R. v. M.N.P., 2014 MBCA 2

Citation: R. v. M.N.P., 2014 MBCA 2 Date: 20140108 Docket: AY 12-30-07894 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) S. Zaman and ) J. Kostiuk Respondent ) for the Appellant ) - and - ) A. Y. Kotler ) for the Respondent P. (M.

N.) ) ) Appeal heard: (Young Person) Appellant ) November 8, 2013 ) ) Judgment delivered: ) January 8, 2014 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) ). MONNIN J.A. [ 1 ] This is an appeal by a young person following a conviction for second degree murder and four robberies.

An adult sentence of life without parole eligibility for seven years was imposed for the murder conviction plus two years for each robbery to be served consecutively, but concurrent to the sentence imposed for the murder conviction.

The young person appeals the conviction for the murder, the adult sentence imposed for that murder, as well as the sentences imposed for the robberies. [ 2 ] The young person appeals the murder conviction on the following grounds: that the trial judge erred in allowing into evidence a videotaped, audio-taped recording of a telephone call he made while in custody in which he admitted his involvement in the killing; that the trial judge further erred by admitting into evidence, for the truth of its content, a videotaped statement made by a co- accused that contradicted that co-accused’s viva voce evidence; and finally, that the trial judge made significant misapprehensions of facts and unreasonable inferences that materially affected the outcome of the trial in that it led the trial judge to convict him as a party to second degree murder, either under the provisions of s. 21(1) or s. 21(2) of the Criminal Code (the Code ), as opposed to convicting him for the lesser offence of manslaughter. [ 3 ] As to the sentence appeal, the young person alleges that the trial judge erred in imposing an adult sentence for the murder conviction and that he ignored the totality principle with respect to the sentences imposed for the robberies. [ 4 ] I am satisfied that there is no merit to the allegation that the trial judge erred when he allowed into evidence a portion of the young person’s videotaped and audio-taped telephone conversation with an unknown party while being detained.

For the purpose of the completeness of these reasons, I set out the passage that the young person alleges should not have been entered into evidence: [Young Person]: I wonder if I’ll beat it. (On phone): Whose [ sic ] this? Oh, who’s all there? Aw, shit. Were you there? Oh. It’s packed. I went out to get a beer and now, look. I don’t know. They’re just trying to -- like five robberies and a murder charge, like. (Laughs). Yeah. It sucks, man. Yeah. Huh? It was up here. It’s packed. Yeah, we just killed a man. I’m at the Public Safety Building. Yeah. No, man. I got my mom and my lawyer. I don’t know.

It looks like I’m going down for a robbery. ….

[emphasis added] [5] The above-noted conversation was recorded while the young person was in custody and in the presence of hismother. That conversation was recorded following the young person being charged and cautioned and advised of his rights to counselpursuant to the Canadian Charter of Rights and Freedoms (the Charter). The trial judge had also found that the young person had beenadvised in a language that complied with s. 146 of the Youth Criminal Justice Act (the Act), and that he understood his rights as set forthin subs. 146(2)(

b) of the Act. In addition, he was also advised that he was being audio and video recorded while in the interview room. [6] Notwithstanding the fact that the recording represents only one side of a conversation, the trial judge committed noerror in finding that there was no ambiguity in its meaning and that he could rely upon it either as a standalone admission or beingcorroborative of other evidence. [7] I now go on to deal with the admission of a videotaped and audio-taped statement made by a co-accused, RandalBourassa. [8] Bourassa was called as a witness by the Crown.

He resiled from the statement he had earlier provided to the police. The facts surrounding his evidence and the Crown’s application seeking an order admitting his prior inconsistent statement for the truthof its contents are set out in the trial judge’s reasons (2012 MBQB 70 at paras. 2-5): In testifying before me, Mr. Bourassa admitted his involvement, along with others, in a series of robberies and in the death of [thevictim], all of which occurred on the evening of July 10, 2009. Mr.

Bourassa is presently a sentenced prisoner at Stony MountainPenitentiary, having pled guilty to manslaughter respecting [the victim’s] death. Mr. Bourassa also gave evidence that [the youngperson] was not involved in either the death of [the victim] or the robberies with which he, [the young person], was charged. That is notwhat Mr. Bourassa said when he gave a video and audio-recorded statement to members of the Winnipeg Police Service (“the WPS”) onJuly 11, 2009. In light of the nature of the evidence given by Mr.

Bourassa while testifying before me, counsel for the Crown successfully applied forpermission to cross-examine Mr. Bourassa as an adverse witness pursuant to the provisions of s. 9(1) of the Manitoba Evidence Act,C.C.S.M., c. E-150. Upon completion of that cross-examination, counsel for [the young person] also cross-examined Mr. Bourassa. Counsel for the Crown also applied to have the video and audio-recorded statement given by Mr. Bourassa to the police on July 11, 2009admitted in evidence to prove the truth of its contents insofar as Mr.

Bourassa’s implicating [the young person] in the robberies and thedeath of [the victim] is concerned. The issue for me to decide is whether the recorded statement, which is hearsay in nature, given by Mr.

Bourassa is to be admitted inevidence as a prior inconsistent statement to prove the truth of its contents. [9] In arriving at his decision to allow the statement into evidence, the trial judge properly instructed himself with respectto the two elements that the Crown needed to prove to have the statement admitted; namely, necessity and reliability. [10] With respect to necessity, he stated (at paras. 9-10): On the issue of necessity, the law is clear that where a witness recants an earlier statement, necessity is based on the unavailability of thetestimony, not the unavailability of the witness. See R. v.

Devine (R.A.), 2008 SCC 36 , [2008] 2 S.C.R. 283; 376 N.R. 297;433 A.R. 380; 429 W.A.C. 380; 2008 SCC 36. That proposition was also articulated by the Supreme Court of Canada its earlier decisionin R. v. F.J.U., (SCC), [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321. In the case at bar, Mr. Bourassa, while testifying before me, recanted from the earlier statement given by him to the police insofar as [theyoung person’s] involvement in the robberies and the death of [the victim] were concerned.

I therefore have little difficulty in findingthat [the] Crown has met the threshold criterion of proving that admission of the prior inconsistent statement is necessary. [11] In dealing with the issue of reliability, prior to making his findings, the trial judge set out what had to be demonstrated(at paras. 18-19): R. v.

Woodard (J.) (2009), 2009 MBCA 42 , 240 Man.R. (2d) 24; 456 W.A.C. 24; 2009 MBCA 42, is a case where a swornstatement given by a witness to the police prior to trial was admitted in proof of the truth of its contents where the witness at trial notonly “... had trouble remembering parts of what had transpired” but also testified in a manner that was inconsistent with the statement she

had given to the police. Chartier, J.A., writing for a unanimous court, provided a very useful

summary of the applicable law at ¶46 where he said: 46 In a series of decisions, Charron, J., set out the principles and considerations to be taken into account when a trial judge conducts an inquiry following a request to admit hearsay evidence using the principled approach ( see R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787 ; R. v. Couture , 2007 SCC 28 , [2007] 2 S.C.R. 517 ; R. v. Devine , 2008 SCC 36 , [2008] 2 S.C.R. 283 , and Blackman [2008 SCC 37 , [2008] 2 S.C.R. 298 ]). They are as follows:

(1) The first matter to determine before embarking on a hearsay admissibility inquiry is whether the proposed evidence is hearsay. An out-of-court statement will be hearsay when: (1) it is adduced to prove the truth of its contents (the purpose); and (2) there is limited or no opportunity for a contemporaneous cross- examination of the declarant (the concern) ( see Khelawon , at paras. 56-58 ).

(2) Once the proposed evidence is identified as hearsay, it is presumptively inadmissible, unless it falls under a traditional common law exception to the hearsay rule or is admitted under the principled approach to the hearsay rule ( see Khelawon , at paras. 56, 59 , and Couture , at para. 78 ).

(3) Whether the hearsay meets the necessity and threshold reliability criteria under the principled approach will be determined on a voir dire. The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities ( see Khelawon , at para. 47 ).

(4) If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge’s function (as gatekeeper) is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact ( see Khelawon , at paras. 2- 3 ).

(5) The criterion of necessity is founded on society’s interest in getting at the truth and is intended to ensure that the evidence presented to the court be in the best available form, usually by calling the maker of the statement as a witness. If that is not possible, it may be that if the evidence is to be adduced at all, it can only be presented in its hearsay form ( see Khelawon , at para. 49 , and Couture , at para. 79 ).

(6) The criterion of threshold reliability is about ensuring the integrity of the trial process and is usually met: (1) by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about; or (2) by showing that, in the circumstances, the ultimate trier of fact will be in a position to sufficiently assess their worth. The two ways of demonstrating threshold reliability are not mutually exclusive. In cases where the declarant is available to be cross-examined, the focus will necessarily be on the latter way ( see Khelawon , at paras. 49, 61-63 , Couture , at para. 80 , Devine , at para. 23 , and Blackman , at para. 35 ).

(7) A distinction must be made between “ultimate reliability” and “threshold reliability”. Only the latter is inquired into on the admissibility voir dire. The failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process. Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence ( see Khelawon , at paras. 3, 50 ).

(8) Relevant factors to be considered cannot invariably be categorized as relating either to threshold or ultimate reliability. Rather, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature of the statement and the available means, if any, of overcoming them ( see Khelawon , at para. 55 ).

(9) Although there are no hard and fast rules about the manner of conducting the hearsay admissibility inquiry, there are good reasons to look first at whether there are adequate substitutes that give the trier of fact a sufficient basis to assess the statement’s truth and accuracy. Whenever the threshold reliability requirement is met on this basis, there is no need to inquire further into the likely truth of the statement ( see Couture , at paras. 87-88 ).

(10) Even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is

outweighed by its prejudicial effect ( see Khelawon , at para. 49 ). [ 12 ] He then went on as follows (at para. 27): Because of the motive to lie and the other reasons advanced by counsel for [the young person] for asserting that the threshold criterion of reliability has not been met by the Crown in this case, I must look to ascertain whether there is any external reliable evidence that tends to confirm, in a meaningful way, the reliability of the material aspects of the out-of-court statement. [ 13 ] And he concluded (at para. 33): As I have already stated, it is not my function at this stage to assess the truth of what Mr.

Bourassa said in his statement. Rather, I am to assess whether the threshold test consisting of the criteria of necessity and reliability has been met by the Crown. Earlier in these reasons, I found that the criterion of necessity had been met. I am now able to find that the second criterion of the threshold test, namely, reliability has been met. My reasons for so finding may be summarized as follows: 1. although the statement was not sworn, Mr.

Bourassa was well aware of the solemnity of the occasion; 2. the statement was recorded by audio and video technology, which will enable me as the trier of fact to observe Mr. Bourassa’s demeanor; 3. Mr. Bourassa was made available for cross-examination respecting why he was not adopting the statement given to the police; 4. there was no suggestion of collusion as between Mr. Bourassa and others as to what he would say to the police; 5. there was no suggestion that Mr.

Bourassa’s version of what had occurred during the course of the robberies and the events leading to the death of [the victim] as set forth in his statement to the police had been tainted or influenced by others; and 6. there is reliable external evidence that confirms what Mr. Bourassa said in his statement to the police. [ 14 ] The young person takes issue with the trial judge’s findings of reliability including his reliance on the telephone conversation contained in his recorded interview, the content of which I have previously dealt with in these reasons.

Furthermore, he alleges that the trial judge misapprehended the evidence relating to an item of clothing identified as belonging to the young person and that this clouded the trial judge’s findings of reliability. [ 15 ] Considering that the standard of review in dealing with admissibility of evidence is one of deference, provided that it is informed by correct principles of law, as is the case here, and considering that, at that stage of the process the trial judge only had to be concerned with threshold reliability, there is, in my view, no basis for appellate intervention with respect to the trial judge’s decision to allow Bourassa’s previous inconsistent statement into evidence for the proof of its contents.

The trial judge properly instructed himself on the law and applied the law to the facts as he found them to be, which was well within his purview to do. His ruling dealing with the issue of reliability was reasonable and supported by the evidence.

I have not been persuaded that any error was committed and I would dismiss this ground of appeal. [ 16 ] This brings me to the last ground of appeal dealing with conviction; namely, the trial judge’s finding that the young person was a party to the offence of second degree murder and the trial judge’s finding that the young person knew, or ought to have known, that either he or someone in the marauding group of attackers had a knife and did use it, or was prepared to use it, in the commission of the robberies. [ 17 ] The relevant sections of the Code provide : Parties to offence

21(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it.

Common intention 21(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and anyone of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that thecommission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [18] The young person argues that there was insufficient evidence to find that he was involved with the same group ofindividuals in all of the robberies, that he knew that someone had a knife in their possession and that the sequence of robberies wassufficient to prove that prior to the victim being stabbed another individual had also been stabbed in one of the previous robberies.

Theyoung person argues that there was insufficient evidence of common intent to justify the trial judge’s finding of second degree murderand that he should only have been convicted of manslaughter. [19] In dealing with this issue, the Crown concedes that the trial judge made two errors in setting out his reasons forconviction, one of fact and one of law, but argues that neither such error materially affected the trial judge’s ultimate conclusion. [20] Dealing firstly with the factual error, the Crown agrees that the young person is correct when he argues that the trialjudge misattributed a jacket worn by one of the individuals in the robbery of Mr.

Durocher to him, but further argues that in order forsuch an error to justify the overturning of a conviction it must play an essential

part in the reasoning leading to the conviction beingappealed and that this was not the case here. See R. v. MacLeod (J.M.) et al., 2013 MBCA 48 at para. 14, 294 Man.R. (2d) 90. [21] I agree with the Crown’s submission that the error as to the ownership of the jacket did not play any role in the trialjudge’s decision to convict.

He did not rely on the jacket’s ownership to establish the young person’s participation in the robberies, butinstead relied on other evidence to do so; namely, the young person’s admission in his telephone conversation, his possession of stolenproperty from one of the victims, the co-accused’s statement, and finally, the DNA evidence linking the young person to the deceasedand one of the robberies. [22] The trial judge’s second error was in his dealing with the issue of mens rea and the manner in which he applied the testfor constructive murder.

In his oral reasons, he stated: In my view, if [the young person] did not actually know all of these things, he should have known them. The evidence satisfies me thatany reasonable person in the same circumstances as [the young person] would know that one of his cohorts who was a party to theagreement to rob anybody and everybody on the evening of July 10, 2009 would probably murder someone in the course of carrying outthe original agreement. [23] This statement is contrary to what the Supreme Court stated in R. v. Martineau, (SCC), [1990] 2 S.C.R.633 at 645.

However, as with the factual error dealt with in the previous paragraphs, the Crown argues, and rightly so, thatnotwithstanding what the trial judge said, he did not base his conviction on constructive murder. [24] In dealing with the evidence before him and the requirements of proving a common intention of the attackers, includingthe young person, the trial judge said the following: With respect to the count of murder, I am not satisfied by the evidence I have heard, seen and read that [the young person] was theindividual who stabbed [the victim] in the heart, thereby causing his death.

That said, the evidence does satisfy me beyond a reasonabledoubt that [the young person] was involved with the other members of the group of four in a joint criminal enterprise. The law is clearthat where one person who has agreed with one or more others to do something unlawful such as robbing one or more individuals, thatperson may be found guilty of another crime committed by one or more of the others in carrying out the original agreement. In otherwords, when two or more persons join together in a criminal venture, each may be responsible for what one or more of the others does inpursuing the original goal.

Here, I’m satisfied that there was an agreement, although loosely formed, amongst [the young person] and the other three peopleinvolved to assist one another in robbing anybody and everybody they ran into on the evening of July the 10th. The plan was formembers of the group to ride around on their bicycles and to confront and accost anyone and everyone who happened to be unfortunateenough to be on the street that evening. The agreement, in my view, is established by the very conduct of the parties in question.

The evidence before me also satisfied me that one of the parties to the agreement to rob, but not [the young person], caused the death of[the victim] by stabbing him in the heart with a knife. The person who stabbed [the victim] was the principal in the offence of murder of[the victim]. Although [the young person] and the parties to the agreement to rob did not set out to commit murder, a murder did takeplace in the course of carrying out the original agreement to rob. [The young person] can be convicted of the murder of [the victim] as aparty pursuant to the common purpose

section of the Criminal Code, namely section 21(2). Before that conviction can occur, the Crown must also prove that [the young person] knew or should have know that one of the membersof the group involved in the agreement to rob would probably murder someone in carrying out the original agreement. Here, theevidence adduced proves beyond a reasonable doubt and permits me to conclude that [the young person] knew that someone in the grouphad a knife and was prepared to use it. He also had to know that a knife was actually used when Mr. Durocher was stabbed during thecourse of being robbed.

The evidence satisfies me that [the young person] actually knew, especially after Mr.

Durocher was stabbed androbbed, that it was likely that the member of the group who was armed with the knife, in carrying out the plan to rob anybody andeverybody the group happened to come across, would intentionally kill someone or intentionally cause someone bodily harm that themember with the knife knew would likely kill that someone and did not care whether that someone died or not. [25] He then concluded as follows: Taken as a whole, the evidence proves beyond a reasonable doubt the following: One, that [the young person] was present during the course of all of the events that occurred on the evening of July 10, 2009,commencing with the Clarke robbery and ending with the Kelly robbery; Two, that with the exception of the robbery of … Simard, [the young person] participated either as a principal or as a party in each of therobberies with which he was, is charged; And three, that as a party to the offence, either under section 21(1) or section 21(2) of the Criminal Code, [the young person] participatedin the assault on [the victim] that caused his death and did thereby commit the offence of second degree murder.

In the result, I acquit [the young person] of count 4 in the indictment which pertains to the robbery of … Simard. I convict [the youngperson] of counts 2, 3, 5 and 6 in the indictment which pertain to the robberies of … Clarke, … Durocher, … Sandeson and … Kelly. Ialso convict [the young person] of count 1, being the second degree murder of [the victim]. [26] In R. v.

Jackson, (SCC), [1993] 4 S.C.R. 573, in dealing with the very issue that is raised by this case,the Supreme Court stated (at p. 583): In my view, the trial judge correctly instructed the jury on the potential liability of Davy for murder under s. 21(2).

He told the jury thatif Davy formed a common intention with Jackson to rob the deceased and Jackson committed murder in the course of carrying out thatrobbery and foresaw that the murder was a probable consequence of carrying out the robbery or common purpose, then Davy would beguilty of second degree murder. [27] Based on the evidence and the law, the trial judge was entitled to come to the conclusion that he did and, as a result, didnot commit a reversible error.

There was evidence that, over a very short period of time, the young person and the three other attackersmade their way north along Aikins Street, robbing those they came across. There was evidence that prior to the victim being stabbedand killed, another victim had previously been stabbed.

From that point onwards, it was abundantly evident to everyone in the attackinggroup that one of them had a knife in his possession, that such person was prepared to use it in robbing another victim and wouldintentionally kill someone or intentionally cause someone bodily harm and did not care whether someone died in the process. The trialjudge did not commit a palpable and overriding error in coming to the conclusion that the young person was therefore guilty of seconddegree murder and, accordingly, I would also dismiss this ground of appeal.

[28] As to his sentence appeal, the young person argues that the trial judge erred in firstly, imposing an adult sentence withrespect to the murder conviction and, secondly, that he further erred in not sufficiently considering the principle of totality in imposingthe sentences he did for the four robberies. [29] With respect to the imposition of the adult sentence, the young person argues that the trial judge failed to properlyconsider his dysfunctional upbringing, which informed his gang membership, his history of substance abuse and his criminal record or, inother words, failed to follow the Gladue requirements as set out in R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688; and R. v.Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. [30] In so far as the sentence for the robberies are concerned, the young person argues that in making the sentencesconsecutive, the trial judge failed to give adequate weight to the principle of totality. [31] In arriving at his sentencing decision, the trial judge provided extensive, cogent and detailed reasons justifying thesentence he decided to impose. He canvassed the law thoroughly, including the Gladue requirements.

Without quoting in detail fromthose reasons, I set out the paragraphs which generally explain the trial judge’s reasoning (2012 MBQB 263 at paras. 27, 40, 43-44, 73,75-78): The circumstances of the offences are distressing, involving a high degree of violence and in the murder of [the victim], gratuitous,unmitigated brutality. In convicting [the young person], I described him and his cohorts as urban pirates who entered into an agreementin the early part of the evening of July 10, 2009 to roam the streets of the North End of Winnipeg and to rob anyone and everyone theywould happen to run into on their bicycles.

Without getting into the specific details, I note that [the young person] has been convicted on numerous occasions for failing to complywith court orders, for possessing a controlled substance for the purpose of trafficking, for trafficking in a controlled substance, for flightfrom a peace officer, for possession of property of a value in excess of $5,000 obtained by crime, for assault causing bodily harm, forpossessing break-in instruments, for mischief under $5,000, and for break and enter of a dwelling house with intent.

The PSR [pre-sentence report] indicates that because of his lengthy history of involvement in the criminal justice system, from 2007 untilhis arrest in July of 2009 following the murder of [the victim], [the young person] was supervised by Serious Offender Services and wasin receipt of the “highest level of support and supervision available for youth in Manitoba” (p. 7).

The PSR also states that [the youngperson] has demonstrated a pattern of non-compliance with court orders as demonstrated by the deferred custody order, suspensions andnumerous charges for failure to comply. [The young person] is a person of Aboriginal heritage. It would appear from the Gladue assessment I received that to this point in time,[the young person’s] connection to his Aboriginal heritage and culture has been tenuous to say the least. As I have already noted, [the young person] was just five months short of his 18th birthday when he committed the offences for which hemust now be sentenced.

He has a lengthy history of involvement in the justice system. Many, if not all, of the resources availablepursuant to the Act [Youth Criminal Justice Act] have been employed in an attempt to rehabilitate [the young person]. Despite that,nothing seems to have worked. He has been assessed as a very high risk to become re-involved.

I agree with and adopt what was said by the Ontario Court of Appeal in A.O. [2007 ONCA 144, 84 O.R. (3d) 561] where it said that fora sentence to hold a young person accountable in the sense of being meaningful, the sentence must reflect “the moral culpability of theoffender, having regard to the intentional risk- taking of the offender, the consequential harm caused by the offender, and the normativecharacter of the offender's conduct”. In other words, what is required is a retributive sentence.

While I have given full consideration to the interests of [the young person], I have also considered the interests of society. In my view,societal interests, which include respect for the justice system, cannot be attended to by anything less than the imposition of an adultsentence upon [the young person] for each of the five offences for which he has been convicted.

I am satisfied, having considered all of the circumstances here, including the fact that [the young person] is a person of Aboriginalheritage and having considered the legislation and what I perceive to be the relevant case law, that the imposition of a youth sentence forsecond degree murder would not be of sufficient length to hold [the young person] accountable for his offending behaviour and that anadult sentence is therefore required. A lifetime of supervision following a period of incarceration will, in my opinion, serve both [theyoung person] and society well.

For the same reasons, I have concluded that a youth sentence for the robberies would not suffice to hold [the young person] accountable.

[32] In imposing the adult sentence that he did, the trial judge applied correct principles and imposed a sentence thatreflected the abhorrent and unacceptable nature of the offence. A youth sentence, with a maximum of four years of custody and threeyears of community supervision, would not have corresponded to the need for accountability in the circumstances. The adult sentenceimposed was appropriate and should not be interfered with.

I would not grant leave to appeal, and if I had, I would have dismissed theappeal. [33] As to the consecutive sentences imposed for the robberies, the trial judge provided little analysis that would suggest heconsidered what has become known as the totality principle, by failing to take one last look to ensure that the totality of the sentence hewas imposing was proportional to the gravity of the offences, but without being excessive for the particular offender as an individual. InR. v.

Draper (T.G.), 2010 MBCA 35, 251 Man.R. (2d) 267, Steel J.A. had this to say with respect to sentencing for multiple offences, asis the case here (at paras. 29-31): Nonetheless, the procedure adopted in this case with respect to multiple counts is not the procedure outlined by this court in R. v. Grant(I.M.) (2009), 2009 MBCA 9 , 236 Man.R. (2d) 54; 448 W.A.C. 54; 2009 MBCA 9, at para. 98; R. v. Traverse (L.) et al.(2008), 2008 MBCA 110 , 231 Man.R. (2d) 123; 437 W.A.C. 123; 2008 MBCA 110; R. v. N.A.S. [2007 MBCA 97, 220Man.R. (2d) 43] and Arbuthnot [2009 MBCA 106, 245 Man.R. (2d) 244], at para. 18.

And see, R. v. Golden (B.R.) (2009), 2009MBCA 107 , 245 Man.R. (2d) 254; 466 W.A.C. 254; 2009 MBCA 107, at para. 87. That procedure is for the sentencing judge to first determine whether the offences in question are to be served consecutively or not. Second, if they are to be served consecutively, then an appropriate sentence for each offence should be determined. Third, the totalityprinciple should be applied to the total sentence thereby arrived at to ensure that the total sentence is not excessive for this offender as anindividual. In effect, the sentence must be given a “last look”.

Fourth, if the judge decides that it is excessive, then the sentence must beadjusted appropriately. In some cases that might require a significant adjustment. In R. v. Reader (M.) (2008), 2008 MBCA 42 , 225 Man.R. (2d) 118; 419 W.A.C. 118; 2008 MBCA 42, Chartier, J.A.,confirmed that this was the approach suggested by the Supreme Court in R. v. C.A.M. [ (SCC), [1996] 1 S.C.R. 500]. when it explained the totality principle found in s. 718.2(

c) of the Criminal Code. He explained at para. 27 that at this stage of thesentencing process, the purpose of this last look is to ensure that the total sentence respects the principle of proportionality (set out in s.718.1 of the Criminal Code) by not exceeding the overall culpability of the offender. The “last look” requires an examination of thegravity of the offences, the offender’s degree of guilt or moral blameworthiness with respect to the crimes committed and the harm doneto the victim or victims.

The total sentence may offend the totality principle if it is substantially above the maximum sentence availablefor that type of crime or if its effect is “a crushing sentence” that is not in keeping with the offender's record and future prospects. See R.v.

C.A.M., at para. 40, and Traverse, at para. 65. [34] The failure to consider the totality principle has been found by this court to be an error in principle and, therefore, thesentence imposed is not entitled to any deference, thereby permitting this court to impose the sentence which it deems to be appropriatein the circumstances. [35] I am of the view that when one takes a last look, the sentence of eight years for the young person’s role in theserobberies is excessive, even if made concurrent to the sentence for the murder.

I consider that a sentence in the range of five to six yearswould be more appropriate, and consequently, I would set aside the sentences imposed for the four robberies and replace them with asentence of 15 months for each robbery, consecutive to each other, but concurrent to the sentence imposed on the murder conviction. [36] In

summary, therefore, the appeal as to conviction and the adult sentence imposed for the murder is dismissed, and theappeal as to the sentences imposed for the robberies is allowed as indicated. J.A. I agree: J.A. I agree: J.A.