R. v. Z.T.S., 2012 MBCA 90

Citation: R. v. Z.T.S., 2012 MBCA 90 Date: 20120927 Docket: AY 11-30-07629 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes BETWEEN : HER MAJESTY THE QUEEN ) L. D. Labossière ) for the Appellant Respondent ) ) C. A. Vanderhooft ) for the Respondent - and - ) ) Appeal heard: ) May 23, 2012 S. (Z.

T.) ) ) Judgment delivered: (Young Person, Accused) Appellant ) September 27, 2012 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act , S.C. 2002, c. 1 (see s. 110(1) ). MacINNES J.A. 1 The appellant seeks leave to appeal, and if granted, appeals the sentencing judge’s order that an adult sentence be imposed upon the appellant, and the sentence itself. BACKGROUND 2 On December 11, 2009, sometime after 9:30 a.m., the appellant participated in the theft of a vehicle valued at approximately $32,000.

The appellant acted as lookout while the vehicle was stolen. Two other participants in the theft were one M.R. and the appellant’s cousin, J.S. At the time of the offence, the appellant was subject to a probation order and was wearing an electronic monitoring bracelet in compliance with the order. 3 Just before 3:00 p.m., with M.R. driving and the appellant a front seat passenger, the vehicle was observed by the police travelling at a high speed and proceeding through a red light.

The police attempted to stop the vehicle, but discontinued their efforts due to its speed within a residential neighbourhood. 4 The vehicle continued to travel at a high speed and failed to stop for stop signs at two intersections. Within the second intersection, it collided with another vehicle causing the death of the driver. At the time of impact within that intersection, the vehicle was being operated at 94 kilometres per hour. The appellant and the driver then ran from the scene. 5 The appellant was charged with four offences arising from the incident.

The Crown conceded there was no evidence that the appellant did anything to encourage, assist or aid in the driving behaviour of M.R. On February 7, 2011, the appellant pled guilty to one of the offences, namely, theft of a motor vehicle having a value exceeding $5,000. The other three charges were stayed. 6 On the date of the incident, the accused was one month short of his 18th birthday. The Crown gave notice, before the appellant’s plea, of its intention to apply for an adult sentence in respect of the appellant. The appellant opposed the application.

7 The hearing of the Crown’s application lasted three days. It consisted of viva voce evidence of three witnesses called bythe Crown and two witnesses called by the appellant, together with the filing of an agreed statement of facts in lieu of the evidence ofanother witness. As well, documentary evidence was filed pertaining to the appellant’s record as a young offender including custodialsentences, his conduct while in youth custody, the involvement of probation officers who had dealt with him, pre-sentence reports inrespect of past offences and the predicate offence, and a risk assessment report prepared by Dr.

K. Somers, a registered psychologist,who was one of the two witnesses who had testified on behalf of the appellant. 8 Following receipt of all of the evidence, counsel for the Crown and the appellant made lengthy submissions. The judgereserved his decision and three weeks thereafter granted the Crown’s application ordering that an adult sentence be imposed. 9 Immediately after the delivery of his decision, the Crown and defence made submissions as to sentence. The judgeimposed a sentence of three years’ incarceration less credit (a ratio of 2:1) for pre-sentence custody.

He thus imposed a sentence of oneday in custody plus three years’ supervised probation. It is from the aforementioned decisions that the appellant appeals. THE APPEAL 10 The grounds of appeal, which form the issues for the appeal, are three. The appellant asserts:

A) that the judge erred in his application of s. 72 of the Youth Criminal Justice Act (the YCJA) in imposing an adult sentence;

B) that the judge erred by failing to give sufficient reasons to explain why a youth sentence would not have been sufficient to holdthe appellant accountable for his offending behaviour; and

C) that the sentence imposed is demonstrably unfit or manifestly excessive, given the circumstances of the offence and of theappellant. STANDARD OF REVIEW 11 The appellant asserts that the applicable standards of review are as follows: Issue A: A finding under s. 72 of the YCJA is part of the sentence pursuant to s. 72(5) of that Act. As such, the court has jurisdiction tovary the sentence in accordance with s. 687(1) of the Criminal Code if it is shown there has been: (

a) error in principle; (

b) failure to consider a relevant factor; (

c) overemphasis of the appropriate facts; or (

d) the sentence is demonstrably unfit. Issue B: The standard of review with respect to insufficiency of reasons is the standard of adequacy. Issue C: The applicable standard of review is derived from s. 687(1) of the Criminal Code as set forth in respect of Issue A. 12 The Crown argues that the standard of review for Issues A and C is that of fitness of sentence. As regards Issue B, it saysthat the standard of review is as set out in R. v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 (at para. 25): … [W]hat is required are reasons sufficient to perform the functions reasons serve – to inform the parties of the basis of the verdict, toprovide public accountability and to permit meaningful appeal. The functional approach does not require more than will accomplishthese objectives. …. 13 I agree with both the appellant and the Crown that the standard of review calls for deference (see R. v. D.B., 2008 SCC 25 atpara. 10, [2008] 2 S.C.R. 3, and R. v. Williams (M.B.), 2008 ABCA 317 at para. 10, 437 A.R. 325).

Deference on sentencing has beendescribed in many cases, including R. v. Ruizfuentes (H.S.), 2010 MBCA 90, 258 Man.R. (2d) 220 (at para. 7): As was stated in R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 at para. 14, an appellate court must show “great deference” whenreviewing a sentencing decision. Upon the granting of leave, an appellate court can only interfere with a sentence in twocircumstances: when the sentence is “demonstrably unfit,” “demonstrably inadequate or excessive”, or “clearly unreasonable”, or whenit has been arrived at as a result of an error in principle.

An error in principle includes failing to consider a relevant factor, taking intoaccount an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor. See R. v.Shropshire (M.T.), (SCC), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; R. v. Rezaie (M.) (1996), (ON CA), 96 O.A.C. 268; 112 C.C.C. (3d) 97 (C.A.), and R. v.

Solowan (K.S.T.), 2008 SCC 62 , [2008] 3 S.C.R. 309; 381N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, at para. 16. “Unreasonableness” or “demonstrably unfit” in the sentencingcontext refers to an order falling outside the “acceptable range” of sentences under similar circumstances. See Shropshire, at para. 50,and R. v. G.W., (SCC), [1999] 3 S.C.R. 597; 247 N.R. 135; 181 Nfld. & P.E.I.R. 139; 550 A.P.R. 139, which isreferred to at para. 14 of L.M. 14 As regards Issue B, sufficiency of reasons, one must remember that sufficiency of reasons is not a stand-alone ground ofappeal (see R. v.

Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 29). 15 It must be combined with another ground of appeal. Here the appellant has done so, the issue being whether the judge gave

sufficient reasons to explain why a youth sentence would not have been sufficient to hold the appellant accountable for his offendingbehaviour. 16 The standard of review with respect to the sufficiency or insufficiency of reasons was explained in R. v. Oddleifson (J.N.),2010 MBCA 44, 255 Man.R. (2d) 68 (at para. 30): The standard of review with respect to the insufficiency of reasons is the standard of adequacy.

Reasons will not be inadequate if, whenread in their entire context, they fulfill the threefold purpose of informing the parties of the basis of the verdict, providing publicaccountability and permitting meaningful appeal (see R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3; 380 N.R. 47; 260B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51). 17 The appellant chose to argue Issue B first, followed by Issues A and C together. I will deal with the issues in the orderargued and thus turn to consider Issue B.

Issue B: Did the youth court judge err by failing to give sufficient reasons to explain why a youth sentence would not have beensufficient to hold the appellant accountable for his offending behaviour? 18 The appellant argues that, when deciding an application under s. 72 of the YCJA, it is specifically contemplated by s. 72(4)thereof, that the judge shall state the reasons for his decision. 19 The appellant agrees that reasons will not be inadequate if, when read in their entire context, they fulfill the threefold purposeof informing the parties of the basis of the verdict, providing public accountability and permitting meaningful appeal. 20 While conceding that there is no requirement that the judge explain every step in his reasoning process, the appellant submitsthat here the judge failed to articulate any reasoning process.

He acknowledges that the judge made reference to some of the evidence ofthe witnesses and to the relevant legislation including ss. 3, 38 and 72 of the YCJA, but says he failed to apply the facts to the law in amanner that informs the parties of the basis for his decision that a youth sentence would not hold the appellant accountable. 21 The Crown argues that the judge did not err.

It asserts that he agreed with the Crown’s submission that a youth sentencewould not hold the appellant accountable and concluded his decision by saying specifically that he was “satisfied that the sentencingprovisions of the YCJA allow for an insufficient length of time to hold this young person accountable for his offending behaviour” (atpara. 44). 22 The Crown says that the judge reached his conclusion after considering the background of the appellant and thecircumstances of the offence.

It argues that his reasons were adequate when considering the functional approach which appellate courtsemploy when reviewing the adequacy of reasons. ANALYSIS 23 The judge’s reasons for deciding to impose an adult sentence upon the appellant clearly set forth the relevant law and thetests required for determining an application to have a youth serve an adult sentence. Specifically, he set forth in full s. 3(1)(a), (

b) and(c), s. 38, s. 42(1), s. 42(2)(

k) and (n), s. 42(14) and s. 72(1) and (2) of the YCJA. I have done so, as well, as an Appendix to thesereasons. 24 Section 72(1) stipulates what the youth court judge shall consider, namely, the seriousness and circumstances of the offenceand the age, maturity, character, background and previous record of the young person, together with any other factors that the courtconsiders relevant.

Section 72(2) provides that the applicant (the Crown) bears the onus of satisfying the youth court judge as to whethera youth sentence or an adult sentence should be imposed. 25 The judge stated that, in applying the criteria set out in s. 72(1), he was required to consider the purpose and principles set outin ss. 3(1)(b)(ii) and 38 of the YCJA. 26 As well, he then stated that the relative lengths of youth and adult sentences are important in determining which sentencingregime should be applied. He noted that ss. 42(2)(

k) and (

n) and s. 42(14) limited the duration of the entire sentence which might beimposed in this case upon the appellant under the YCJA as being one of a maximum of two years inclusive of custody, communitysupervision and probation. 27 The judge referred to the appellant’s youth record, and commented correctly that the theft offence of December 11, 2009, towhich the appellant had pled guilty, was not his first offence. Indeed, as the evidence before him disclosed, the appellant had a recordfor auto-theft-related offences.

At the time of the offence, he was a designated Level 4 auto-theft offender, the most serious designationavailable under the Manitoba auto-theft initiative, and was required, pursuant to his extant probation order, to wear an electronicmonitoring bracelet. 28 In his reasons for judgment, the judge set forth the relevant facts gleaned from the evidence before him on the application.

In particular, he inferred that the circumstances of the offence were such that they placed the appellant as a willing passenger in thestolen vehicle, which was being operated on residential streets at a high speed and contrary to traffic control devices at several

intersections, resulting in the collision and death of the victim. 29 He reminded himself that the appellant was not responsible for the death arising out of the operation of the motor vehicle, and that the Crown conceded that there was no evidence that the appellant did anything to encourage, assist or aid in the driving behaviour of M.R. This was, as the appellant argued, an offence of theft of property simpliciter.

The judge referred to the fact that the pre-sentence reports before him, both from previous youth offences of the appellant and in respect of the predicate offence, described the immaturity and vulnerability of the appellant as did the report and evidence of Dr. Somers. 30 The judge made reference to the pre-sentence custody of the appellant and to the positions taken by the Crown and the appellant on the application for imposition of an adult sentence.

The Crown sought a sentence of three years’ incarceration less some credit for pre-sentence custody, plus three years of supervised probation with appropriate conditions, while the appellant sought credit for pre-sentence custody such that he be released from custody immediately. 31 The judge referred to the decision of Beard J. (as she then was), in R. v.

B.K.T.S. , 2009 MBQB 56 , 237 Man.R. (2d) 243 , in which she stated that “[t]he key criterion for determining whether to impose a youth or adult sentence is that of holding a young person accountable for his or her behaviour” (at para. 8), and he referred extensively to and relied upon the case of R. v. O. (A.); R. v.

M. (J.) , 2007 ONCA 144 , 84 O.R. (3d) 561 . 32 The judge then concluded that he was “satisfied that the sentencing provisions of the YCJA allow for an insufficient length of time to hold the appellant accountable for his offending behaviour” (at para. 44). 33 In my view, the reasons could clearly have been better, particularly in providing an analytical application of the evidence before the judge relative to the criteria which had to be considered by him under the provisions of the YCJA in respect of the motion before him.

However, it is my view that his reasons were not inadequate when one applies the functional approach to them. 34 All are agreed that the applicable law is that set forth in R.E.M. which makes clear that a functional context-specific approach to the adequacy of reasons in a criminal case is the approach to be taken in determining whether or not reasons are sufficient.

This approach requires not just a review of the reasons alone in determining whether they are sufficient, but that the reasons should be read as a whole and in the context of the evidence and the argument(s), written and oral, in light of the purpose or functions for which the reasons are delivered. 35 In R.E.M. , McLachlin C.J.C. wrote (at para. 17): .... The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded. And she wrote (at paras. 24-25): ….

The “path” taken by the judge must be clear from the reasons read in the context of the trial. But it is not necessary that the judge describe every landmark along the way. The functional approach … suggests that what is required are reasons sufficient to perform the functions reasons serve – to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal. …. 36 R.E.M. also gave direction to the role of appellate courts in assessing the sufficiency of reasons.

McLachlin C.J.C. referred to the court’s earlier decision in Sheppard , which stated (at para. 53 ): … [T]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself (para. 26). To justify appellate intervention, the Court makes clear, there must be a functional failing in the reasons.

More precisely, the reasons, read in the context of the evidentiary record and the live issues on which the trial focussed, must fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review. 37 And McLachlin C.J.C. stated (at para. 54): …. … [T]he appellate court’s point of departure should be a deferential stance based on the propositions that the trial judge is in the best position to determine matters of fact and is presumed to know the basic law. 38 While acknowledging, as I have, that the judge’s reasons clearly could have been better, there is no doubt in my mind that, when looked at in conjunction with the evidence and the submissions made, the judge’s decision was driven by (and his reasons sufficiently expressed) his concern that, in order to hold the appellant accountable and to best enable him to become rehabilitated and reintegrated into society, the YCJA did not allow for the imposition of a sentence of sufficient length for the appellant. 39 In my view, his reasons for decision in reaching that conclusion were not inadequate.

They were sufficient when reviewed pursuant to the functional approach mandated by R.E.M . I would therefore conclude that the judge did not err and would dismiss this ground of appeal. Issue A : Did the judge err in his application of s. 72 of the YCJA and when imposing an adult sentence?

Issue C : Was the sentence imposed demonstrably unfit and/or manifestly excessive, given the circumstances of the offence and of the offender? 40 The appellant acknowledges in his factum that, in making a determination under s. 72 of the YCJA , the judge must specifically incorporate the principles of ss. 3(1) ( b )(ii) and 38 of the YCJA into the s. 72 test and weigh and balance those factors when sentencing a young person. Thus, although on a s. 72 application the court is not deciding what sentence is appropriate, the court needs

to consider the same factors that it would on a sentencing hearing and determine whether a youth sentence will be sufficiently long to hold a young person accountable for his offending behaviour. 41 The appellant asserts, however, that while the judge reproduced the relevant legislation and the meaning of “accountability” as set forth in O. (A.) , he erred in his application of both in imposing an adult sentence. 42 He asserts that the judge did not expressly balance or weigh the factors enumerated in s. 72(1) nor expressly apply the principles set out in ss. 3 or 38 .

As well, he argues that, when considering the evidence through the lens of the relevant legislation, the imposition of an adult sentence could not reasonably be supported. 43 The appellant says that there was no express consideration of the numerous factors enunciated in s. 72(1), namely, the seriousness and circumstances of the offence, the age, maturity, character, background and previous record of the young person or any other factors that the court considered relevant. 44 The appellant submits that he pled guilty to theft of a motor vehicle and he was not a party to the driving behaviour of M.R.

He acknowledges that the judge noted that he was not a party to the death of the victim, but that the circumstances placed him as a willing passenger in a vehicle stolen by him and operated by M.R. at high rates of speed through several intersections striking and killing the victim.

The appellant asserts, therefore, that the judge overemphasized his responsibility for the offence of theft by attributing to him criminal liability for the actions of the driver. 45 The appellant argues that the YCJA requires the court to consider as a factor the maturity of the young person and the principle that accountability of adolescent offenders is limited in comparison to that of adults, but says that nowhere in the judge’s decision is the factor of maturity considered in light of the evidence mentioned. The appellant refers to the evidence of Dr. Somers and Mr.

Nikkel (a case manager who had dealings with the appellant at Agassiz Youth Centre) as to the appellant’s reduced maturity and the improvements which he had made in respect of his maturity while in custody. 46 As well, the appellant asserts that there was evidence before the judge that he was easily influenced by others, which ought to have resulted in a reduced responsibility upon the appellant in respect of the offence. 47 The appellant submits that, while the judge considered his previous youth record, he performed no analysis as to why the imposition of a maximum youth sentence for the offence in question could not have held him accountable as required by the YCJA , when such sentence is compared with the dispositions previously imposed in respect of his previous offences.

He says that a maximum youth sentence would have been a marked departure from any previous sentence and would have been sufficient to hold him accountable for his offending behaviour. 48 The appellant argues that the judge erred when imposing an adult sentence and, in particular, a three-year custodial sentence which was excessive and demonstrably unfit for the circumstances of the offence and of the appellant.

He says that an appropriate sentence would be a youth sentence wherein the appellant would be given credit for time served and would have had imposed upon him an order for the maximum length of youth probation, namely, two years. 49 The Crown argues that under s. 72(1) of the YCJA , the focus for determining whether or not to impose an adult sentence is upon accountability and length of sentence. The judge must determine whether a youth sentence imposed in accordance with the principles of ss. 3 and 38 will be of sufficient length to hold the offender accountable for his crimes.

Where it will be, a youth sentence is imposed; where it will not be, an adult sentence is imposed. 50 The Crown relies on the case of O. (A.) , which it describes as the leading case on the definition of accountability under the YCJA .

It asserts that, while accountability does not seek to express society’s condemnation of a particular act, the seriousness of the act and its impact on society nevertheless remain critical factors in assessing the appropriate sentence. 51 The Crown asserts that there is no requirement upon a youth court judge to be satisfied that the offender cannot be rehabilitated by a youth sentence before imposing an adult sentence.

Rather, the judge must consider all relevant factors in determining whether a youth sentence would be long enough to hold the offender accountable within the meaning of s. 72(1) of the YCJA . 52 The Crown says that the judge did not give too much weight to the seriousness of the offence, but that he referred correctly to the fact that the appellant was involved in the theft of a motor vehicle while he was wearing an ankle bracelet intended to stop him from that precise activity, that he remained in the vehicle with the driver during the course of a police chase and that following the collision which resulted in the death of an innocent third party, instead of remaining at the scene, he fled. 53 The Crown asserts that moral blameworthiness and the seriousness of the theft cannot be overestimated.

Though the appellant was not operating the vehicle once it was stolen, he was definitely instrumental in its theft despite all available efforts by the youth justice system to prevent his criminal reinvolvement, particularly, in respect of the theft of cars in Winnipeg.

In addition, at the time of the theft offence, he was in the company of his cousin, J.S., with whom, pursuant to the conditions of his probation, he was to have no contact. 54 As regards the appellant’s argument that a three-year custodial sentence for this theft of a motor vehicle was demonstrably unfit, the Crown says that the sentence in this case was in fact only one day of incarceration considering time spent in custody, and three years of probation as an adult. 55 The Crown argues that the issue is not really one concerning the fitness of the custodial sentence, but rather whether the sentence imposed was correctly an adult sentence instead of a youth sentence. 56 The Crown points out that, since the appellant was released from custody and placed upon three years’ supervised probation

in respect of this offence, he has become reinvolved, having been arrested on October 31, 2011, for breaching his probation and utteringthreats to three police officers.

On March 21, 2012, he was sentenced to a global sentence of six months for those offences. 57 The Crown says that, at the time the appellant was sentenced for the predicate offence, he had a recent and related record formotor-vehicle-related offences, that he demonstrated prior to the sentencing and since that he is a very high risk to reoffend, and that theimposition of an adult sentence including three years of supervised probation will allow the greatest potential for rehabilitation of theappellant and protection of the public. 58 The Crown argues that the judge committed no errors in imposing an adult sentence or in imposing the sentence which hedid.

It says that the sentence imposed was fit and proper and that the appeal should be dismissed. ANALYSIS 59 The Crown’s position before the judge was that he ought to impose a sentence of three years’ custody less the amount of timethat the accused had already served on a 1:1 basis, which would leave approximately 16 or 17 months of further incarceration followedby a period of three years of supervised probation. 60 Appellant’s counsel argued before the judge that the appellant should be entitled to credit for pre-sentence custody on a 2:1basis followed by supervised probation.

She argued forcefully for the appellant’s release from custody that day. Alternatively, sheargued equally forcefully that, if the judge determined that some additional custody were required, he should order that it be served in ayouth facility, not in an adult facility, by reason of the appellant’s lack of maturity and the fact that he was a follower, asserting that hisexposure to adult criminals would be contrary to his best interests in terms of rehabilitation and ultimate reintegration into society. 61 She also argued the issue of probation. She stated: Now, the issue with respect to probation is one that [Mr.

S.] has always agreed to. Under the YCJA, he would only be eligible for twoyears, but we know, if Your Honour is sentencing him as an adult, he’d be eligible for three years. So I’m not going to really take aposition with respect to length of probation. I think certainly three years is a, is an extremely long time, and I know Your Honour hasnoted in your decision, I read it very briefly, that you felt that the young offender needed some support while in the community.

So Ileave that part open to you, in terms of the duration of the probation. 62 Shortly after hearing sentence submissions, the judge gave his reasons for sentence. He accepted the submission of theappellant’s counsel that the appellant receive 2:1 credit in respect of his pre-sentence custody. Such credit exceeded the three years.

Thejudge then stated that “[t]he sentence will be three years less 36 months, for a formal one day, plus three years supervised probation.” He then enunciated the conditions of the probation order. 63 In my opinion, the evidence before, and the submissions made to the judge, provided ample evidence upon which he couldreach the conclusion he did, namely, that a youth sentence would not be of sufficient length to hold the appellant accountable for hisoffending behaviour, and thus to order that an adult sentence be imposed. 64 As I have previously stated, he enunciated the relevant and applicable provisions of the YCJA in considering this issue andfocussed upon the critical question of determining whether to impose a youth or adult sentence, namely, that of holding a young personaccountable for his behaviour.

Not only was he mindful of the relevant legislation, but he was also aware of and relied upon the decisionof B.K.T.S., which in turn relied upon the decision of O. (A.). 65 In O. (A.), the court wrote the following, which I endorse (at paras. 45-50): Thus, the question in this case is what is meant by the terms accountability, meaningful consequences, rehabilitation and reintegration. One obvious point is that meaningful consequences cannot be synonymous with rehabilitation and reintegration. Parliament has used thedifferent terms and is presumed to have intended different meanings. See for example, R. v.

Barnier, (SCC), [1980]1 S.C.R. 1124, [1980] S.C.J. No. 33, at pp. 1135-36 S.C.R.; Winko v. British Columbia (Forensic Psychiatric Institute), (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, at para. 134. In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by Lamer C.J.C.in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J.

No. 28, 105 C.C.C. (3d) 327, at paras. 80 and 81: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance,retribution incor-porates [sic] a principle of restraint; retribution requires the imposition of a just and appropriate punishment, andnothing more. . . . . .

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicialsentence properly reflect the moral blame-worthiness of that particular offender. The objective of denunciation mandates that a sentenceshould also communicate society’s condemnation of that particular offender’s conduct.

In short, a sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code ofvalues as enshrined within our substantive criminal law. (Underling in original, italics added) In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributivesentence, “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” (underlining omitted). We see no other rational way formeasuring accountability. The need to consider the normative character of an offender’s behaviour necessarily requires the court to consider societal values. Butwhat the court cannot do is add on to a youth sentence an element of general deterrence or denunciation. This concept of accountabilityis consistent with this court’s decision in R. v. W. (R.E.) (2006), (ON CA), 79 O.R. (3d) 1, [2006] O.J.

No. 265, 205C.C.C. (3d) 183 (C.A.), at paras. 40-42, where the court noted the focus of the YCJA on the best interests of the young person, and atpara. 43, in which it considered the exceptional circumstances in which a court can impose a custodial disposition under s. 39(1)(

d) of theAct: The scheme of the YCJA suggests that the exceptional case gateway can only be utilized in those very rare cases where the circumstancesof the crime are so extreme that anything less than custody would fail to reflect societal values. It seems to me that one example of anexceptional case is when the circumstances of the offence are shocking to the community. This view of the meaning of accountability is also consistent with the other principles of sentencing to which the youth court judge isdirected under s. 38, especially those set out in ss. 38(3)(

a) and (b): degree of participation, harm to the victim and whether the harm wasintentional or reasonably foreseeable. These principles speak to retribution as defined by Chief Justice Lamer in R. v. M. (C.A.), supra. Youth court judges have reached similar conclusions as to the meaning of accountability in s. 72. As Blacklock J. said in R. v. J.M.,[2004] O.J. No. 2796, 62 W.C.B. (2d) 404 (C.J.), at para. 26, the sentence must “be long enough to reflect the seriousness of the offencebefore the Court and the accused’s role in it”, even taking into account the offender’s increased dependence and decreased maturity.

Weread this as recognition of the need to take into account the normative character of the offender’s conduct. And in R. v.Ferriman, [2006] O.J. No. 3950, 71 W.C.B. (2d) 139 (S.C.J.), at para. 38, McCombs J. said that for a sentence to hold a young personaccountable it must achieve two objectives: It must be long enough to reflect the seriousness of the offence and the offender’s role in it, and it also must be long enough to providereasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society.

If the Crown provesthat a youth sentence would not be long enough to achieve these goals, then an adult sentence must be imposed. (Footnote omitted) I note that O. (A.) has also been followed by the Alberta Court of Appeal in R. v. Estacio, (D.I.), 2010 ABCA 69 at para. 12, 474 A.R.360. 66 As regards the offence in question, the maximum penalty under the Criminal Code for adult offenders is that of ten years’incarceration. The judge, in crafting the sentence, was required to take into account the circumstances of the offence and of theoffender.

The sentence imposed had to be proportional to the moral blameworthiness of the appellant and no more. 67 In this case, the appellant’s moral blameworthiness was high and his record, although a youth record, was egregious,particularly when one considers his response to court orders and the attempt of youth corrections personnel to assist him inrehabilitation.

His response was appalling and a significant concern to public safety. 68 When one considers these factors, it is my view that a sentence of three years in custody was high, but I cannot say that it wasunfit. 69 Moreover, in the overall context, the reality of the sentence was that the sentencing judge gave heed to the principal concernof the appellant’s counsel that the appellant not be required to serve additional custodial time and her secondary concern that, if soordered, it not be in an adult institution.

Practically speaking, the sentence permitted the immediate release of the appellant fromcustody subject to an order for supervised probation, with conditions, for a period of three years. 70 It is clear to me that what drove the decision of whether to impose a youth or adult sentence was the limitation on theduration of sentence under the YCJA (two years) including custodial, community supervision and probation, alone or together, ascompared with the judge’s conclusion, justified on the evidence, that the accountability and best prospects for rehabilitation andreintegration of the appellant required something greater than two years, hence, an adult sentence. 71 What appeared unanimous in the evidence presented to the judge, including that of Dr.

Somer, was the need for support forand control over the appellant when released into the community, including keeping him away from the negative influence of his peers,in particular, members of his family. 72 The evidence was that he had been making some strides while in custody and that he was at something of a crossroads as towhich way he would go. The evidence was also clear that he was immature and a follower, but the expressed expectation was that, withthe passage of time as he grew older and more mature, he could overcome those shortcomings.

Given the need to hold him accountablefor his conduct while at the same time giving him the best opportunity for rehabilitation and ultimate successful reintegration intosociety, the best possible result for the appellant was to provide appropriate support for him upon his release from the structures ofcustody.

This could only be done by way of a lengthy supervised probation order with conditions. 73 When one considers the prognosis that, with appropriate support in the community, the appellant, as a result of the aging andexpected maturation process, could become rehabilitated and reintegrated into society, it is difficult to conclude that the sentenceimposed was unfit. Indeed, it was, in my view, a fit and appropriate sentence in all of the circumstances. 74 The appellant’s criminal reinvolvement following the imposition of the sentence under appeal is indeed disappointing.

However, it underscores the fact that the process of rehabilitating this accused is something that will take time, if it is possible at all, andit bespeaks the wisdom of the sentence imposed rather than of a shorter sentence which would have more quickly left the accused to hisown devices in the community.

75 There was no error in the imposition of an adult sentence or in the sentence itself. 76 At the conclusion of the hearing of the appeal, leave was granted and the matter placed under reserve. Consistent with the foregoing reasons, I would dismiss the appeal. ___________________________ J.A. I agree: __________________________ J.A. I agree: __________________________ J.A. A P P E N D I X The Youth Criminal Justice Act S.C. 2002, c. 1 DECLARATION OF PRINCIPLE Policy for Canada with respect to young person 3.

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

a) the youth criminal justice system is intended to (

i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public; (

b) the criminal justice system for young persons must be separate from that of adults and 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 ….

. . . . .

PART 4 SENTENCING Purpose and Principles Purpose 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 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; and (

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

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

(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. . . . . . YOUTH SENTENCES . . . . . Considerations as to youth sentence 42.

(1) A youth justice court shall, before imposing a youth sentence, consider any recommendations submitted under

section 41, any pre-sentence report, any representations made by the parties to the proceedings or their counsel or agents and by the parents of the young person, and any other relevant information before the court.

(2) When a youth justice court finds a young person of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of

section 231 of the Criminal Code , the court shall impose a sanction set out in paragraph (

q) or subparagraph ( r )(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate: . . . . . (

k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years;

. . . . . (

n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period – which is one half as long as the first – be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order …. . . . . .

(14) No youth sentence, other than an order made under paragraph (2)( j ), ( n ), ( o ), (

q) or ( r ), shall continue in force for more than two years. If the youth sentence comprises more than one sanction imposed at the same time in respect of the same offence, the combined duration of the sanctions shall not exceed two years, unless the sentence includes a sanction under paragraph (2)( j ), ( n ), ( o ), (

q) or (

r) that exceeds two years. . . . . . ADULT SENTENCE AND ELECTION Test – adult sentences 72.

(1) In making its decision on an application heard in accordance with

section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and (

a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and (

b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant.