. can be and will be treated as a young person for the purpose of his sentencing respecting the matters of this inquiry. Original signed by Judge B. M. Corrin P.J.