2016 MBPC 14, 2016 MBPC 14

Cite: 2016 MBPC 14 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Krista Berkis, ) for the Crown - and – ) ) D.D., Accused ) ) Bruce Bonney and William Marks, ) ) for the Accused ) ) Judgment delivered: March 14, 2016 ) Restriction on Publication : This judgment is subject to s. 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 . MARY KATE HARVIE P.J.

Introduction [ 1 ] The accused D.D. has entered guilty pleas to seven counts of robbery committed in February and March of 2015, as well as a number of counts of failing to comply with an undertaking and failing to comply with a sentence arising out of the same time period. With respect to the robberies, Crown counsel brings an application pursuant to s. 72 of the Youth Criminal Justice Act (“YCJA”) for the accused to be sentenced as an adult.

Defence counsel opposes the application. [ 2 ] The accused has been involved with the criminal justice system since 2012, and over the last four years he has been the subject of numerous reports, all of which were filed in support of this application, including: - Forensic reports completed in August 2014, February, 2014 and June 2012, as well as one completed in October of 2015 specifically in relation to this application; - A series of Pre-Sentence Reports completed in October 2013, July 2012, October 2012 as well as a Court Ordered Progress Report dated February 2014.

In October of 2015, a further Pre-Sentence Report was completed specifically in relation to this application; - The Victim Impact Statements of the complainants from two of the robberies; - A series of institutional records outlining his behaviour since his detention on these matters and detailing his participation in programming; - A copy of his criminal record. [ 3 ] Both Crown and Defence filed authorities in support of their position. No viva voce evidence was called during this application. A Brief

Summary of the Offences [ 4 ] As indicated, the accused has entered guilty pleas to seven counts of robbery which occurred in February and March of 2015. The robberies were caught on video and those videos were played for the Court as part of this application. [ 5 ] There is a degree of similarity between each of the incidents. The victims in each robbery were employees of convenience stores, gas bars or other small retail facilities. The victims were highly vulnerable given the layout of the facility and given that, with one exception, there was only one employee on staff at the time the offences were committed.

The accused attempted to disguise his appearance and was armed with a large knife during each of the robberies. While none of the clerks were physically harmed and each

incident occurred over a very brief period of time, the videotapes capture the frightening nature of these types of offences. [ 6 ] On February 5 th , 2015 at approximately 6:56 P.M. the accused attended the Timboctou Market on Langevin Street. Having disguised his identity with a balaclava, the accused approached a store clerk brandishing a knife, demanding cash and cigarettes. The accused obtained $800.00 in cash and more than a hundred packages of cigarettes. [ 7 ] On February 6 th , 2015 at approximately 10:43 P.M. the accused attended to the Safeway Gas Bar on Marion Street.

Having disguised his identity with the hood of a red sweatshirt pulled tight around his face and a hat pulled down low to his eyes, the accused brandished a knife and demanded cash and cigarettes. He obtained $150.00 in cash and two packages of cigarettes before making good his escape. [ 8 ] On February 7 th , 2015 at approximately 6:53 P.M. the accused attended the Marion Grocery Store on Bertrand Street. He once again disguised his identity with a hooded sweatshirt and a pair of sunglasses. Brandishing a knife, the accused demanded money of the store clerk.

The accused picked up the entire cash register from the counter but dropped it prior to exiting. He managed to obtain $370.00 in cash prior to leaving. [ 9 ] On February 19 th , 2015 at approximately 6:49 P.M. the accused attended Little Caesar’s Restaurant on Goulet Street. Having disguised his identity with a dark baseball cap and scarf covering his face, he brandished a knife and demanded cash of the employees. The accused once again picked up the entire cash register, obtaining an unknown amount of cash. [ 10 ] On February 28 th , 2015 at approximately 8:35 P.M. the accused attended the Petro Canada on St.

Mary’s Road. Disguising his identity with a dark hat and bandana covering his face, the accused approached the store clerk with a knife demanding “all the money in the till and cigarettes”. He was able to obtain $100.00 in cash and 25 packages of cigarettes before making good his escape. [ 11 ] On March 2 nd , 2015 at 3:04 P.M. the accused, along with several co-accused, attended the Safeway Gas Bar on Alpine Avenue. Having disguised his identity with a neck warmer and sunglasses, the accused entered the Gas Bar while the co-accused watched outside.

Brandishing a knife, the accused demanded cash and cigarettes, and obtained $224.75 in cash and four cartons of cigarettes. [ 12 ] Shortly after the Safeway Gas Bar robbery, the accused and co-accused were arrested. The accused was found to be wearing a distinctive gray jacket that he had worn during the robbery as well as during four other robberies. [ 13 ] Throughout the period of time that the accused was committing these robberies he was subject to a Probation Order and an Undertaking.

He had been released from the Aggasiz Youth Centre on November 30 th , 2014 to serve the community portion of a Custody and Supervision Order and been directed by Child and Family Services to reside at a specialized foster placement, but absconded from that placement on January 26 th , 2015. Having been re-arrested on March 3 rd , 2015, the accused was initially held at the Manitoba Youth Centre, but was transferred to the Aggasiz Youth Centre on July 8 th , 2015, where he continues to be held in custody.

The Statutory Authority [ 14 ] YCJA section 72(1) sets out the test to be applied when determining whether a young person should be subject to an adult sentence. The

section states: 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 behaviour. [ 15 ] Crown counsel bears the onus in an application of this nature to satisfy the Court that an adult sentence ought to be imposed. It is well recognized that the test to be applied by the Court is neither that of “proof beyond a reasonable doubt” nor “proof on the balance of probability”, but rather one which requires the Court to carefully assess all relevant factors set out in s. 72 (see R. v. A.O. , 2007 ONCA 144 , paras. 34 through 38; and R. v.

D.D.T. , 2010 ABCA 365 at para. 7 ). [ 16 ] It is important to bear in mind that an application of this nature is one which can have serious ramifications for the accused. In A. O., supra , the Ontario Court of Appeal commented that it is important for “a youth justice court bear in mind the very serious consequences of an adult sentence for the young person, so as to only order an adult sentence when necessary to fulfil the objectives of the “ YCJA ” (at para 38). It is only when accountability necessitates an adult sentence as a “meaningful consequence” that one should be imposed.

Further, while re-integration and rehabilitation are important factors for consideration, they are not synonymous with “meaningful consequence”. In R. v. A.O. supra, the Court noted (at para 47): In our view, for a sentence to hold a young person 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. [ 17 ] The Court must therefore consider the provisions of YCJA s. 3 and s. 38 , specifically assessing whether a youth sentence would be of sufficient length to address those provisions. 3.

(1) The following principles apply in this Act:

(

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

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

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; And: 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. Sentencing principles

(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. Factors to be considered

(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. [ 18 ] In applications of this nature, the length of sentence available under the two sentencing regimes is a critical factor for the Court’s consideration. Both crown and defence counsel agree that pursuant to YCJA s. 42(2)(

n) the maximum sentence available under the youth regime is limited to a maximum of three years. Therefore, if a sentence of three years is imposed by way of the maximum custodial sentence of two years of custody followed by a year of community supervision, the Court is not entitled to impose a period of supervised probation. The Court does have some flexibility in how to assess time in custody, and can decline to give the accused any credit for the time he has spent in custody.

Given that this accused has spent approximately one year in custody, this represents a significant period of additional custody in addition to the three year maximum available. [ 19 ] In contrast, the maximum sentence available under the Criminal Code is one of life imprisonment. A sentence of two years or less would allow the Court to impose a period of up to three years of probation.

While credit for pre-sentence custody is often sought and granted, the overall length of sentence available under the Criminal Code is significantly greater than that under the YCJA . [ 20 ] Crown counsel seeks a lengthy penitentiary term and argues that the maximum sentence allowed under the YCJA is insufficient to hold the accused accountable taking into account what she argues is the “moral blameworthiness” of the accused and would not represent a “meaningful consequence” given the serious nature of the robberies.

Defence counsel argues that, taking into account the recent progress made by the accused as well as the time in custody, a sentence under the YCJA would be of sufficient length to address all principles of sentencing. Factors Set Out in YCJA

Section 72: [ 21 ] YCJA s. 3 recognizes the need for a separate system for youthful offenders, “based on the principle of diminished moral blameworthiness or culpability”. In considering an application for an adult sentence under s. 72, the Court must be satisfied that this principle has been rebutted and that a sentence longer than that which is available under the YCJA should be imposed. In order to address the provisions of s. 72, a number of factors must be considered. Circumstance and Seriousness of the Offence [ 22 ] There is no issue as to the seriousness of the offences.

They include a number of aggravating factors. The number of offences is of considerable concern, as is the fact that they were committed over a period spanning approximately one month. Having said that, I also recognize that these offences fall within the definition of a “spree” which was fueled by an addiction to drugs and alcohol; see R. v. Wozney 2010 MBCA 115 . The accused used a weapon during the commission of an offence.

The offences were committed shortly after his release from custody on November 30 th , 2014, while non-compliant with the direction of correction services and while he had absconded from his group home. The target of the robberies were convenience and other small and vulnerable stores, a fact which is particularly aggravating and which has been the subject of previous judicial comment.

All but two of the offences were committed by the accused alone, with his appearance disguised with hats, scarves, balaclavas and sunglasses. [ 23 ] I recognize that the accused says that he was encouraged to participate in the robberies by the much older individuals he was staying with while on the run and that they provided the clothing for his disguise. I also recognize that the accused has articulated some awareness of the seriousness of these offences and their impact on the victims. [ 24 ] Victim Impact Statements were obtained from two of the victims.

While one victim expressed less concern, another described the significant and ongoing emotional impact of this offence. The Age and Maturity of the Young Person [ 25 ] The accused, now 18, was 17 years of age at the time the offences were committed. The significant material before the Court outlines the challenges the accused has both faced and presented since early childhood. The forensic report completed by Dr.

Brian Chaze in October of 2015, indicates that by age three the accused “had received a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and by age six a diagnosis of Oppositional Defiance Disorder (ODD).” The report confirms those diagnoses and adds to them “Substance Abuse Disorder (cocaine and alcohol) and Verbal Learning Disorder.” [ 26 ] The forensic report describes the accused as “an irritable individual” who has given “indications of his need for rehabilitation and treatment, but these appear superficial in light of later contradictory statements by him, in which he refused to consider interventions and conditions imposed by the Court.” The report describes the accused as “generally intelligent, which is consistent with collateral information indicating that he is finishing his grade twelve studies, with credits remaining in English and Gym.” These observations are consistent with those made in the Pre-Sentence Report, which describes the accused as “an intelligent young man.

He understands right from wrong and usually knows what he should do in a situation. He can be very polite and respectful to staff, but usually only when he wants or needs something. When his behaviour is challenged, he has learned what to say and do to either get out of trouble or deflect attention away from him.” The report details some of the struggles the accused has within the educational environment, likely due to his

ADHD and ODD diagnoses, but it confirms that he is working towards completing his high school credits, and that he plans to “go to college and obtain his Carpentry diploma.” [ 27 ] The accused is not suffering from significant cognitive deficits. While the forensic report suggests that the accused has a profile “consistent with a Verbal Learning Disability” it also describes his cognitive capacities as having “relatively well-developed non-verbal reasoning skills”. The accused acknowledged that he “caves to peer pressure easily” and that he committed the robberies because he wanted to be “cool” and “fit in”.

The evidence suggests that while the offences were committed at the urging of others to fuel an addiction, the accused had an awareness of the seriousness of the offences. Character and Background of the Young Person [ 28 ] The accused has struggled with behaviour issues throughout his life, no doubt related to ADHD and ODD diagnoses. While he comes from a loving family, those relationships have been impacted by the behaviour of the accused, which has ranged, over the years, from challenging to criminal.

Early Pre-Sentence Reports indicate that the accused comes from “a good family” where there was no violence in the home. The accused has five siblings, who enjoy a good relationship with each other. Difficulties have arisen within the family due to inappropriate sexual behaviour on the part of the accused. His family sought the assistance of Child and Family Services when the accused’s behaviour in the home became unmanageable and when it came to light that he had offended sexually against his sister.

The accused has had access to a multitude of programming, specialized placements, counselling and support which, unfortunately, have not succeeded in curbing his unlawful and inappropriate behaviour. [ 29 ] His family continues to offer him love and support, although there appears to be a lack of appreciation on the part of his father as to the extent of his addictions issues, expressing the view that the accused “never had a problem with alcohol or drug use” but rather “just got ‘mixed up with the wrong crowd.’ ” Further, the plan for the accused to return to the family home is also unrealistic, given his previous offending against his younger sister, who continues to reside in the home.

Any plan which includes the accused returning to the family home would result in the immediate intervention of Child and Family Services. [ 30 ] The accused has long been regarded by those who have attempted to work with him as a challenge. He is an individual who is described by his probation officer, as “non-compliant, manipulative, deceptive and (who) sought out pro-criminal involvement.” His lack of cooperation with previous treatment regimes is directly related to these offences.

In the October, 2015 Pre-Sentence Report the accused stated “he was intoxicated on both cocaine and alcohol during all seven robberies” and that he was not taking his prescription medication. His addictions issues present as a particular concern given both the role they played in these offences and his unwillingness to commit in a meaningful way in addictions treatment.

The forensic report of October, 2015 expresses concern about the accused’s attitude “towards treatment in general, along with patterns of non-compliance with both medications and psychological resources offered to him in the past.” The accused is described as having “very little insight into the severity of his substance abuse difficulties.

In order to take advantage of substance abuse treatment, D. would need to show some motivation, for which he appears to have little at this time.” These concerns were echoed in the earlier Pre-Sentence Reports, in which the accused expressed the desire to remain substance free but also demonstrated a lack of participation in substance abuse counselling. [ 31 ] The accused has been participating in programming while in custody and for that he deserves credit. However, institutional records show that he continues to act inappropriately in a group setting.

He is described as needy, inconsiderate, self-centered and lacking in self control. More recent records note some improvement, a factor which defence counsel attribute to the accused’s participation in a new prescription drug regime. [ 32 ] Crown counsel argues that all of the forgoing supports their position that the accused requires a lengthy period in custody, in part for rehabilitative purposes. The challenge faced by the Court in this application relates to the forensic evidence. Crown counsel chose not to call viva voce evidence but rather relies on the written report of Dr.

Chaze, which concludes as follows: If D decides to engage in treatment, it is suggested that he be involved in substance abuse programming, educational programming sensitive to his Verbal Learning Disability, and skills-building programs aimed at improving his social skills and self-awareness. Given the protracted nature of D.’s conduct disordered behaviours, it is estimated that several years of programming is required in order for D. to be capable of managing himself responsibly in the community. Unfortunately the Court was not given the benefit as to what period of time was meant by Dr.

Chaze when he referenced “several years of programming”. While recognizing that rehabilitation is only one of the sentencing principles to be considered in an application of this nature, this type of information can be very important when assessing whether a sentence under the YCJA would be of sufficient length. Previous Record of the Young Person [ 33 ] The accused has a record which includes both property related offences and offences of violence.

August 29, 2012 - Sexual Assault - House Break/Enter theft - FTC Undertaking (curfew) Sentence – 2 days open custody + 1 day community supervision + 18 months supervised probation (concurrent on each)

October 21, 2013 - Sexual Assault - House Break/Enter theft - Indecent Act with Intent - FTC sentence Sentence – 3 months deferred custody + 2 years supervised probation (concurrent on each) December 9, 2013 - Uttering Threats Sentence – 30 days deferred custody (concurrent to other deferred custody order) February 24, 2014 - Theft Under - FTC sentence Sentence – 2 years supervised probation (concurrent on each) August 19, 2014 - FTC sentence x 3 (curfew, reside, possess) Sentence – on the first breach, 1 day court appearance; on the other two breaches, TIC noted at 28 days + 1 day court appearance (concurrent on each) November 5, 2014 - Theft Under - FTC sentence x 2 (ISSP, reside) Sentence – TIC noted at 50 days custody + 26 days (open) + 14 days (community supervision), (concurrent on each). [ 34 ] The accused has no previous robbery convictions.

But the offences for which he was convicted include periods of supervised probation and community supervision, and during those periods the accused had access to considerable professional and medical support. The accused was not a young man who, as described by his father, “fell through the cracks” but rather one who did not avail himself of the programming available. The Pre-Sentence Report concludes that the accused is a “high risk” to reoffend and is not a suitable candidate for community supervision.

Application of the Authorities and Conclusion [ 35 ] Applying the provisions of YCJA s. 72, given the age and maturity of the accused, the Crown has rebutted the presumption of diminished moral blameworthiness or culpability for this offender.

Further, it is clear that given the number of offences and the background of the accused, as well as the other sentencing principles set out in YCJA s. 3, a sentence under the youth regime would not be of sufficient length to hold the offender accountable. [ 36 ] In reaching this conclusion, I am mindful of “the very serious consequences of an adult sentence for the young person” (see A.O ., supra ) and the fact that Dr. Chaze’s report does not suggest a defined period of time needed for the accused’s rehabilitation.

I am sensitive as well to the challenges faced by the accused related to his ADHD and ODD diagnoses. It is unfortunate that the accused has not taken advantage of the specialized counselling and programming previously made available to him and that he has resisted taking the medication previously prescribed for him. Recent reports suggest some improvement in his attitude and behaviour.

Unless this continues and unless the accused makes a meaningful commitment to a treatment and therapy regime, he is at risk of continued criminal involvement. [ 37 ] The serious nature of the offences, committed by an armed accused against vulnerable retail outlets, requires a disposition longer than the three years available under the youth regime. I am satisfied that given the facts of these offences and the circumstances of this offender, a youth sentence would be insufficient to hold this accused accountable even taking into account the year he has already spent in custody.

A meaningful consequence for this offender, which would facilitate his rehabilitation and reintegration into society, requires that an adult sentence be imposed for these offences. “Original signed by” MARY KATE HARVIE P.J.