Her Majesty the Queen - v. -, 2018 SKPC 027

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 027 Date: April 6, 2018 Information: 44667711 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jacqueline Danielle Henderson Appearing: Jennifer Claxton-Viczko For the Crown Brian R. Pfefferle For the Accused JUDGMENT S.S. ANAND , J I. INTRODUCTION [ 1 ] On July 3, 2016, sixteen-year-old Jacqueline Henderson (Jacqueline) beat 46-day-old Nikosis Cantre (Nikosis) to death in the home that he shared with many of his family members.

Relatives of the victim met Jacqueline the day before this tragic event and were told that she had no place to stay. Concerned about her welfare, these relatives offered to let Jacqueline stay at their house until she could make other arrangements. Jacqueline responded to their act of kindness by behavior that can only be described as brutal and defying explanation.

[2] Jacqueline was charged with second degree murder in relation to Nikosis’ death. The Crown promptly applied, under section64(1) of the Youth Criminal Justice Act [YCJA], to have her sentenced as an adult. A few months after the offence, Jacqueline elected tobe tried by this court and she pled guilty to the charge. If the Crown is successful in its

section 64 application, Jacqueline will be given alife sentence with no eligibility for parole for seven years pursuant to

section 745.1(

c) of the Criminal Code. If the Crown isunsuccessful in its application, the maximum youth sentence that can be imposed upon Jacqueline is, as set out in section 42(2)(q)(ii) ofthe YCJA, for a period of seven years, comprised of up to four years in custody with the remaining years under conditional supervision inthe community. [3] The ensuing sentencing hearing took place over a number of days. During the hearing, I heard evidence about the offence,including a confession that Jacqueline gave to the police eight days after the murder, and an agreed statement of facts.

A number ofreports and assessments about Jacqueline provided insight into her background, rehabilitative potential, and the risk she posed to thepublic. Witnesses testified to, among other things, the type of correctional and therapeutic programming and resources available inSaskatchewan for female offenders serving youth sentences and those serving adult federal sentences.

A month after the hearing, I alsoreceived written submissions from counsel. [4] Approximately six weeks from the date of receipt of counsel’s written submissions, I gave an oral judgment and ruled that theCrown had met its onus to have Jacqueline sentenced as an adult. In my oral judgment I gave a fairly detailed rationale for the decision,but I also indicated that I would issue a written judgment containing more comprehensive reasons. [5] I chose to proceed in this fashion for several reasons.

First, I was cognizant that Jacqueline, Nikosis’ family, and indeed the entirecommunity had been waiting a relatively lengthy period of time for a decision pertaining to this matter. In particular, from the content ofthe Victim Impact Statements filed by the family members of Nikosis, I gleaned that the lack of closure represented by the ongoingjudicial proceedings was having a negative psychological impact on them. Secondly, I was also aware that Jacqueline’s

section 11(b)Charter right to be tried within a reasonable time includes her right to be sentenced within a reasonable time (see R v MacDougall, (SCC), [1998] 3 SCR 45), that some courts have ruled that the presumptive time limit ceilings for

section 11(

b) are lower inyouth cases than adult ones (see R v J.M., 2017 ONCJ 4), and that there is currently some uncertainty pertaining to whether the time ajudge takes to render a decision constitutes delay within the meaning of

section 11(b) (see, for example, R v Mamouni, 2017 ABCA 347).Thirdly, under the YCJA, young persons have enhanced statutory rights to be sentenced in a relatively timely fashion as evidenced bysection 3(1)(b)(iv) and section 3(1)(b)(

v) of the Act, which state: 3.

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

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (iv) timely intervention that reinforces the link between the offending behavior and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time[.] In my view, the preceding collection of reasons served to justify the decision to give an oral decision as soon as my deliberation processwas completed but before full written reasons could be made available to the parties.

Indeed, such an approach seems to be endorsed,with some qualifications, by the Supreme Court of Canada (see R v Teskey, 2007 SCC 25 at 277, [2007] 2 SCR 267). [6] A written judgment is ultimately required in this case primarily because the Crown advanced a novel approach to interpreting thekey legislative provision governing whether a youth justice court shall impose an adult sentence on a young person. The legislativeprovision in question is

section 72 of the YCJA, which provides: 72(1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that (

a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

(

b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)( b )(ii) and

section 38 would not be of sufficient length to hold the young person accountable for his or her offending behavior. . . .

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General. Crown counsel argued that the presumption of diminished moral blameworthiness or culpability of a young person can be rebutted by demonstrating that the young person’s diminished moral blameworthiness or culpability is not related to age but is, instead, largely attributable to other factors, such as cognitive impairments like Fetal Alcohol Spectrum Disorder (FASD).

I agree with the prosecution’s position and think that written reasons are required to fully flesh out and explain the legal test that must be applied when the Crown chooses to attempt to rebut the presumption in this manner. Those written reasons are provided in the paragraphs that follow, and they deal with the presumption of diminished moral blameworthiness and culpability prong of

section 72 of the YCJA . [ 7 ] However, my analysis of this element of

section 72 is shaped, in part, by my consideration of some of the other aspects of the statutory

interpretation of the provision. Consequently, prudence dictates that I address the following questions in this order in the judgment:

(1) Under section 72(2) of the YCJA , what is the precise onus of proof required to be met before the court can order that an adult sentence be imposed?

(2) Does section 72(1) of the YCJA require the court to engage in a blended analysis of moral blameworthiness and accountability in making the assessment as to whether an adult sentence is warranted or does the provision envision a two- pronged test involving separate inquiries, both of which have to be satisfied, before an adult sentence can be meted out?

(3) Has the Crown rebutted the presumption of diminished moral blameworthiness and culpability in this case?

(4) Has the Crown satisfied the court that a youth sentence would not be of sufficient length to hold Jacqueline accountable? Although the first two issues noted above can be addressed without engaging the details surrounding this case, the last two issues can only be determined through a thorough analysis involving these circumstances. Consequently, before embarking upon an analysis of any of the issues, I will outline the pertinent facts of the case. II.

PERTINENT FACTS OF THE CASE [ 8 ] The relevant facts concerning the offence are not in dispute. [ 9 ] On July 2, 2016 at 12:45 a.m., Jacqueline escaped from Kilburn Hall, an open custody youth facility located in Saskatoon, Saskatchewan. At approximately 6:00 a.m., Jacqueline met Melissa Bird (Melissa) in the 200 block of Avenue N South. Prior to this meeting, Melissa had never met Jacqueline. Jacqueline advised Melissa that she had run away from a group home in Prince Albert and she asked for help.

Melissa and others provided her with food and clothing and intended to take her to EGADZ, a youth resource center located in downtown Saskatoon. However, EGADZ was not open so Melissa took Jacqueline to Melissa’s home. [ 10 ] Later that day, Melissa took Jacqueline to a house that was located at 246 Waterloo Crescent and that was occupied by Larissa

Bird (Larissa) and her partner, Sheldon Horse (Sheldon). They agreed to let Jacqueline stay at their house until she could arrange for other help. At that time, several family members lived at 246 Waterloo Crescent including the victim, Nikosis, and his mother, Alyssa Bird (Alyssa). Prior to that day, none of the residents of the home had ever met Jacqueline. [ 11 ] Sometime after midnight on July 3, 2016, a group of cousins left the house to pick up alcohol and, upon their return, Jacqueline, who had stayed behind, consumed alcohol with them.

A group of cousins, including Alyssa, left the house a second time to purchase snacks at a convenience store. Again, Jacqueline remained at the house, as did a number of other individuals, including Larissa and Sheldon who were both in bed sleeping. [ 12 ] Prior to Alyssa’s return to the house, which occurred sometime after 6:00 a.m., Jacqueline heard a baby crying and entered the bedroom where Nikosis and one of his cousins were sleeping. Jacqueline removed Nikosis from his playpen and, after briefly holding him and gently rocking him, she began to strangle Nikosis.

Before the attack commenced, Jacqueline indicated that she picked Nikosis up “like a normal baby” and that she was “carrying it, and rocking it, like real nice.” After strangling Nikosis, Jacqueline located a nail and pushed it into his cheek. Subsequently, she punched Nikosis repeatedly in the head. Finally, she put him on the floor and stomped on his head and body. Nikosis suffered multiple injuries to his head and body as a result of the beating. Jacqueline returned Nikosis to his playpen and attempted to hide the baby blanket that was covered in blood.

She then left the bedroom. [ 13 ] When Alyssa entered the house, she went to check on Nikosis and, upon doing so, she observed Jacqueline leaving Nikosis’ bedroom. Jacqueline realized that she had been seen coming out of the bedroom and she hid by a couch. Alyssa entered the bedroom and found Nikosis in the playpen with no clothes on, blood coming from his mouth, scratches on his body, and bruising on his forehead.

Alyssa alerted the other family members as to what had occurred, a 911 call was made, police arrived to arrest Jacqueline, and Nikosis was transported by ambulance to hospital. [ 14 ] Nikosis was pronounced dead at 7:24 a.m. His death was attributable to the blunt force trauma to the head caused by the beating delivered to him by Jacqueline. At the time of the incident, Jacqueline meant to cause Nikosis bodily harm that she knew was likely to cause his death and she was reckless as to whether his death resulted. [ 15 ] The consequences of this offence extend beyond the young life that was extinguished.

The victim impact statements from Nikosis’ family members express the damage done to them. In the wake of Nikosis’ death, various relatives have expressed the ongoing grief that they feel, the profound sense of loss, and the symptoms of Post-Traumatic Stress Disorder with which they are coping, including difficulties with sleeping, depression, and irritability. Many family members describe ongoing thoughts of suicide, and difficulty concentrating, which has led to issues in their pursuit of employment and education.

Every individual who authored a victim impact statement has experienced relationship issues with partners and/or other individuals within the family as a result of this offence. Some of these individuals have even sought solace by abusing drugs and alcohol. [ 16 ] Evidence about Jacqueline’s state of mind, both at the time of the offence and thereafter, was also tendered at the sentencing hearing. Eight days after the incident, Jacqueline gave a video recorded confession to the police.

When the police officer asked why she killed Nikosis, she stated, “’Cause I let all my anger out on that baby.” When he asked her why she was so angry, she responded, “’Cause I was sick and tired of life.

Having to grow up with other people taking care of me, same people that I didn’t know.” Finally, when the police officer asked her if there was anything she would like to say to the family of Nikosis, Jacqueline said, “I don’t know what I was thinking and I’m sorry.” Yet the Update to the Pre-sentence Report notes that Jacqueline’s progress report from September 13, 2017, indicates she occasionally appears to feel remorseful regarding transgressions against others, and she presents some slightly increased awareness about how her actions can impact others negatively.

However, overall, Jacqueline has demonstrated extreme minimization of her offence, as on multiple occasions she has uttered the phrase, “it was just a baby.” During relapse prevention sessions Jacqueline seems to display a great deal more pity for herself that she does for her victims and their families. In one of the psychiatric court reports entered into evidence at the sentencing hearing, Jacqueline suggested that she attacked Nikosis out of anger and frustration because the baby, who she estimated was about nine months old, was crying continuously.

Nevertheless, in one of the psychological court reports, Jacqueline reported seeing her brother’s face on the infant during the assault and being motivated

during the attack by her anger towards her sibling. It is reported that Jacqueline said, “I’m scared to have kids because of what I did to the baby. I won’t do it again though, but I’m afraid it may happen again.” [ 17 ] The facts pertaining to Jacqueline’s background are also not in dispute. [ 18 ] Jacqueline’s criminal record, albeit not lengthy, exemplifies a disturbing pattern of behavior.

In 2015 she was given a global disposition consisting of a fifteen month open custody and supervision order for assault causing bodily harm, assault with a weapon, break enter & commit arson, and arson causing damage to property. During the commission of the assault causing bodily harm, Jacqueline had been planning to run away from her group home, the Eagle’s Nest Youth Ranch (ENYR) in North Battleford. While in a vehicle with a staff member of the home, Jacqueline decided she wanted the vehicle.

The following further account of the offence is taken from the court-ordered Intensive Rehabilitative Custody and Supervision Order (IRCS) Assessment, which in turn quoted from the 2015 Pre-Sentence Report (PSR) ordered in relation to these four offences: [Jacqueline] grabbed the worker’s hair and advised she was also biting and scratching her . . . She pulled the staff’s head back by her hair.

Jacqueline then advised she then “tried to snap her neck.” This writer expressed concern and indicated that she could have killed the staff and Jacqueline stated, “I know.” Jacqueline advised she kept trying to twist the staff’s neck . . . Jacqueline indicated she realized how bad she had hurt people but she wanted to run away from ENYR and further stated she was going to go to Saskatoon and hide.

When asked about what she was feeling during the incident Jacqueline stated, “I have no feelings.” The assault with a weapon offence involved Jacqueline spraying insect repellant at a youth who was also residing at ENYR. However, the arson offence involved Jacqueline setting fire to a different group home. The fire resulted in the home becoming inhabitable. In February 2016, Jacqueline was sentenced to a 90 day secure custody and supervision order (concurrent to the sentence she was currently serving) for escaping lawful custody.

In relation to her escape from Kilburn Hall, immediately after which she committed the murder, Jacqueline was sentenced to a 120 day secure custody and supervision order. Since the murder, Jacqueline has committed one further offence. On May 25, 2017, while on remand pertaining to the murder, Jacqueline approached staff at the Paul Dojack Youth Centre claiming to have taken pills. When the staff investigated and found that it was unlikely that she had done so, Jacqueline was directed to go back to her cell. She responded by doing so in what seemed to be a calm and compliant manner.

However, as she passed by a staff member, Jacqueline suddenly turned and punched the staff member on the left side of her chest. Jacqueline was sentenced to a 30 day secure custody and supervision order for her involvement in this incident. [ 19 ] Much of Jacqueline’s early personal and family history can be gleaned from the Gladue reports filed with the court during the sentencing hearing as well as the various reports and assessments tendered by the Crown. From these sources, it is clear that many of Jacqueline’s family members were residential school survivors.

Jacqueline’s biological mother used alcohol during her pregnancy and immediately rejected her when she was born. Jacqueline’s aunt adopted her by cultural adoption at the age of three months. Her aunt and her aunt’s husband, who took primary responsibility for raising her for many years, had substance abuse issues as did many other members of Jacqueline’s family. Sexual abuse allegations involving various family members have been made in the past and there are indications that Jacqueline suffered some of this abuse.

Jacqueline was placed in a foster home for the first time in 2010 due to allegations of substance abuse and neglect on the part of her aunt and uncle, but she was soon returned to the family home on the Montreal Lake Cree Nation. According to Jacqueline, the conditions in her family’s homes were poor in terms of cleanliness and there were bed bug and cockroach infestations. In the latter part of 2010, Jacqueline was removed to the Prince Albert Grand Council Child Care and Education Centre because she engaged in violence towards animals, such as mutilating dogs and a cat.

Subsequently, Jacqueline lived at various group homes. In October 2012, Jacqueline returned to live with her cousin and her uncle. By the fall of 2014, she was removed from the home by child welfare authorities after an incident in which she had given morphine pills to her cousin’s eight-year-old daughter, resulting in the child almost dying. Jacqueline then began living in a number of group homes until she began to run afoul of the law and was given her first custodial sentence. [ 20 ] A number of individuals in Jacqueline’s family have passed on, leaving her with little family support.

Her cousin, Cassandra, was killed in a car crash when Jacqueline was approximately eight years old. Jacqueline had been very close to Cassandra, and it was reported that Cassandra’s death coincided with a significant deterioration in Jacqueline’s behavior. In 2012 her adoptive mother died and, more recently, her adoptive father passed away. The only family member with whom Jacqueline continues to have regular contact is her adoptive sister, Joanne Henderson. Joanne has visited Jacqueline while Jacqueline has been on remand, and

Joanne has participated in Jacqueline’s case conferences. [ 21 ] Jacqueline has been diagnosed as suffering from a number of conditions. At the age of seven, she was diagnosed with dyslexia. Later, it was determined that Jacqueline was suffering from conduct disorder. Most recently, Dr. Logan, a family physician based out of the Regina Community Clinic with extensive experience in providing FASD diagnoses, has diagnosed Jacqueline as suffering from FASD. In terms of the specific deficits caused to Jacqueline by her FASD, it is particularly noteworthy that Dr.

Logan has found that she is impaired in terms of impulse control and problem solving. Dr. Logan also suggested that the FASD has led to Jacqueline’s emotional dysregulation, aggression, and violence. Although she was assessed as having a weakness in her academic achievement testing, it was not severe enough to be considered impairment. Nevertheless, Dr. Logan concluded that Jacqueline is impaired in terms of her receptive and expressive communication abilities, her long-term memory, and her adaptive behavior skills. [ 22 ] Over the years, a number of problematic incidents involving Jacqueline have been reported.

She has run away from group homes numerous times in the past. She has assaulted youths at school and in group homes, sometimes with little or no provocation or warning. Indeed, Jacqueline has been noted by group home staff to be, “incredibly impulsive and unpredictable.” She has faked seizures as well as drowning in a bathtub. In 2012, Jacqueline stole a mouse from a store and, after bringing it home, squeezed it to death. In the past, Jacqueline told doctors that someone had burned her on her chest while she was sleeping. However, her physician found that the marks in question were from a fungal skin infection.

In 2016, Jacqueline swallowed a pair of tweezers and they had to be removed by surgery. Later that year, Jacqueline had a sewing needle removed from her upper arm. It had festered there for more than a week after she inserted it. While serving her open custody sentence, she expressed the following threat to staff: “You’re lucky this door is locked, or I’d slit your throat and skin you like those dogs.” [ 23 ] Various professionals have drawn conclusions regarding Jacqueline that are pertinent to this sentencing hearing.

It has been observed by such individuals that Jacqueline shows little to no emotion and that there appears to be a disconnection between what she says and what she feels. Dr. Torrens, a registered psychologist with Saskatoon Child and Youth Services, has remarked that Jacqueline is not really a treatment candidate as she exhibits little foresight in her thinking. Dr. Torrens concluded that it is the environment that controls Jacqueline’s behavior in custody and that her behavior is not controlled by insight or a rehabilitative process.

Elizabeth McGrath, the registered psychologist who authored the court-ordered IRCS Assessment Report, similarly voiced her concern that Jacqueline would not be able to internalize what she learns in treatment to reduce her risk of committing future homicides, a concern that becomes more acute in a community setting. Indeed, professional assessments of Jacqueline’s propensity for future violence opine that she is at a high risk for violent action and that safety of others remains an issue with respect to her.

Multiple professionals have also expressed their opinions that Jacqueline will require life-long support and 24/7 supervision. [ 24 ] Given these conclusions, it comes as no surprise that the Provincial Director has determined that any treatment available under an IRCS sentence is not adequate to address Jacqueline’s needs and that, therefore, her participation in an IRCS sentence would not be appropriate.

An IRCS sentence is a youth sentence reserved for those young persons who have committed a serious violent offence, which includes murder, or an offence in which serious bodily harm was caused or attempted to have been caused.

Pursuant to section 72(7) of the YCJA , I can consider an IRCS sentence if I am satisfied that Jacqueline suffers from a psychological disorder or an emotional imbalance, if I am satisfied that a plan of treatment and intensive supervision has been developed for her, and if there are reasonable grounds to believe that the plan might reduce the risk of her committing another serious violent offence. I heard evidence that IRCS sentences are designed and administered with enhanced federal funding focused on the treatment needs of the young person.

The enhanced federal funding is often used for such services as psychological counselling for the young person, supports for the family of the young person, and living arrangement assistance for the young person. [ 25 ] I heard evidence about the suitability of the available correctional programming for Jacqueline. Because of how her FASD impacts her ability to benefit from cognitive behavioral programming, the Touchstone Program (which is the only violence prevention program offered in the youth system in Saskatchewan) would not be appropriate for Jacqueline.

Although the federal adult system does not provide violence prevention programming per se , it does provide correctional programming that is also cognitive behavioral in nature and based on social learning theory. However, this programming can be adjusted to accommodate the responsivity needs of those who suffer from FASD. For example, the program can be delivered in a more visual manner for such individuals. I heard evidence that the delivery of the program can be accommodated to the greatest extent at the Regional Psychiatric Centre.

Moreover, the Centre’s medical staff offers a host of mental health interventions aimed at ensuring that patients are sufficiently stable to benefit from the programming offered. It is important to remember that a life sentence within the federal system does not necessarily mean that Jacqueline would remain in custody for the rest of her life. It does mean that, if she is released from custody because her risk of reoffending can be sufficiently managed in the community, Jacqueline would be monitored for the rest of her life.

In the federal system, a parole officer would be tasked with supervising her in the community and advocating for her in terms of obtaining suitable community resources and programming, such as those offered by the FASD network. [ 26 ] Thus far, Jacqueline’s conduct while in custody has been less than exemplary. The court ordered a PSR for Jacqueline’s murder sentencing hearing, and this PSR was completed on February 27, 2017. It shows that, before the commission of the murder, she was the subject of a number of Facility Incident Reports.

In fact, from the beginning of August, 2015 to July 3, 2016, her behavior generated seven such reports. After Nikosis’ death to January 1, 2017, Jacqueline’s actions resulted in a further six reports.

[ 27 ] Some of these reports document how Jacqueline has frequently taken and concealed potentially dangerous items, such as pencils, pieces of metal, and razor blades. She has reacted in a volatile fashion when corrected by staff about such behavior.

It has been observed that, although Jacqueline recognizes when behavior is contrary to the rules, she occasionally behaves in a manner that seems to indicate that she does not always believe the rules apply to her. [ 28 ] The Update to the PSR that was tendered into evidence at the sentencing hearing is dated December 11, 2017 and, while it documents that Jacqueline continued to display problematic behavior while residing at the Paul Dojack Youth Centre (PDYC), there are some, albeit few, signs of recent positive developments.

Of particular note are the following sections of the Update to the PSR: [S]ince her last Pre-Sentence Report was completed, Jacqueline has been involved in numerous incidents at PDYC for reasons including spraying chemicals in another youth’s eye while cleaning tables, failing to comply with staff demands, self-harm, possessing contraband, verbal altercations with youth, threatening staff, gang writing, and being restrained for unstable behavior. . . Jacqueline chooses avoidance, isolation and continues to struggle with her social skills.

She frequently finds herself ostracized from the other long-term residents and will turn to looking for acceptance from newly admitted youth upon their arrival. . . Jacqueline continues to sit idly by or becomes involved with peers when they are exhibiting problematic behaviors, especially if it involves manipulating staff in order to gain something she knows the group is not allowed to have. In addition, Jacqueline continues to exhibit interactions that are not age appropriate like making immature and/or sexual statements when interacting with peers. . .

Jacqueline continues to frequently offend or repulse people with her style of interpersonal interactions, continues to lie to have her desires met and is not forth- coming in terms of taking responsibility for her actions. She has had fewer inter- personal problems overall, and is increasingly implementing prosocial strategies to avoid, mitigate, and properly handle conflict. Jacqueline has shown signs of implementing some strategies discussed in programming by de-escalating tense situations by going to her room. . .

The Custody Progress Report dated September 13, 2017, notes Jacqueline has had numerous instances where she has had troublesome interactions with peers and authority figures, and even threatened to kill the teacher on July 21, 2017. Despite this, it was noted Jacqueline works diligently at her school work when she is able to maintain her focus. In her most recent Custody Progress Report dated November 28, 2017, Jacqueline was noted to have average progress in the area of education. . . [She] is regarded as being one of the strongest and most productive youths in terms of academics on the unit.

It was noted that Jacqueline did not have any significant incidents in the classroom or with teaching staff in her last Progress Report, and was reported by the teaching staff to be a fairly prolific and focused individual in the classroom.

The writer of the Update to the PSR also observed that the frequency with which Jacqueline has been generating incident reports hasshown a slight decrease and that Jacqueline has maintained a Level 4 behavior, the highest level, since November 13, 2017. [29] The fact that Jacqueline has had recent periods of stability is consistent with her general pattern of behavior. It has been notedthat Jacqueline has, in the past, managed to do fairly well for a certain period of time, but then subsequently she has engaged in intenseaggression, some of which has been unpredictable and seemingly random, and some of which has involved an element of planning. III. ANALYSIS

(1) Under section 72(2) of the YCJA, what is the precise onus of proof required to be met before the court can order that anadult sentence be imposed? [30] The position of the Crown, regarding the onus of proof required to be met before the court can order that an adult sentence beimposed on a young person under section 72(2) of the YCJA, is somewhat ambiguous. This ambiguity is understandable given thedifferent positions adopted by various courts that have considered the question.

The vast majority of reported cases have opted for theview expressed most recently by Schwann J.A. in R v L.M., 2017 SKQB 336 at paras 109-112 [L.M.]. She held that the onus to order ayoung person liable for an adult sentence is neither proof beyond a reasonable doubt nor proof on a balance of probabilities. Instead, thestandard that was endorsed was one of satisfaction after careful consideration by the court of all the relevant factors. Initially, thisposition was also taken by Crown counsel. Subsequently, however, the Crown submitted that the appropriate standard was proof on abalance of probabilities.

Indeed, this latter standard had been endorsed by an earlier decision of the Court of Queen’s Bench ofSaskatchewan (see R v C.R.B., 2009 SKQB 176 at para 44, 334 Sask R 137 [C.R.B.]) as well as by the Alberta Court of Appeal (see, inparticular, the dissenting judgment, but not on this point, of O’Ferrall J.A. in R v J.F.R., 2016 ABCA 340 at para 77 [J.F.R.]). [31] Incidentally, it is far from clear that the onus of proof, as endorsed in the Saskatchewan decisions cited above, was determinativeof the results in those cases.

Therefore, an argument could be made that any judicial remarks in those decisions, about the standard ofproof that must be met under

section 72 of the YCJA, are obiter dicta. [32] In his written submissions, defence counsel explicitly cited L.M. as articulating the correct standard for the onus of proofpertaining to

section 72 YCJA applications. Moreover, he also referred to R v O.(A.), 2007 ONCA 144, 218 CCC (3d) 409 [O.(A.)] ascompelling authority for the rejection of the Crown onus on such applications being the “proof beyond a reasonable doubt” standard. [33] Nevertheless, reliance on O.(A.) for supporting such a proposition is problematic.

The court in O.(A.) drew heavily upon theSupreme Court of Canada decision in R v M.(S.H.), (SCC), [1989] 2 SCR 446 [M.(S.H.)], a case in which the court wascalled upon to determine the standard that must be met before a young person should be tried in adult court under the pre-adjudicativetransfer hearings under the Young Offenders Act [YOA]. In fact, most of the decisions that have adopted the “satisfaction” standard forsection 72 applications, including L.M., have also substantially relied on M.(S.H.).

In M.(S.H.) at paras 33-35, McLachlin J. explainedthat the type of evaluative decision called for in transfer hearings does not lend itself to the civil or criminal standard of proof because thecourt is not being asked to make findings of fact about past events. Indeed, the evidence given in the pre-adjudicative transfer hearingsunder the YOA was often too suspect in nature to make firm findings of fact at all.

As noted by Professor Nicholas Bala, One of the problems with transfer hearings [under the YOA] is that the youth court judge does not have complete information about the offence, but rather is obliged to essentially accept the Crown’s evidence, which is usually based on hearsay at this stage, about the offence. For tactical reasons, defence counsel often declines to have the youth testify at the transfer hearing, so the court has an incomplete picture of the situation. (Nicholas Bala, “The 1995 Young Offender Act Amendments: Compromise or Confusion?” (1994) 26 Ottawa L.

Rev. 643 at 662.) In relation to one transfer hearing, the Alberta Court of Appeal commented on the pliability of the evidence tendered at such hearingsand stated, “Opinion, inference, evidence of character, good and bad, are all received . . . Such an inquiry – one commencing withsentence to be followed by judgment – is no longer the private precinct of Alice and the Queen of Hearts.” (R v M(G.J.) (1993), 1993

ABCA 59 , 135 AR 204 at 206-208.) Thus, given the nature of the evidence tendered and accepted at YOA transfer hearings, itis not surprising that the Supreme Court of Canada would eschew the standards of proof used for adjudication in civil and criminal courtswhen determining the appropriate onus of proof that had to be met for transferring a young person to adult court.

However, now that thedecision as to whether an adult sentence should be imposed is a post-adjudicative, or at least a post-plea, one, with all of the evidentiarysafeguards in place associated with the criminal process, there is less reason to adopt the standard articulated in O.(A.) when determiningwhether or not an adult sentence should be imposed on a young person. [34] In addition, there is another, more compelling, justification for viewing O.(A.) as a troublesome authority pertaining to the onusof proof associated with

section 72 of the YCJA. The standard affirmed in O.(A.) may well run afoul of constitutional requirements. TheOntario Court of Appeal rendered its decision in O.(A.) prior to the Supreme Court of Canada’s ruling in R v D.B., 2008 SCC 25, [2008]2 SCR 3 [D.B.]. The court’s decision in D.B. served as the catalyst for the legislative reforms which gave life to the presently wordedversion of

section 72 of the Act. At issue in D.B. was the originally enacted version of

section 72, which created a category ofpresumptive offences, including murder, subjecting youth to adult sentences unless the young person in question could demonstrate that ayouth sentence would be of sufficient length to hold him or her accountable. The court found that the statutory onus placed on youthsamounted to a Charter breach. The court acknowledged the Crown’s concession that it is a principle of fundamental justice that theprosecution prove, beyond a reasonable doubt, any aggravating factors in sentencing on which it relies (para 78 of D.B.).

The court alsoconcluded that any deviation from the traditional onus on the Crown, to demonstrate why a more severe sentence is necessary andappropriate in any given case, constitutes an infringement of

section 7 of the Charter (para 82 of D.B.). Taken together, it seems clearthat the onus of proof associated with the new

section 72 must be the “beyond a reasonable doubt” standard. [35] This conclusion is not seriously challenged by the Parliamentary debates that were brought to my attention concerning thepassage of the current version of

section 72. While it is true that the modern principle of statutory

interpretation articulated by theSupreme Court in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at para 21 means that legislative intent is animportant factor in determining the meaning of a statute, it is sometimes difficult to discern legislative intent by examining Parliamentarydebates. The best evidence from the debates cited to me comes from a speech made by Mr. Brent Rathgeber, a Member of Parliamentfrom the then governing Conservatives, when he rose in the House of Commons in support of the Bill that gave rise to the currentversion of

section 72 of the YCJA. In the speech, he recounted that a former Bill that was initially tabled, but not passed, in response toD.B. had explicitly indicated that the test for imposing an adult sentence on a young person required that a judge be satisfied beyond areasonable doubt that an adult sentence was necessary. Mr.

Rathgeber then stated as follows: When we were consulting, a number of provinces expressed the view that “beyond a reasonable doubt” was too high a standard to meet, was not required by the current case law and would make it significantly more difficult to obtain adult sentences in appropriate circumstances.

The current proposals remove reference to the “beyond a reasonable doubt” standard that had been in the former Bill C-4, thus leaving it up to the courts to determine the appropriate standard of proof, as is the case under the current law. (House of Commons Debates, 41st Parliament, 1st Session (27 September 2011) at 1524 (Hon. Andrew Scheer).) I read this speech as reflecting a certain amount of uncertainty on the part of our elected representatives as to the nature of theconstitutional constraints imposed by the Supreme Court in D.B..

It also seems that it was in light of this perceived uncertainty thatParliamentarians were content to defer to the judgment of the courts regarding the onus of proof that should attach to the new

section 72.The Parliamentary debates cited to me are not a source from which a clear statement of legislative intent can be discerned pertaining tothe precise onus of proof required for Crown applications under the new provision. Certainly, any inference I could draw ofParliamentary intent for a

section 72 onus of proof lower than the “beyond a reasonable doubt” standard would not be strong enough tosupport a reading of the provision which is, arguably, at odds with the Charter.

(2) Does section 72(1) of the YCJA require the court to engage in a blended analysis of moral blameworthiness andaccountability in making the assessment as to whether an adult sentence is warranted or does the provision envision a two-pronged test involving separate inquiries, both of which have to be satisfied, before an adult sentence can be meted out? [36] The issue of whether or not

section 72 of the YCJA requires the court to engage in a blended analysis of moral blameworthinessand accountability or whether the provision should be interpreted as a two-pronged test, both prongs of which have to be satisfied before

an adult sentence can be imposed, can be resolved through an application of the doctrine of stare decisis . In L.M. , Schwann J.A.’s decision, that an adult sentence was not warranted, was premised on her conclusion that the Crown had not met the burden of rebutting the presumption of moral blameworthiness or culpability. She held that, to succeed in justifying an adult sentence, both prongs mentioned in section 72(1) had to be satisfied. I am therefore bound by her decision that the blended analysis, which had been conducted under the former version of

section 72, should no longer be applied. [ 37 ] But there are other important reasons to follow Schwann J.A.’s ruling. The provincial appellate courts that have considered this issue have recognized significant risks associated with the blended analysis approach.

In R v W.(M.) , 2017 ONCA 22 at para 106 , 134 OR (3d) 1 [ W.(M.) ], the court observed as follows: [A]s closely connected as the two prongs – the Presumption and the issue of accountability – are, there is a risk associated with considering the Crown’s application to have the young person sentenced as an adult in a blended analysis in which the Presumption and accountability are dealt with together. The risk is that a factor relevant only to one of the two prongs may be relied upon to support a finding in relation to the other. In R v J.M.

O. , 2017 MBCA 59 at para 53 [ J.M.O. ], the Manitoba Court of Appeal described the risk associated with a blended analysis in this manner: The risk of engaging in a blended analysis of moral blameworthiness and accountability, as opposed to a two-pronged approach, is that an adult sentence could be imposed where a serious offence is committed that may warrant an adult sentence to hold the young person accountable but his or her exercise of judgment in committing the offence was not sufficiently adult-like[.] [ 38 ] A key concern is that the blended analysis creates the potential that considerations pertaining to the sufficiency of the sentence might overwhelm the presumption of diminished responsibility.

This prospect is troubling because in D.B. the Supreme Court of Canada recognized that the principle that young people are entitled to a presumption of diminished moral culpability is a principle of fundamental justice within the meaning of

section 7 of the Charter . Only the two-pronged approach to

section 72 ensures that the principle of fundamental justice pertaining to the presumption is adequately protected and recognized. Put another way, the blended approach is one that risks, to an unacceptable degree, watering down the constitutional imperative in question.

(3) Has the Crown rebutted the presumption of diminished moral blameworthiness and culpability in this case? [ 39 ] Thus far, the jurisprudence dealing with

section 72 of the YCJA has indicated one way in which the Crown can rebut the presumption of diminished moral blameworthiness and culpability of a young person. As stated most recently in W.(M.) at para 98 , In order to rebut the Presumption the Crown must satisfy the court that, at the time of the offence, the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to him or her. In other words, the presumption can be rebutted if the Crown can establish, from inferences drawn from the circumstances of the

offence and the background of the young person, that the young person possessed adult-like maturity when committing the offence. [ 40 ] Crown counsel suggested there are ample reasons to conclude that, at the time of the offence, Jacqueline was operating at the maturity level of an adult.

Specifically, Crown counsel pointed to Jacqueline’s successfully executed plan to escape custody the night before the murder and to her fabrication of a story that would make getting assistance more likely (i.e., that she ran away from an out-of- town group home rather than escaping from a custodial facility located in Saskatoon). Crown counsel also noted that Jacqueline’s knowledge of the “normal” way to hold a baby and her acknowledgment that she attacked Nikosis out of anger show that her thought processes were sufficiently adult-like to rebut the presumption.

It is also suggested that Jacqueline’s attempts to cover up her involvement in the crime demonstrate a significant level of sophistication on her part. Finally, Crown counsel submitted that, by virtue of having committed the murder unassisted and not at the behest of anyone else, Jacqueline demonstrated that she possessed an adult’s capacity for independent judgment. [ 41 ] However, defence counsel has convinced me that little can be inferred from the facts surrounding the offence that can be utilized to rebut the presumption.

I agree with defence counsel’s observation that there was a paucity of evidence presented as to how Jacqueline escaped custody the night before the murder. As a result, it is unclear whether or not she executed a complex plan in order to avoid detection or whether she simply took advantage of lax security measures at the youth custody institution in making good her escape.

Moreover, it does not appear that Jacqueline had any kind of well thought out plan in the eventuality that she was successful in escaping from custody. [ 42 ] Defence counsel maintained that the fabrication Jacqueline expressed about running away from an out-of-town group home should not be interpreted as an example of sophisticated manipulation.

Instead it should be seen as part of Jacqueline’s established pattern of lying to others in order to gain their attention, ostensibly a mark of immaturity, which has included faked seizures and drowning and some false allegations of physical abuse (i.e., Jacqueline’s claim that someone burned her chest when she actually had a fungal skin infection). [ 43 ] Jacqueline’s knowledge of how to properly hold a baby, as demonstrated by the manner in which she initially held Nikosis, is not compelling evidence rebutting the presumption.

As observed by defence counsel, even most four- or five-year-old children know how to hold a young infant properly. Moreover, the fact that Jacqueline thought Nikosis was nine months old, as opposed to his actual age of 46 days, suggests that her cognitive functioning is below that of a normal adult. [ 44 ] A clear motive for a crime can be indicative of a more advanced capacity for moral judgment on the part of an offender. This was not the case here.

Jacqueline expressed a number of different explanations for her actions, including the claim that she “did not know what she was thinking” at the time of her attack on Nikosis. [ 45 ] Although Jacqueline did engage in post-offence conduct designed to cover up her involvement in the murder and prevent her apprehension for the crime, namely hiding Nikosis’ blanket and attempting to conceal herself behind a couch, her actions seem ill- conceived, naïve, and rudimentary in nature. Indeed, her attempt to cover up her involvement in the murder was similar in terms of sophistication to that of TF in W.(M.) .

After he participated in a murder, TF asked his mother to throw the gun involved out of the window. The court concluded that his actions did not reflect the insight into wrongdoing expected of a more mature, reflective, or considered adult. [ 46 ] Jacqueline’s offence did not involve others directing or encouraging her actions and she alone engaged in the offence. Thus, a claim that she was an impressionable follower rather than a leader, a claim that often buttresses a young person’s position that the presumption has not been rebutted, is not open to her.

Nevertheless, the fact that Jacqueline committed the murder while others were in the house, coupled with her ready and full admission to the authorities as well as her perfunctory efforts at concealing herself and some of the incriminating evidence, suggests that Jacqueline’s judgment and foresight were more akin to those possessed by youths than those possessed by adults. [ 47 ] Information about Jacqueline and her background also suggests that she lacked the insight and maturity of an adult.

Under cross- examination, witnesses that are familiar with Jacqueline’s behavior on remand agreed that she has frequently displayed immature behavior and some of this behavior, such as her tendency to make inappropriate sexual statements when interacting with peers, has been recorded in the Update to the PSR. In his written submissions, defence counsel astutely observed that the jurisprudence indicates that lower maturity may be indicated by the relative absence of adult guidance and the presence of Gladue factors, both of which are implicated in Jacqueline’s case. In Dr.

Logan’s assessment, Jacqueline’s adaptive behavior skills are impaired, and therefore she lacks the ability to deal with money and calculation, as well as meal preparation, among other things. This situation suggests that she is a young person who has always been cared for by others and who continues to require such care. This is not a case where the offender is living, or is capable of living, an independent lifestyle as an adult. Indeed, I agree with defence counsel’s assertion that, in many respects, Jacqueline is at best operating at an elementary school aged level.

Such a finding is bolstered by the clinical assessments pertaining to

her lack of impulse control and her difficulties in problem solving. Consequently, it is evident that the Crown cannot rebut thepresumption in this case by satisfying the court that, at the time of the offence, the evidence supports a finding that the young persondemonstrated the level of maturity, moral sophistication, and capacity for independent judgment of an adult. [48] Although this is the only manner in which the presumption has previously been rebutted in the reported cases, is there anotherway to rebut the presumption?

Crown counsel urged me to consider an alternate, less orthodox, fashion of rebutting the presumption.Simply put, the Crown contended that it can rebut the presumption of diminished moral blameworthiness or culpability of a youngperson under section 72(1)(

a) of the YCJA by advancing evidence that the young person’s lack of adult maturity, moral sophistication,and capacity for independent judgment, which are implicated in the offending behavior, are largely due to factors other than age. [49] Defence counsel asserted that this method of rebutting the presumption is not open to the Crown. He submitted that a globalassessment of a young person’s maturity is called for in deciding whether or not the presumption has been rebutted.

In other words, allthe factors, including age, that are connected to the moral culpability of the offender for the offence should be considered whendetermining whether or not the presumption of diminished moral blameworthiness or culpability of a young person has been rebuttedunder section 72(1)(a). Defence counsel also posited an alternative argument. This argument assumes that Jacqueline had diminishedmoral culpability for the murder and that only age-related factors should be considered in assessing whether or not the presumption hasbeen rebutted.

The argument’s premise is that, because a myriad of circumstances contributed to Jacqueline’s reduced moral culpabilityfor this offence, including her age, her psychological and psychiatric issues, her Aboriginal life circumstances, and her FASD diagnosis,and because it is impossible to parse out with great precision the effects of age on Jacqueline’s moral culpability for the offence, thepresumption has not been rebutted. [50] A close reading of Mr.

Justice O’Ferrall’s dissenting judgment in J.F.R. provides some support for the need to conduct a holisticassessment of a young person’s moral culpability for an offence when considering whether or not the

section 72 YCJA presumption hasbeen rebutted. O’Ferrall J.A. discussed the YOA transfer case of R v I.D.B., 2005 ABCA 99 [I.D.B]. He then alluded to the notion thatthis case, had it been dealt with under

section 72 of the YCJA, would have been an impossible one for the Crown to rebut thepresumption. [51] I.D.B. involved a young person who was transferred to adult court for a first degree murder charge involving his killing of a childcare worker by hitting her in the head with a piece of wood. The young person was 14 years of age at the time of the offence and hesuffered from severe FASD, severe Attention Deficit Hyperactive Disorder and Impulse Control Disorder. The Alberta Court of Appealagreed that the youth’s permanent and overwhelming disabilities resulted in him always presenting a risk to re-offend.

It was thesecognitive disabilities and not his age that were implicated in his moral culpability for the offence. The court upheld the decision totransfer the youth to adult court as concerns about the protection of the public had to prevail under the transfer provisions of the YoungOffenders Act. [52] O’Ferrall J.A.’s discussion of I.D.B. could be interpreted as suggesting that one cannot rebut the

section 72 YCJA presumption bypointing to evidence of diminished moral blameworthiness arising from causes other than age. However, it should be noted that O’FerrallJ.A.’s views on this matter are far from thoroughly considered or determinative, even from his perspective. Indeed, he concluded hisjudgment with the observation that further statutory direction or judicial guidance may be necessary when assessing the issuesconcerning the presumption of diminished moral blameworthiness or culpability in the context of

section 72 of the YCJA (see para 98 ofJ.F.R.). [53] As indicated earlier, the Supreme Court of Canada’s decision in D.B. served as the catalyst for the 2012 legislative amendmentsto

section 72 of the YCJA, including the section’s explicit recognition of the presumption. In D.B., the court held that the presumption ofdiminished moral blameworthiness of young persons is a principle of fundamental justice within the meaning of

section 7 of the Charter. [54] An analysis of D.B. clearly supports the Crown position that the presumption can be rebutted through evidence that thediminished moral blameworthiness or culpability of a young person for an offence is due to factors other than age. Abella J., in reflectingon the rationale for Canada’s separate legal regime for young people, explained that “because of their age, young people have heightenedvulnerability, less maturity and a reduced capacity for moral judgment.

This entitles them to a presumption of diminished moralblameworthiness or culpability.” (D.B. at para 41.) As Crown counsel observed in her written submissions, there is no suggestion inAbella J.’s judgment that the presumption of diminished moral blameworthiness is based on a consideration of other factors such asmental health issues or cognitive disabilities. This

interpretation is further supported by examining the previous juvenile justicelegislative regime, the YOA. At para 66 of D.B., the court cites the following passage from Lamer C.J.’s judgment from Reference reYoung Offenders Act (P.E.I.), (SCC), [1991] 1 SCR 252 at 268: “[W]hat distinguishes this legislation [YOA] fromthe Criminal Code is the fact that it creates a special regime for young persons.

The essence of the young offenders legislation is adistinction based on age and on the diminished responsibility associated with this distinction.” [55] The presumption recognizes that the signature qualities of youth are transient; the impulsivity that may dominate in youngeryears can, and often does, subside as a person gets older. This phenomenon, which occurs with much regularity, justifies a less punitive,

more rehabilitative youth sentence. As a result, it should be open to the Crown to rebut the presumption by demonstrating that impulsivity/immaturity, when it is implicated in the offending behavior, is not largely attributable to age but to other, less transient, factors. [ 56 ] It will be difficult to rebut the presumption in section 72(1)(

a) of the YCJA by attempting to demonstrate that, although the young person’s moral blameworthiness for the offence is diminished, the young person’s reduced state of culpability is not age-related. It requires singling out and assessing the impact of age on the young person’s responsibility for the offence. The evidentiary record tendered at the sentencing hearing may be insufficient to allow the court to conduct this assessment.

In such a case, of course, the presumption would apply and a youth sentence would be imposed. [ 57 ] Assuming an evidentiary record that is sufficient to allow an assessment of the impact of age on the diminished moral culpability of the offender for the offence, what legal test should govern when the presumption is rebutted? Given my previous ruling that the two prongs of the

section 72 YCJA test must be established by the Crown beyond a reasonable doubt, it would be virtually impossible to rebut the presumption if the Crown were called upon to establish that age played no role at all in the young person’s diminished state of moral blameworthiness. Furthermore, the relationship between the offender’s age and his or her diminished moral blameworthiness for the offence requires additional elaboration. [ 58 ] Not all factors that can be considered to impact upon an offender’s moral blameworthiness for an offence need to be causally linked to the commission of the offence.

In R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ], the Supreme Court ruled that the interconnections between Gladue factors and offending are simply too complex to require a direct causal link between them.

Quoting from the Aboriginal Justice Inquiry of Manitoba, the court states: Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government’s treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated. (Para 83 of Ipeelee .) In R v Chanalquay , 2015 SKCA 141 at para 52 , 472 Sask R 110 the Saskatchewan Court of Appeal affirmed that, “the search here is not for a cause-and-effect relationship but for circumstances that cast light on the degree of the offender’s blameworthiness for the specific offence in issue.” [ 59 ] However, in rebutting the presumption in section 72(1)(

a) of the YCJA , there are cogent reasons for requiring the Crown to establish the lack of a causal connection between the age and the state of diminished moral blameworthiness of the offender. The lack of such a causal connection may be shown by demonstrating that factors other than age caused the offender’s diminished moral culpability for the offence.

In justifying the rejection of a causative approach between Gladue factors and an Aboriginal offender’s moral blameworthiness for an offence, Professor Carter observes: Such causal connection tests respond to the gap that always exists in inductive reasoning between evidence for a cause and certainty that such cause has been identified. In other areas of law, our courts have decided that the interests of justice compel them to accept something in the nature of a rebuttable presumption that certain forms of status are markers for certain claims to consideration. . .

Anyone with the briefest experience working in Canada’s western and northern criminal courts must make the inductive assumption that there is some strong but very complex relationship between the historic and contemporary experiences of Aboriginal people and their disproportionate involvement with the criminal justice

system. (Mark Carter, “Of Fairness and Faulkner” (2002) 65 Sask Law Rev 63 at 73.) So, in the absence of a rebuttable presumption that Gladue factors cause reduced moral culpability for Aboriginal offenders who commit offences, requiring a causal connection to be established between Gladue factors and an offender’s moral blameworthiness would be inappropriate. However, section 72(1)(

a) creates a rebuttable presumption that age is a marker for a claim of reduced moral culpability for young persons who have committed offences. In such a circumstance it makes sense to require the Crown to rebut the presumption by advancing evidence that establishes that the diminished moral culpability of a young person for committing an offence is not causally linked to age but is instead causally linked to other factors.

Indeed, courts have required that, before it can be concluded that young persons have diminished moral culpability for offences because they suffer from conditions such as FASD, there must be a causal link between the FASD and the commission of the offences (see, for example, paras 73 and 108 of J.M.O. ). [ 60 ] Although the general test for causal responsibility in criminal law is one that pertains to causation as an aspect of the actus reus of offences, it may be sagacious to utilize this test when grappling with causation as an element in sentencing.

In R v Nette , 2001 SCC 78 , [2001] 3 SCR 488 [ Nette ], the general causation standard in relation to the actus reus of most offences was articulated as the “significant contributing cause” test.

In the course of endorsing this standard, the court noted that the legal rule embodied by this standard is “based on concepts of moral responsibility and is not a mechanical or mathematical exercise.” ( Nette at para 83 .) These characteristics of the “significant contributing cause” test make it an ideal standard upon which to assess whether the diminished moral culpability of a young person for committing an offence is not causally linked to age. Consequently, if the Crown is attempting to rebut the presumption in section 72(1)(

a) of the YCJA in a case where the young person’s moral blameworthiness or culpability is diminished, the Crown has to establish that the offender’s age was not a significant contributing cause of his or her lowered state of responsibility for the offence. [ 61 ] This is precisely what the Crown sought to do in this case. Specifically, Crown counsel submitted that Jacqueline’s FASD causes her to have difficulties controlling her impulses and these difficulties played a pivotal role in her attack on Nikosis.

Moreover, the Crown argued that any impulsivity associated with Jacqueline’s FASD was not greatly heightened by the impulsivity that is normative of the adolescent experience. In other words, it is possible to single out any age-related impulsivity and determine that its impact upon Jacqueline’s offending behavior was minimal. [ 62 ] In particular, the Crown relied upon Jacqueline’s unenviable record of disciplinary infractions since being charged with the murder as evidence that her issues concerning impulse control are not largely age-related.

Steady improvement of young persons, in terms of compliance with institutional rules while they are in custody awaiting sentencing, has often been cited as evidence that these youths have matured (see, for example, C.R.B. , W.(M.) , R v P.H. , 2017 BCSC 1105 , R v R.K. , 2017 BCSC 1510 , and R v A.(D.R.) , 2014 MBQB 199 ) and that, at the time their offences were committed, the offenders lacked adult maturity. Conversely, lack of such steady improvement suggests that the impulsivity associated with an offender’s behavior is not age-related but instead mainly due to the influence of other factors.

There has been no steady improvement of Jacqueline’s behavior during the approximately 20 months she has been in pre-sentence custody. Although her last institutional progress report indicated that Jacqueline did not have any significant incidents in the classroom or with teaching staff, and that she is increasingly implementing prosocial strategies to deal with potential conflict (such as complying with being escorted to her room), she has had previous intermittent periods of good behavior that were followed by bouts of aggressive, unpredictable actions.

Moreover, it has been observed that it is mainly Jacqueline’s environment that controls her behavior in custody, not her insight into her behavior. Jacqueline’s facility incident report history, as well as other evidence pertaining to her attitude and behavior while in custody, taken in their entirety, does not suggest a typically developing young woman, where the transience of youthful immaturity would give way to the judgment expected of an adult. [ 63 ] The only reasonable inference to draw is that age was not a crucial element of the impulsivity implicated in Jacqueline’s offending behavior.

This inference is bolstered by certain concessions made by defence counsel during his submissions and the evidence that justifies these concessions. I asked defence counsel whether, based on the evidence tendered, there was any reasonable possibility that Jacqueline’s impulsivity was influenced by her age. He responded by stating that none of the reports prepared by professionals in this case point exclusively to age.

I then asked him, “Do these professionals say that age, in addition to the other factors cited, such as Jacqueline’s Gladue circumstances, the effects of her FASD, and the lack of parenting support that she received, led to the cognitive issues implicated in her offending behavior?” He replied by saying, “No, I don’t think so.” In fact, none of the reports entered into evidence at the sentencing hearing suggest that Jacqueline’s offending behavior was the result of immaturity/impulsivity associated with her age.

The consensus from those who have examined her is that Jacqueline will require lifelong care because she will not outgrow the immaturity/impulsivity associated with her FASD diagnosis. [ 64 ] Consequently, I am convinced beyond a reasonable doubt that Jacqueline’s moral culpability in committing the murder was diminished, but that her age was not a significant contributing cause of her lower level of moral blameworthiness for the offence. As a result, the Crown has rebutted the presumption in section 72(1)(

a) of the YCJA .

(4) Has the Crown satisfied the court that a youth sentence would not be of sufficient length to hold Jacqueline accountable?

[ 65 ] The second prong of the

section 72 test requires that I be convinced that a youth sentence imposed in accordance with the purpose and principles set out in section 3(1)(b)(ii) and

section 38 of the Act would not be of sufficient length to hold Jacqueline accountable for her offending behavior. Although defence counsel conceded that the Crown has met its burden on this prong of the statutory test, this concession does not absolve me of my responsibility to fully consider the matter and arrive at my own conclusions. [ 66 ] The other statutory provisions referenced in section 72(1)(

b) of the YCJA reveal important features of youth sentencing under the Act. These provisions state as follows: 3.

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

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability, and must emphasize the following: (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity[.] 38.

(1) The purpose of sentencing under

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

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

section 3 and the following principles: (

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

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

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

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

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

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

(

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

i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences.

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

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

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

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

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

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

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

As the above mentioned text demonstrates, and as I have previously concluded in other cases, the YCJA “clearly creates a hierarchyamong the sentencing principles it recognizes, with proportionality at the top of that hierarchy.” (see my judgment in R v K.S.V., 2015SKPC 35 , 2015 SKPC 035 at para 32.) [67] Because proportionality plays such a central role in youth sentencing under the YCJA, it is useful to explore this concept.Proportionality requires that the sentence meted out be in accordance with the gravity of the offence, in terms of the offending behavior’snormative character and the consequential harms caused by the offence, as well as the degree of responsibility of the offender for theoffence.

Although the upper limit of youth sentences under the YCJA are determined by the principle of proportionality, the Act itself, toa certain extent, builds in a measure of diminished moral blameworthiness for young persons by making them subject to a sentencingregime with lower maximum penalties than those faced by adult offenders.

The actual penalty imposed on a young person through ayouth sentence is influenced by the operation of any presumptions of diminished moral blameworthiness (if left unrebutted) and/or thepresentation of evidence concerning the young person’s moral culpability for the offence. [68] A proportionally-based model of sentencing, such as the one governing youth sentences under the YCJA, is one that endorses a“just deserts” or retributivist approach to sentencing. Nevertheless, this approach to youth sentences does not mean that desert is thedetermining factor on the amount of punishment that should be imposed.

Nor does it mean that desert simply sets the punishment ceilingand that any punishment below that ceiling would be deemed appropriate. While rehabilitative concerns can serve to lower a sentencebelow the punishment ceiling set by proportionality, particularly when, for example, the offender has taken post-offence steps todemonstrate his or her amenability to be rehabilitated, desert serves as a sort of anchor for the sentencing process. The more cogent theevidence of an offender’s rehabilitative prospects, the more likely it will be that considerations of desert will begin to give way to a lesspunitive sentence.

Thus, sentences that are not wholly driven by the engine of proportionality can be deemed fit, but retributive concernswill remain difficult to displace either partially or entirely by rehabilitative justifications. [69] Turning specifically to the concept of “accountability” as that term is used in section 72(1)(

b) of the YCJA, the decision of theManitoba Court of Appeal in R v McClements, 2017 MBCA 104 at para 48 provides the following helpful

summary of this concept: [T]he accountability inquiry under section 72(1)(

b) has several considerations: 1) The moral culpability of the young person, having regard to the intentional risk taking of the young person; 2) The consequential harm caused by the young person; and 3) The normative character of the young person’s conduct. The consideration of the normative character of the conduct calls for a consideration of societal values. In the end, a youth sentence must satisfy two objectives: 1) It must be long enough

to reflect the seriousness of the offence and the young person’s role in it, and 2) It must be long enough to provide reasonable assurance of the young person’s rehabilitation to the point where he/she can be safely reintegrated into society. If the Crown satisfies a youth justice court judge that either of these objectives cannot be achieved by a youth sentence, then an adult sentence must be imposed.

Of course, this passage should not be construed as supporting the proposition that an adult sentence can be justified in a case where proportionality concerns would militate towards a youth sentence but a longer sentence is necessary to rehabilitate the offender.

Instead, this passage should be interpreted as recognizing the common sense proposition that if proportionality concerns suggest than an adult sentence is fit, the lack of an offender’s rehabilitative prospects simply buttress the appropriateness of imposing the adult sentence. [ 70 ] In assessing Jacqueline’s moral culpability for Nikosis’ murder, several factors have to be taken into account. The Gladue factors certainly shed light on the degree of her blameworthiness for this offence and reduce her moral culpability for it.

In addition, the causal role played by her FASD in inhibiting her ability to control the impulses that led to the offence reduces her moral blameworthiness as well.

However, the fact that Jacqueline intentionally inflicted bodily harm upon Nikosis in such a callous, brutal, and senseless manner, and that she had the subjective foresight that his death was likely to be caused by her attack, suggest that she still possessed a high level of moral blameworthiness for this offence, one that may be sufficient to justify an adult sentence on accountability grounds. [ 71 ] A case that supports such a conclusion is R v D.R. , 2015 SKQB 157 , 475 Sask R 211 [ D.R. ]. In D.R. , the young person pled guilty to two counts of second degree murder.

Although he played an active, physical role in one of the murders and assisted another person in the second killing, he was not the architect of the attacks that took place that night. D.R. suffered from a subset of FASD that inhibited his impulse control, and there were a number of significant Gladue factors in his history. Yet, the nature of his form of FASD was such that the Provincial Director determined that an IRCS program was available and there were reasonable grounds to believe that such a program might reduce D.R.’s risk of committing another serious violent offence.

Nevertheless, the court concluded that a youth sentence would not be of sufficient length to hold D.R. accountable. Thus, accountability concerns can lead to the imposition of adult sentences even when the young person’s moral blameworthiness is diminished by FASD and Gladue factors. [ 72 ] The harm caused by Jacqueline’s offence is profound and far reaching. Murder is the most serious offence in our justice system as it involves the loss of human life. But the loss caused by this offence extends beyond the impact upon Nikosis.

The victim impact statements from Nikosis’s family members illustrate that they have suffered, and continue to suffer, psychologically, physically, emotionally, and financially as a result of this tragedy. [ 73 ] In gauging the normative character of an offender’s conduct, the jurisprudence suggests that it is important to consider concerns that the young person continues to pose a threat to public protection (see, for example, R v Todorovic , 2014 ONCA 153 at paras 40-43 , 306 CCC (3d) 171). Jacqueline brutally murdered one of the most vulnerable victims imaginable, an innocent and defenceless 46-day-old infant.

Moreover, her reasons for doing so are still, largely, unfathomable. Perhaps most disturbing, as has been noted earlier, a number of professionals have concluded that Jacqueline is not really a treatment candidate. Consequently, her high risk to violently reoffend remains unabated, and even she has expressed concerns that she might commit a similar offence in the future. [ 74 ] Given the seriousness of this offence and the degree of responsibility that Jacqueline bears for it, a youth sentence would not be a proportional response.

Moreover, a youth sentence would not be long enough to provide reasonable assurance of Jacqueline’s rehabilitation to the point where she can be safely reintegrated into society. Consequently, the Crown has established, beyond a reasonable doubt, that a youth sentence would not be of sufficient length to hold Jacqueline accountable for her offending behavior under section 72(1)(

b) of the YCJA . IV. CONCLUSION [ 75 ] In ultimately deciding that Jacqueline should receive an adult sentence for the murder of Nikosis, I have come to a number of conclusions pertaining to matters of law. In particular I have held that

section 72 of the YCJA , the legislative provision governing the imposition of adult sentences upon young persons, envisions a two-pronged test involving separate inquiries, both of which have to be satisfied, before an adult sentence can be meted out. To be successful in its application for an adult sentence, the Crown must establish that the presumption of diminished moral blameworthiness or culpability of the young person is rebutted and that a youth sentence would not be of sufficient length to hold the young person accountable for his or her offending behavior.

The constitutional imperatives at play require the court to eschew a blended analysis of a young person’s moral blameworthiness and accountability. Constitutional principles

also require that the Crown meets the “beyond a reasonable doubt” standard in satisfying the court both that the presumption has been rebutted and that accounta

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