HIS MAJESTY THE KING - v. -, 2023 SKKB 56

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 56 Date: 20 23 03 13 Docket: CRM-YT-00001-2020 Judicial Centre: Yorkton BETWEEN: HIS MAJESTY THE KING - and - I.K.

PUBLICATION RESTRICTION: Pursuant to ss. 110(1) and 111(1) of the Youth Criminal Justice Act , no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as having been dealt with under this Act , or may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person under this Act , until after the appeal period has expired.

CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendums released March 23, 2023, April 12, 2023 and April 18, 2023. (A copy of the corrigendums is appended to this corrected judgment.) Counsel: Darren Grindle for the Crown Deanna P. Harris for I.K. REASONS FOR ORAL DECISION DATED MARCH 7, 2023 SENTENCING LAYH J. March 13, 2023 BACKGROUND [ 1 ] I.K., now 21 years old, has been incarcerated since March 23, 2019, now approaching four years.

He awaits sentencing respecting two matters: 1) his guilty plea for aggravated assault entered in Provincial Court on January 7, 2020 respecting an incident on March 23, 2019; and 2) his conviction for manslaughter on July 25, 2022 respecting a homicide committed on September 1, 2018 when he was one day shy of his 17 th birthday. [ 2 ] Because at the time of the offences I.K. was a “young person” as defined by the Youth Criminal Justice Act , SC 2002, c 1 [ YCJ Act ], at issue is whether I.K. should be sentenced as a youth or as an adult, and once that determination has been made, I must impose an appropriate sentence. [ 3 ] Given I.K.’s involvement in the judicial process, the court has received several reports, chronologically from latest to earliest as: (

a) September 14, 2022: Letter from Heather Scriver (two pages); (

b) September 12, 2022: Letter from Nicole Lubiens (six pages);

(

c) September 2, 2022: Report of Elizabeth McGrath (14 pages); (

d) July 2022: Pre-Sentence Report of Lexi Burman (nine pages); (

e) March 27, 2020: Report of Elizabeth McGrath and Nicole Faller (11 pages); (

f) February 2020: Pre-Sentence Report of Brook Edel (16 pages); and (

g) January 2019: Pre-Sentence Report of Ami Dzuba (14 pages). [ 4 ] The court has also received the helpful briefs of law prepared by defence and Crown counsel (for which the court is appreciative). STATUTORY PROVISIONS [ 5 ] Whether or not I.K. should be sentenced as an adult is a matter of applying the provisions of the YCJ Act to his personal circumstances and the circumstances of the offences. Section 72(1) obligates the court to impose an adult sentence, but only if it is satisfied of two conditions. It reads as follows: 72

(1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that (

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

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

section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour. [ 6 ] The “presumption” described in ss. 72(1)(

a) is expressed in the general principles applicable to the entire YCJ Act , where, in ss. 3(1) (b), one finds the presumption written as follows: 3

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

b) the criminal justice system for young person must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: …. [ 7 ] So, before the court imposes an adult sentence on I.K., ss. 72(1)(

a) requires the Crown to rebut the presumption of I.K.’s diminished moral blameworthiness or culpability. Subsection 72(1)(

b) obliges the Crown to satisfy another condition. The Crown must establish that a sentence “ would not be of sufficient length to hold the young person accountable for his or her offending behaviour” if he were sentenced as a young person under the principles set out in ss. 3(1)(b)(ii) and s. 38. Accordingly, in determining whether an adult or youth sentence is appropriate one must be familiar with the general principles of the youth justice system under s. 3(1) as applied to the entirety of the YCJ Act , as well as s. 38 , which speaks specifically to youth sentencing. Unless the Crown can satisfy the court of the two conditions under s. 72(1)(

a) and (b), the court is obligated under ss. 72(1.1) to impose a youth sentence. [ 8 ] Section 3(1) has four subsections, each delineating a particular principle: public protection; diminished moral blameworthiness of youth; principles of imposition of sanctions; and special considerations that apply to proceedings involving youth. Section 3(1) reads as follows (with my emphasis on the presumption of diminished moral blameworthiness and on ss. 3(1)(b)(ii), both of which the Crown must satisfy would result in an insufficient sentence if I.K. were to be sentenced as a young person): 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 (

d) special considerations apply in respect of proceedings against young persons and, in particular, (

i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. [Emphasis added] [ 9 ] As previously explained, ss. 72(1)(

b) also requires the court to be satisfied that the sentencing principles applicable to youth sentencing as set out in s. 38 “would not be of sufficient length to hold the young person accountable for his or her offending behaviour.” In other words, the Crown must establish that the principles set out in s. 38, although appropriate for a youth sentence, would result in a sentence of too short duration to hold the young person accountable. [ 10 ]

Section 38 reads as follows: 38

(1) The purpose of sentencing under

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

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

section 3 and the following principles: (

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

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

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

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

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

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; (e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if (

i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1), (ii) the young person will reasonably be able to comply with the condition, and (iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; 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. [ 11 ] As can be seen, sentencing principles in Canada, whether for adults or youths are principally statutorily created. BRIEF DESCRIPTION OF DIFFERENCE IN ADULT AND YOUTH SENTENCE [ 12 ] As Justice Tholl wrote in R v R.D.F. , 2019 SKCA 112 at para 27 , 382 CCC (3d) 1 [ R.D.F. ], the “differences between the sentences imposed if an offender is sentenced as a youth or sentenced as an adult are stark.” Those differences include but are not limited to the statutorily provided length of the sentence. [ 13 ] Section 42(2) (

o) of the YCJ Act sets a maximum sentence of three years for manslaughter, which could ultimately be straight custody or a combination of custody and supervision in the community. For aggravated assault, ss. 42(2) (

n) sets a maximum sentence of two years. Pursuant to ss. 42(15), if a young person is sentenced for manslaughter as well as other offences at the same time, the maximum sentence remains at three years. If I.K. were sentenced as a young person, no minimum sentence applies and his sentence would be subject to the maximum of three years. [ 14 ] If sentenced as an adult, manslaughter attracts a variety of possible sentences, including a suspended sentence, fine alone, fine and probation, prison, prison and probation, an intermittent sentence and as much as a life sentence.

The Saskatchewan Court of Appeal in R v Keepness, 2010 SKCA 69 , 255 CCC (3d) 457 has set an adult sentencing for manslaughter in the range of 4 to 12 years. [ 15 ] Crown counsel, in his thorough brief, pointed out other differences that distinguish youth sentences from adult sentences, including parole eligibility, the facility the offender will serve the sentence, the use of pre-sentence detention and the availability of Intensive Rehabilitative Custody and Supervision [IRCS] program. [ 16 ] Respecting parole eligibility, if I.K. were sentenced as an adult, and given a usual range of incarceration, he would be required to participate in a correctional plan under ss. 15.1(1) of the Corrections and Conditional Release Act , SC 1992, c 20 [ CCRA ] and would be eligible for parole prior to the expiry of his sentence.

On the other hand, if I.K. were sentenced as a young person, he is not eligible for parole. [ 17 ] Respecting placement, if a young person receives a custodial sentence as an adult, s. 76 of the YCJ Act requires the court to order the type of facility where the sentence will be served. The sentence, or a portion of the sentence could be served in a youth custody facility, a provincial correctional facility for adults, or, if the sentence is for two years or more, a penitentiary. However, if the offender is still under 18 (which I.K. is not), the sentence must be served in a youth custody facility.

Pursuant to ss. 76(9) of the YCJ Act , the young person cannot remain in a youth custody facility after reaching 20 years of age unless the court “is satisfied that remaining in the youth custody facility would be in the best interests of the young person and would not jeopardize the safety of others.” [ 18 ] If I.K. were sentenced as a young person, and since he is now over the age of 20, there is a presumption of his transfer to a provincial correctional facility or to a federal penitentiary. However, the Crown anticipates that the IRCS Director would seek to keep I.K. in the provincial system.

If I.K. were transferred to a penitentiary, the administration of his sentence would include normal rules for parole eligibility. Pursuant to ss. 120(1) of the CCRA , he would be eligible for parole after serving one-third of his sentence. [ 19 ] Respecting pre-sentence detention, ss. 38(3) (

d) of the YCJ Act requires the youth sentencing judge to consider “the time spent in detention by the young person as a result of the offence.” There is no strict formula for crediting time in pre-sentence detention. The Crown agrees that this discretion allows a judge to grant no credit as a tool for guarding against the sentence becoming insufficient to hold the youth accountable.

Determining whether to allow credit engages several factors including the length of the detention, the reasons for any delay in reaching trial or sentencing and the youth’s need for further custody or community service to meet the purposes of the YCJ Act : R v J.E.O. , 2013 SKCA 82 , [2013] 12 WWR 691. By comparison, in an adult sentence credit for time served is limited to 1:1 ratio unless the circumstances justify the maximum available of 1:1.5. [ 20 ] IRCS is available to I.K. under ss. 42(7) of the YCJ Act only if he is sentenced as a young person.

His participation in IRCS is contingent on the provincial director’s determination of availability and appropriateness of the program: 42(7) A youth justice court may make an intensive rehabilitative custody and supervision order under paragraph 2(

r) in respect of a young person only if…

(

d) the provincial director has determined that an intensive rehabilitative custody and supervision program is available and that the young person’s participation in the program is appropriate. [ 21 ] I.K. meets the condition precedent under ss. 42(7) (d). Heather Scriver, Assistant Deputy Minister, advised this Court that IRCS is available and that there is an appropriate treatment plan if the court finds a young person’s sentence is appropriate.

I.K.’S OFFENCES [ 22 ] The circumstances of I.K.’s involvement in the death of 25 year old Colin Focht on September 1, 2018 are set out in my earlier decision in R v I.K., 2022 SKQB 175 [ I.K. 2022 ]. I.K. attempted to plead guilty to manslaughter, but the Crown rejected his offer seeking a conviction for second-degree murder. In I.K. 2022 I found that I.K. was not the main actor in Mr. Focht’s death. He did not lure Mr. Focht into the alley and did not have a weapon during the assault leading to Mr. Focht’s death.

I did not find the requisite intention to convict I.K. of second-degree murder. [ 23 ] Seven months after Mr. Focht’s murder, but before I.K. was arrested for that offence, he assaulted Lemont Shingoose during the early hours of March 23, 2019. Mr. Shingoose and I.K. were unknown to each other. Both were intoxicated. Apparent from a video someone took of the incident, I.K. met Mr. Shingoose on a sidewalk and confronted him, hitting Mr. Shingoose’s hat off his head and striking him across the face with a knife. Despite extensive medical interventions, Mr. Shingoose lost vision in his right eye.

He may have to have his eye removed. PROPOSED SENTENCES [ 24 ] The Crown seeks an adult sentence of seven to nine years in custody for manslaughter and three to four years, consecutive, for the aggravated assault, against which would be credited time served as 1:1.5 credit. [ 25 ] I.K. has been incarcerated at the Paul Dojack Youth Centre for nearly four years. He proposes an additional three years of sentence, consisting of two and one-half years in custody followed by six months of community supervision to monitor and support his reintegration into the community.

He proposes a two-year sentence for the aggravated conviction, to be served concurrently. He requests that he be ordered to participate in an IRCS sentence which would additionally promote his rehabilitation and reintegration in ways that are not available through an adult sentence. If I.K. were granted the requested sentence, he would be without parole privileges and would effectively serve a custodial sentence of six and one-half years. ISSUES [ 26 ] Given these statutory provisions, the issues I must resolve to decide whether I.K. should be sentenced as a youth or adult are as follows: (

a) Under ss. 72(2) of the YCJ Act , what onus of proof must the Crown meet before the court orders an adult sentence? (

b) Has the Crown rebutted the presumption of diminished moral blameworthiness and culpability? (

c) Has the Crown satisfied the court that a youth sentence would not be of sufficient length to hold I.K. accountable? ANALYSIS (

a) Onus of Proof under ss. 72(1) of the YCJ Act [ 27 ] In R v L.M. , 2017 SKQB 336 , Justice Schwann ( ex officio ) addressed the question of onus under ss. 72(1), writing: 111 The s. 72 onus has been described varyingly as "not a heavy onus or burden" ( R v Turcotte , 2008 SKQB 478 at para 9 , 328 Sask R 89 ), "satisfaction after careful consideration by the court of all the relevant factors" ( R v L. (B.) , 2013 MBQB 89 at para 36 , 292 Man R (2d) 51 [ L.(B. )]), "a serious evaluating analysis requiring significant care in line with the impact of a young offender received an adult sentence" ( R v A. (B.J.) , 2016 MBQB 207 at para 20 ), and "a persuasive burden balancing the relevant factors under s. 72(1) and considering the purpose and principles of the YCJA set out in ss. 3(1) (

b) and 38 " ( R v M. (C.) , 2014 ABQB 701 at para 9 , 601 AR 354 ). [ 28 ] I agree with Crown counsel’s submission (not opposed by defence counsel) that the Crown’s burden is neither proof beyond a reasonable doubt nor one of balance of probabilities but rather the court must consider all principles of youth sentences and, finding them inappropriate to address the circumstances of the offence and the offender, determine that an adult sentence is appropriate. (

b) Has the Crown rebutted the presumption of diminished moral blameworthiness and culpability? (

i) Statements of General Principle [ 29 ] Certain initial principled statements clarify and focus the above question whether the Crown has rebutted that I.K., as a young person at the time of the offences, had the presumed diminished moral blameworthiness and culpability of a young person. [ 30 ] First, the Crown must satisfy the court of both of the two independent conditions set out in ss. 72(1)(

a) and (

b) of the YCJ Act. If the Crown fails to rebut the presumption of diminished moral blameworthiness under subsection (

a) the matter endswithout engaging subsection (

b) and the young person must be sentenced as a youth. [31] Second, as Justice Tholl explained in R.D.F., given that the Crown must rebut the presumption of diminishedblameworthiness, a trial judge would ordinarily first canvas the Crown’s position why the presumption should be rebutted. If theCrown’s position is untenable – does not “satisfy” the court – the matter is concluded. If the Crown’s position is prima facie tenable, thecourt must consider the position of defence counsel. In the final analysis it remains the Crown’s obligation to satisfy the court that thepresumption, in the instance of I.K., has been rebutted. [32] Third, in order to complete the analysis under ss. 71(1)(

a) of the YCJ Act – to decide whether the presumptionshould continue to apply and result in a youth sentence – the court must be able to articulate the scope and extent of the diminution ofblameworthiness and culpability that the court must ordinarily afford a young person.

What are the hallmarks of blameworthiness andculpability, and how do they differ between young persons and adults? [33] Fourth, the court must make factual findings based on the evidence that is relevant to the expected measure ofblameworthiness and culpability of a young person and decide whether the young person should have the benefit of the statutorypresumption.

Subsection 72(3) of the YCJ Act specifically directs the court to look to any pre-sentence report as part of that evidentiaryrecord. [34] Fifth, ss. 72(4) of the YCJ Act requires a court to state reasons if it makes an order under ss. 72(1) of the YCJ Actto sentence the young person as an adult. (Seemingly, ss. 72(4) of the YCJ Act is less rigorous in its requirement for reasons if the courtrejects the Crown’s position and sentences the offender as a young person.) (ii) A Judicial

Interpretation of Diminished Moral Blameworthiness [35] The court must have a clear understanding of the permissible degree of diminished moral blameworthiness topresume in favour of a young person. Justice Tholl in R.D.F. canvassed and summarized the applicable Canadian case law. His

summaryis germane and helpful: [33] …This prong of s. 72(1) has been addressed by appellate courts across the country. In M.W. [R v M.W., 2017 ONCA 22, 134 OR(3d) 1], Epstein J.A. stated the following about this issue: [97] In my view, the focus must necessarily be on the issue of maturity. The Presumption assumes that all young people start from aposition of lesser maturity, moral sophistication and capacity for independent judgment than adults. Bala and Anand explain at p. 4: Adolescents, and even more so children, lack a fully developed adult sense of moral judgment.

Adolescents also lack the intellectualcapacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self-awareness, andthey may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why theycommitted a crime most frequently respond: “I don’t know.” This seemingly impertinent answer may simply reflect a lack of forethoughtor self-awareness, or non-responsiveness due to embarrassment and the shame of hindsight, or it may signal a more significant cognitiveissue.

Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, arerelatively easy to apprehend. [Footnotes omitted.] [98] In order to rebut the Presumption the Crown must satisfy the court that, at the time of the offence, the evidence supports afinding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adultsuch that an adult sentence and adult principles of sentencing should apply to him or her. (Emphasis added) [34] The British Columbia Court of Appeal in Chol [R v Chol, 2018 BCCA 179] (at paras 59–61), approved of the above commentsfrom paragraph 98 of M.W., adding that the assessment is a case-dependent, fact-dependent determination that requires a sentencingjudge to examine the circumstances of the offender and the circumstances of the offence. [35] The Manitoba Court of Appeal in McClements [R v McClements, 2017 MBCA 104, 356 CCC (3d) 79] (at paras 39–40, and inJ.M.O. [R v JMO, 2017 MBCA 59, 353 CCC (3d) 141] at paras 62–63) determined the s. 72(1)(

a) analysis requires the Crown to provethe young person had the moral capacity of an adult at the time of the offence.

The Court further described the circumstances of theyoung person and the circumstances of the offence as being at the heart of the inquiry into whether adult-like judgment was exercised. [36] In making a determination under s. 72(1)(a), a youth court judge must be cautious to weigh all of the various factors relevant tothis issue and not place undue emphasis on any single factor, including the actions of the offender on the day of the offence (R v J.F.R.,2016 ABCA 340 at para 26, 46 Alta LR (6th) 341). [37] The focus of the first prong of the s. 72(1) application requires the court to be cognizant that young persons are presumed tohave a lower level of maturity, moral sophistication and capacity for independent judgment.

Impulsivity, immaturity and a youngperson’s inability to appreciate the consequences of his or her actions are at the root of the presumption. In order for the Crown to rebutthis presumption, it must establish the offender demonstrated the level of maturity, moral sophistication and capacity for independentjudgment of an adult.

Evidence of the circumstances of the offender (age, maturity, intelligence, mental health issues, moral capacity,background, Gladue [R v Gladue, (SCC), [1999] 1 SCR 688] factors, previous criminal record and any other relevantfactors) and the circumstances of the offence (actions taken in relation to the offence, planning, sophistication, role played, motivationand any other relevant factors) are at the core of this determination. [Emphasis in original] [36] Apparent from the above

summary, I must start with the presumption that I.K., as a young person at the time of

his offences, had less maturity, moral sophistication, and capacity for independent judgment than an adult, that he lacked the intellectualcapacity to fully appreciate the consequences of his act, and that he may have lacked empathy for his victims. [37] Justice Tholl’s direction that the court must consider Gladue (R v Gladue, (SCC), [1999] 1SCR 688 [Gladue]) factors is consistent with similar directions found twice in the YCJ Act, once in ss. 3(1)(c)(iv) and again at ss.38(2)(d) (as previously quoted).

Additionally, s. 50 of the YCJ Act states that Criminal Code, RSC 1985, c C-46 provisions that apply toadult sentencing should not apply to youth sentencing, excepting certain principles, including the sentencing principle under ss. 718(2)(e)of the Criminal Code.

That provision requires the court to consider appropriate sentences “with particular attention to the circumstancesof Aboriginal offenders.” These provisions from the YCJ Act and the Criminal Code identify the importance of the court recognizing thatspecial considerations must be given to Indigenous offenders. (iii) The Evidence the Crown Relies Upon to Rebut the Presumption [38] The question remains: what evidence can the Crown cite to show that the presumptions of diminished moralblameworthiness and culpability do not apply to I.K.? [39] Relevant evidence must reveal the circumstances of the young person and the circumstances of the offence asbeing at the heart of the inquiry into whether adult-like judgment was exercised: R v McClements, 2017 MBCA 104, 356 CCC (3d) 79.A judge must cautiously weigh all the various relevant facts and not place undue emphasis on any single circumstance, including theoffender’s action on the day of the offence: (R v J.F.R., 2016 ABCA 340 at para 26, 46 Alta LR (6th) 341). [40] One of the factors that the Crown leans on to rebut the presumption is the impact of I.K.’s crimes upon thevictims.

The Crown correctly points out that s. 50 of the YCJ Act specifically states that among the adult sentencing principles that areequally applicable to young persons is consideration of victim impact statements as required by ss. 722(1) of the Criminal Code: “Whendetermining the sentence…the court shall consider any statement of a victim…describing the physical or emotional harm…suffered bythe victim.” [41] The Crown points out that Mr. Focht was only 23 years old at the time of his murder. Mr. Focht’s mother diedwithout knowing what happened to her son because Mr.

Ironstand, the principal perpetrator, hid the body. The Crown suggests that theattack against Mr. Focht was not random and involved planning with Mr. Ironstand. I.K. led the assault on Mr. Focht by hiding in a bushawaiting Mr. Focht’s arrival at the rendezvous into which he was lured. I.K. ignored the obvioussigns that Mr. Focht was severely injured. I.K. did not phone 911 for medical help for Mr. Focht (even if it would have been too late tosave Mr. Focht). [42] Respecting the aggravated assault, the victim, Mr. Shingoose, was 27 years old and unknown to I.K. Mr.Shingoose has lost the sight in his eye.

His injuries have prevented him from obtaining employment. I.K.’s senseless attack has left Mr.Shingoose with deformities that have permanently marred his physical appearance. [43] The Crown points out that as a mark of I.K.’s maturity he historically has associated with older peers. Hismaturity was illustrated by his decision to leave the Native Syndicate gang when he was 16 years old. I.K. was not of tender years. Heturned 18 while in custody only 6 months after the aggravated assault.

I.K.’s intellectual skills are in the average range, as ElizabethMcGrath cited in her report. [44] Respecting Gladue factors, the Crown states that although his Indigenous background “undoubtedly shed lighton how I.K. came to be before the courts in the past” nothing suggests “something other than an adult’s level of moral blameworthiness.” [45] I.K.’s criminal record prior to his arrest in March 2019 is extensive, with 25 convictions from 2015 to 2019,including several convictions for “failing to comply” under s. 137 of the YCJ Act.

Others are serious: uttering threats, identity fraud, possession of a weapon, theft of a motor vehicle, break and enter and commit assault, aggravated assault, disguise withintent and possession of a firearm contrary to a prohibition order. (iv) The Evidence Defence Relies Upon to Maintain the Presumption [46] I.K. denies that the Crown can rebut the presumption and looks to the pre-sentence reports, psychologicalassessment and favourable IRCS assessment which canvass I.K.’s personal circumstances both at the time of the offences and as he hasmatured in custody over the last four years awaiting trial and sentencing. [47] I.K. is a member of the Keeseekoose First Nation where he lived for the first two years of his life before hisfamily moved to Yorkton, Saskatchewan.

He is the oldest of four children. As a child he witnessed alcohol abuse and domestic violencebetween his parents. He reports that when he was young his father punched and kicked him. [48] I.K. struggled at school. Although he found learning difficult, he was never assessed for any underlyingconditions. He was expelled from the Good Spirit School Division for threatening a teacher when he was 12 years old, in grade 7. He didnot attend school from that time until his arrest in March 2019.

After being recruited into a First Nation gang, he started hanging out withmuch older and violent individuals, and getting involved in criminal activities within the community. Although the extent of his use ofdrugs and alcohol is somewhat unclear, he reported his first use of alcohol when he was 12. He has used other drugs: marihuana, but alsometh, and has experimented with cocaine and other substances. [49] Several members of his family have died by suicide, substance abuse or violent crime.

He has inflicted self-harmin the past and has had suicidal thoughts. [50] During his first custodial sentence in 2016, I.K. was diagnosed with Attention Deficit Hyperactivity Disorder

[ADHD]. He began taking medication to treat ADHD but has now discontinued. [ 51 ] I.K. became a father when he was only 17 years old. His mother is raising his son. (

v) The Court’s Ruling: The Presumption Has Not Been Rebutted [ 52 ] I.K.’s attacks on Mr. Focht and Mr. Shingoose were inexcusably senseless, resulting in death in one instance and permanent disability in the other. Neither crime gave I.K. any gain or advantage. They were random, spontaneous acts showing a lack of reason and no appreciation of consequences. [ 53 ] Respecting Mr. Focht’s death, I.K. joined others, all seemingly under the influence of Mr. Ironstand, who quickly laid out a plan to lure Mr. Focht into a fight.

I.K., just like others who participated in setting up the planned altercation, went along with Mr. Ironstand. No one knew that Mr. Ironstand was armed with a knife and, instead of beating Mr. Focht, would mortally stab him. I.K.’s involvement, just like the involvement of other passengers in the truck that night, some passive and some sufficiently active to warrant criminal conviction, was naïve and mindless. [ 54 ] Similarly, the assault against Mr. Shingoose was an unprovoked attack occasioned only because he randomly met Mr. Shingoose. One might expect that the intoxication of both Mr.

Shingoose and I.K. played some role in the incident in the early hours of March 2019. I.K. had no hope of gain and he had made no plan to attack Mr. Shingoose. His crime shows a shocking lack of maturity, insight and appreciation of possible consequences. That I.K. was carrying a knife might be indicative of a planned contingency to attack someone or, on the other hand, equally indicative that he might need to defend himself.

He had a history of gang involvement and peer group association that would make carrying a knife unsurprising. [ 55 ] Moving from the circumstances of the offences to I.K.’s personal circumstances, the court was particularly alarmed to learn that I.K. was expelled from school at the age of 12 for threatening his teacher and that he received no further education until he was incarcerated. When he was expelled from school, both his parents worked. He was essentially abandoned. Even a well- adjusted 12 year old boy would struggle under these circumstances. He was left to his own devices.

Soon he joined a gang and was under the influence, not of caring teachers and coaches, but of older, crime-prone peers. At the age of 12, when I.K. was on the cusp of developing physical, emotional and intellectual skills necessary to become a successful adult, he was left without the guidance that a 12 year old boy in Yorkton should have been receiving, indeed had a right to receive. When I.K. should have been developing a sense of empathy to relate to other persons’ feelings he was hardened by membership in a gang.

There he learned the life lessons of a gang member: how to gain a sense of belonging, how to earn an income outside the economy and how to gain stature among his peers. [ 56 ] If one considers the ordinary goals and benefits of a child’s education during the formative years from grade 7 to grade 12, which were all denied to I.K., where would he develop logical and abstract thinking and an ability to analyse information and form sound judgment?

To say that I.K.’s development was not impaired by being removed from school during these formative years is to say that attending school is of little consequence in the development of a mature adult. I am unprepared to make this assumption in I.K.’s instance. [ 57 ] Only after his criminal engagement led to him being sent to the Paul Dojack Centre, did I.K. learn that he had another disadvantage: a diagnosis of ADHD. In Ms. McGrath’s psychological assessment of September 2, 2022, she recounts her earlier assessment of I.K., written in her report of November 16, 2016, when I.K. was 15 years old. Ms.

McGrath describes that I.K.’s mother had long noticed certain of her son’s disabilities. Ms. McGrath wrote: Lisa [I.K.’s mother] reported that [I.K.] from a young age found it hard to sit still (was hyperactive) and pay attention and listen, got side- tracked when doing homework, and would forget things as he got older. At age 5, she took him to a doctor and it was noted that he was too young at the time to look at ADHD.

Lisa explained that [I.K.] was not doing well in school. [ 58 ] I.K. began taking medication to treat ADHD while in the Paul Dojack Centre but discontinued once released in 2017 because he could not find a new doctor. He was not taking medication when he committed the two current offences. However, once re-incarcerated at the Paul Dojack Centre on March 23, 2019, I.K. again began his medication. He continued his medication under the treatment of Dr. Williams. At one point, as Ms.

McGrath reports, I.K. “said that at his then current age he thought he should be learning to handle things himself, so he requested that he start to lower the dosage of his medication.” At the time of her report, I.K. had been off medication for two years. She describes how I.K. described his experience with ADHD and his medication treatment: He [ I.K. ] noted that when he first stopped the medication he was somewhat impulsive (not thinking) in his comments which caused him some trouble in the unit. Now [I.K.] sees himself as thinking things through and that he can concentrate in school.

The only medication he takes is a multivitamin and also Melatonin (for sleep). [ 59 ] Notably, I.K. understood that his own conduct could be “impulsive” when he was without medication. The court understands that impulsivity often leads to poor decision-making. Furthermore, if impulsivity can be linked to an underlying mental health issue of a young person who, through no fault of his own, was unable to continue his medication, one might ask several questions. Did I.K.’s untreated ADHD contribute to his lack of insight in the rather spontaneous, unplanned, unsophisticated attacks on Mr. Focht and Mr. Shingoose?

Did I.K. receive the needed support to treat ADHD when he was released from the Paul Dojack Centre? [ 60 ] As Justice Tholl noted in R.D.F. , “mental health issues” are a factor the court must consider when determining whether the Crown has rebutted the presumption in ss. 72(1) (

a) of the YCJ Act . I am comfortable taking judicial notice that ADHD is a mental health issue. It affects a person’s ability to focus and to control their behaviour. It can explain hyperactivity and impulsivity. These conclusions lead the court to conclude that the Crown has not rebutted the presumption that I.K. should be afforded the statutory benefit of being a youth and having a diminished level of moral blameworthiness.

[ 61 ] I also look to Gladue factors. I agree with the statement in R.D.F. that Gladue factors are not only statutorily significant when imposing a sentence, but equally important in determining whether an Indigenous youth should be sentenced as a young person or an adult. To consider I.K.’s circumstances without appreciating that he is Indigenous would be to overlook the experience of many members of the Keeseekoose First Nation and, particularly, the K. family. It has experienced violence, self-harm, alcohol and drug problems and criminal involvement.

Would, for example, I.K. have become a member of an Indigenous gang if he had not been Indigenous? Would he have received a measure of intervention to gain access to education and mental health care if he were non-Indigenous? [ 62 ] For the reasons cited and explained above, I.K.’s personal circumstances and his involvement in the offences for which he is being sentenced do not satisfy the court that the Crown has rebutted the presumption that, as a young person, I.K. had diminished moral blameworthiness and culpability. (

c) Has the Crown satisfied ss. 71(1) (

b) of the YCJ Act ? [ 63 ] The Crown, having not satisfied the condition of ss. 72(1) (

a) of the YCJ Act , means the court need not canvas the Crown’s obligation to satisfy the condition under ss. 72(1) (

b) of the YCJ Act – whether a youth sentence imposed according to the purpose and principles set out in ss. 3(1) (b)(ii) and s. 38 of the YCJ Act would be insufficient length to hold the young person accountable for his offending behaviour. However, for completeness, the court finds that I.K.’s proposed youth sentence of three additional years in addition to the four years he has already served is of sufficient length to hold him accountable. Consequently, the Crown has not satisfied the court of the conditions under ss. 72(1) (

b) of the YCJ Act . [ 64 ] Without parole privileges and without “time served” credit, which would be available to I.K. if he were sentenced as an adult, he would serve a total actual period of incarceration of seven years, less any time allowed for community supervision. If he were sentenced as an adult, he would ordinarily receive one and one-half credit for time served, or effectively six years to the date of sentencing. Under an adult sentence he would also be eligible for parole, often after serving one-third of his sentence. Under the proposed youth sentence, he would have no parole eligibility.

Given the Crown’s submission on the low range of its recommendations, I.K. would be sentenced to seven years for manslaughter and three years consecutively for aggravated assault, for a total of ten years. With credit for time served, I.K. would have already served six of those years if he were sentenced as an adult.

With the likelihood of parole, I see little difference between I.K.’s proposal and the Crown’s proposal. [ 65 ] In addition to the sufficiency of the length of sentence, the court also notes that I.K.’s proposal incorporates the principles of youth sentencing under ss. 38(2)(ii) and (iii) of the YCJ Act , which requires a sentence to “be the one that is most likely to rehabilitate the young person and reintegrate him or her into society…and…promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.” In this regard, the court is aware that I.K. will not be able to access the IRCS program if he receives an adult sentence.

The program combines intensive rehabilitative programming with close supervision intended to provide young offenders with resources to deal with their underlying issues and prepare them to reintegrate into the community. The program aims to promote adaptive behavioral change.

Subsection 42(7) of the YCJ Act offers, as part of a sentence, an order under the IRCS program when a young person has been convicted of a serious violent offence, is suffering from a mental illness, a plan of treatment and intensive supervision has been developed for the young person and there are reasonable grounds to believe that the plan might reduce the risk of the young person committing a serious violent offence. [ 66 ] The Provincial Director of the Ministry of Corrections and Policing must determine whether an IRCS plan is available and if the youth’s participation in the program is appropriate.

Then a letter will be provided to the court indicating the suitability of the IRCS program for the young offender. Ms. McGrath, a registered psychologist, has provided such a letter dated September 2, 2022. After a detailed three-page description of the program, Ms. McGrath concluded as follows: RECOMMENDATION: Based on the information gathered for this report, I am prepared to recommend that Isaiah be considered for IRCS – B sentence in the Youth Criminal Justice System.

IRCS – B would support various areas of developmental growth and stability that he needs over the next critical years in his development that might not otherwise be funded and therefore not provided. It would also provide for extra services/support in the community. [ 67 ] Given that Ms.

McGrath has recommended I.K.’s participation in the IRCS Program, that it is only available if I.K. receives a youth sentence, and given that I.K. has proposed an effective period of incarceration of seven years, I find that the Crown has not satisfied the court that a longer sentence justifies departing from the principles of youth sentencing under s. 72(1) (

b) of the YCJ Act . CONCLUSION [ 68 ] I.K. will you please stand. [ 69 ] I sentence you to the maximum sentence of three years for manslaughter and, as s. 42(15) of the YCJ Act states, if sentenced for other offences at the same time, in this instance aggravated assault, the sentence cannot exceed three years. As permitted by s. 42(2) (

r) of the YCJ Act , the sentence shall be served as 33 months in custody in a youth facility, followed by 3 months under conditional supervision in the community. [ 70 ] I order that you participate in the IRCS program. [ 71 ] Pursuant to s. 51(1) of the YCJ Act , I order that you are prohibited from possessing any firearm, cross-box,

prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of ten years from today’s date. [ 72 ] Finally, pursuant to s. 487.051 of the Criminal Code , I authorize the taking of samples of bodily substances from I.K. as reasonably required for the purpose of forensic DNA analysis. J. D.H. LAYH REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 56 Date: 2023 03 23 Docket: CRM-YT-00001-2020 Judicial Centre: Yorkton BETWEEN: HIS MAJESTY THE KING - and - I.K.

PUBLICATION RESTRICTION: Pursuant to ss. 110(1) and 111(1) of the Youth Criminal Justice Act , no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as having been dealt with under this Act , or may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person under this Act , until after the appeal period has expired. Counsel: Darren Grindle for the Crown Deanna P. Harris for I.K. March 23, 2023 LAYH J.

CORRIGENDUM to Reasons for Oral Decision dated March 7, 2023 SENTENCING

of March 13, 2023 (2023 SKKB 56) [ 73 ] In para. 27 Justice Schwann should have “( ex officio )” behind her name, not “(as she then was)”. [ 74 ] In the redacted version in paras. 57 and 58 the accused’s name should be redacted in the quotes. J. D.H. LAYH KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 56 Date: 2023 04 12 Docket: CRM-YT-00001-2020 Judicial Centre: Yorkton BETWEEN: HIS MAJESTY THE KING - and - I.K.

PUBLICATION RESTRICTION: Pursuant to ss. 110(1) and 111(1) of the Youth Criminal Justice Act , no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as having been dealt with under this Act , or may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person under this Act , until after the appeal period has expired. Counsel: Darren Grindle for the Crown Deanna P. Harris for I.K. April 12, 2023 LAYH J.

CORRIGENDUM to Reasons for Oral Decision dated March 7, 2023 SENTENCING of March 13, 2023 (2023 SKKB 56) [ 75 ] The date at the top of the page on the previous corrigendum should read “2023 03 23”. J. D.H. LAYH KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 56 Date: 2023 04 18 Docket: CRM-YT-00001-2020 Judicial Centre: Yorkton BETWEEN: HIS MAJESTY THE KING - and - I.K.

PUBLICATION RESTRICTION: Pursuant to ss. 110(1) and 111(1) of the Youth Criminal Justice Act , no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as having been dealt with under this Act , or may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person under this Act , until after the appeal period has expired. Counsel: Darren Grindle for the Crown Deanna P. Harris for I.K. April 18, 2023 LAYH J.

CORRIGENDUM to Reasons for Oral Decision dated March 7, 2023 SENTENCING of March 13, 2023 (2023 SKKB 56)

[ 76 ] Paragraph 69 should read as follows: I sentence you to the maximum sentence of three years for manslaughter and, as s. 42(15) of the YCJ Act states, if sentenced for other offences at the same time, in this instance aggravated assault, the sentence cannot exceed three years. As permitted by s. 42(2) (

r) of the YCJ Act , the sentence shall be served as 33 months in custody in a youth facility, followed by 3 months under conditional supervision in the community. J. D.H. LAYH