R. v. H. (C.T.), 2015 MBCA 4

Citation: R. v. H. (C.T.), 2015 MBCA 4 Date: 20150115 Docket: AY14-30-08166 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin BETWEEN : ) L. M. Van Dongen HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) A. Y. Kotler and ) C. R. Savage - and - ) for the Respondent ) ) Appeal heard: H. (C. T.) ) October 28, 2014 ) (Young Person) Appellant ) Judgment delivered: ) January 15, 2015 NOTICE OF RESTRICTION ON PUBLICATION: Pursuant to s. 110(2)(

a) of the Youth Criminal Justice Act , the prohibition on publication set out in s. 110(1) does not apply when the young person received an adult sentence. However, s. 110(2)(

a) only takes effect after the appeal period expires. STEEL J.A. [ 1 ] This is a sentence appeal where the young person (also referred to as C.H.) was sentenced as an adult pursuant to an order made under s. 64 of the Youth Criminal Justice Act (the YCJA ). [ 2 ] C.H. pled guilty to seven violent offences arising from incidents on two separate dates.

At sentencing, the Crown sought an adult sentence of eight years with 1:1 credit for time served, while defence counsel requested a youth sentence of an additional three years going forward. [ 3 ] The sentencing judge imposed an effective adult sentence of seven years less time in custody (two years) to be served in a youth custody facility pursuant to s. 76(1)(

a) of the YCJA . On appeal, C.H. argued that his sentence be varied to a youth sentence, or alternatively, an effective adult sentence of five years less credit for time served. [ 4 ] This is a sad case involving a young person whom society has failed. His family background reflects the inter- generational impact of attendance at residential schools. His 40 placements between the ages of 5 and 15, including the placement in an emergency shelter for several months before the night of the multiple assaults, reflect the inadequacies of the child protection system.

Nonetheless, the sentencing judge had the difficult task of balancing public safety with the needs of the young person for treatment and structure. She carefully considered all the factors and, in particular, the evidence of the experts who examined C.H. and decided that he required a lengthy period of custody before he could safely be reintegrated into the community. [ 5 ] In so finding, I do not believe she erred and I would dismiss the appeal. Facts [ 6 ] In March 2011, C.H. became angry with a group home worker when she declined his request to use the telephone in the early morning hours.

He grabbed the worker, pulled her onto his lap, wrapped a computer cord around her neck and began choking

her. He stopped and fled the residence only when the sound of another resident scared him off. C.H. was charged with assault with a weapon and released from custody on an undertaking which included a condition that he not possess, own or carry any weapon. [ 7 ] C.H. was pending on that charge when, in September 2011, he and his co-accused devised a plan to go out on the streets to assault people. Armed with a screwdriver and a folding knife, they randomly assaulted eight strangers, stabbing five, over the course of four and one-half hours.

C.H. was the individual who actually committed the stabbing in all but one of the assaults. He was charged with two counts of robbery, attempted robbery, aggravated assault and assault with a weapon. The aggravated assault conviction was the third assault on the night in question. It involved a savage attack on an individual C.H. briefly stalked beforehand. The victim was beaten and stabbed eight times, resulting in him being hospitalized for several months. C.H. told police he thought the victim would die, but he and the co-accused decided nevertheless to continue their random attacks.

Three further stabbings of strangers occurred. [ 8 ] None of the victims were armed, none of the victims provoked or acted aggressively toward C.H. As described by the sentencing judge, “The violence was needless, excessive and egregious.” C.H. provided a statement to police in which he admitted his involvement and advised that they made a decision to go out and hurt some people, but no explanation was given as to why such a decision was made. C.H. has been held in continuous custody since his arrest date. [ 9 ] The circumstances of C.H. are that, at the time of the offences, he was 15 years old.

He was originally from Island Lake, Manitoba, and was first apprehended at the age of five due to his mother’s alcoholism. Between the ages of five and ten, he was apprehended 12 times as a result of his mother’s issues with alcohol, substance abuse, neglect and when his mother herself was in custody. C.H.’s father has never been involved in his life. At the age of ten, C.H. was apprehended and not returned to the care of his mother.

In between C.H.’s first apprehension in 2000 when he was five, and C.H.’s arrest and detention in 2011 when he was 15, he had been placed in over 40 placements by Child and Family Services. His life experience has been one of neglect and he has a long history of substance abuse. He has never been employed. His prior youth record is only for property-related crimes.

This was his first instance of being charged with a violent offence. [ 10 ] His former probation officer, who supervised C.H. in 2010, described the youth as being easily misled by his negative peer group, which was composed of youth who were older and more sophisticated. With respect to his behaviour, the probation officer stated, “he is a threat to the community and without intense structure, supervision and proper rehabilitation he will reoffend.” [ 11 ] When C.H. was detained in custody, he was assessed as having an Alcohol-Related Neurodevelopmental Disorder (ARND).

ARND is one of several medical diagnoses associated with prenatal alcohol exposure and comes under the non-diagnostic umbrella term of Fetal Alcohol Spectrum Disorder (FASD) along with Fetal Alcohol Syndrome (FAS). See Svetlana Popova et al., “Fetal Alcohol Spectrum Disorder Prevalence Estimates in Correctional Systems: A Systematic Literature Review” (2011) 102:5, Can. J. Public Health, 336. ARND may result in problems as severe as those associated with FAS. In fact, it is often these individuals whose disabilities go unrecognized, as happened to this youth. See Larry N. Chartrand & Ella M.

Forbes-Chilibeck, “The Sentencing of Offenders with Fetal Alcohol Syndrome” (2003) 11 Health L.J. 35 (QL). [ 12 ] The medical diagnosis concluded that the youth had several domains of brain function that were significantly impaired, including language, attention, executive function, academic skills, sensory function and clinical impairment in social adaptive function. During the forensic assessment, his IQ was assessed to fall in the extremely low range. He is not able to live independently.

The forensic assessment described him as representing a “significant challenge” to community management with an elevated risk for future violent behaviour. [ 13 ] His case worker at Agassiz Youth Centre (AYC) did testify to an improvement in C.H.’s behaviour since first arriving at the centre in 2011. Although there were a few incidents at first, C.H. was better at controlling his emotions and, at the time of sentencing, there had been no major incidents since March of 2012.

In addition, the worker with the FASD court program testified that she was developing a good relationship with the young person and he does want help and shows “motivation.” Decision of Sentencing Judge [ 14 ] In lengthy reasons, the sentencing judge held that she was not satisfied that a youth sentence would hold C.H. accountable. Instead, she imposed an adult sentence as follows: March 11, 2011

a) Assault with a weapon - Four months, four days pre-sentence custody noted and a sentence of one day going forward. September 21, 2011

b) Robbery with a weapon - 12 months pre-sentence time in custody noted and a sentence of one day custody going forward (consecutive).

c) Robbery with a weapon - Eight months pre-sentence custody noted and a sentence of two years going forward (consecutive). September 22, 2011

d) Aggravated assault - Three years custody (consecutive).

e) Assault with a weapon - 18 months custody (consecutive).

f) Robbery with a weapon - Two years custody (consecutive).

g) Robbery with a weapon - Two years custody (consecutive).

[15] Applying the principle of totality, she then reduced the sentences in the following manner: March 11, 2011

a) Sentence remained the same. September 21, 2011

b) Reduced from 12 months pre-sentence time in custody noted and a sentence of one day custody going forward (consecutive) to sixmonths pre-sentence time in custody noted and a sentence of one day custody going forward (consecutive).

c) Reduced from eight months pre-sentence custody noted and a sentence of two years going forward (consecutive) to 14 months pre-sentence custody and a sentence of one day going forward (consecutive). September 22, 2011

d) Reduced from three years custody (consecutive) to two years custody (consecutive).

e) Reduced from 18 months custody (consecutive) to one year custody (consecutive).

f) Reduced from two years custody (consecutive) to one year custody (consecutive).

g) Reduced from two years custody (consecutive) to one year custody (consecutive). [16] C.H. was ordered to serve his sentence in a youth facility. [17] C.H. appeals, arguing that the sentencing judge erred in her application of s. 72 of the YCJA. Alternatively, C.H.submits that the sentencing judge erred in imposing a sentence that was harsh and excessive, having regard to the circumstances of theoffence and the circumstances of the offender; in particular, in failing to appropriately take into consideration the principles arising fromR. v. Gladue, (SCC), [1999] 1 S.C.R. 688, s. 718.2(

e) of the Criminal Code (the Code) and the ARND diagnosis ofC.H. Standard of Review [18] The decision to impose an adult sentence on a young person is governed by the same standard of review as a sentenceappeal. As was stated in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3 (at para. 101): .... Section 72(1) of the YCJA sets out a number of matters to be considered by the youth justice court in reaching its opinion about whethera youth sentence would be sufficient. The reasons for sentence of the trial judge reflect that he did so.

His weighing of these matters toreach his opinion about sufficiency is a task that must attract deference in this court. The Crown does not suggest that he acted on animproper principle or considered extraneous matters. It essentially argues that he did the weighing wrongly. In my view, that is notenough to warrant the setting aside of his decision. …. See also R. v. A.A.Z., 2013 MBCA 33 at para. 18, 291 Man.R. (2d) 152. [19] The standard of review of a sentence is well known.

Appellate courts are not to interfere with the decision of thesentencing judge unless an error in principle is present or the sentence is unfit. See R. v. L.M., 2008 SCC 31 at para. 14, [2008] 2 S.C.R.163. [20] An error in principle includes failing to consider a relevant factor, taking into account an irrelevant factor, failing to givesufficient weight to a relevant factor or overemphasizing an appropriate factor. See R. v. Arbuthnot (S.M.), 2009 MBCA 106 at para. 4,245 Man.R. (2d) 244. The fundamental measure of the fitness of a sentence lies in the principle of proportionality.

A sentence must beproportionate to the seriousness of the offence and the moral blameworthiness of the offender. If the sentence fails to meet thisfundamental test, it is unfit. See R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500. Relevant Legislation [21]

Section 72 of the YCJA was amended after the commission of the offences that are subject to this appeal. By agreementof counsel, the pre-amendment wording was used, which reads: Test — adult sentences

(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. Onus 72.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant. Sections 3(1)( b )(ii) and 38 of the YCJA read: Policy for Canada with respect to young persons 3.

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

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: …. (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, …. 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. Sentencing principles 38.

(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; 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. Factors to be considered 38.

(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. Should the Sentencing Judge Have Imposed an Adult Sentence [ 22 ] In order to make a determination under s. 72 of the YCJA , the court must specifically consider the principles of s. 3(1) ( b )(ii) and s. 38 of the YCJA and weigh and balance all of those factors. [ 23 ] Fundamentally, the court must determine whether a youth sentence will be sufficiently long to hold a young person accountable for his behaviour.

Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society. Accountability is offender-centric rather than society- centric. See R. v. A.O. et al. , 2007 ONCA 144 at para. 42 , 222 O.A.C. 38. [ 24 ] Accountability reflects the moral culpability of the offender. Section 3(1)( b )(ii) requires the court to consider the principle that the accountability of adolescent offenders is limited in comparison to that of adults, given their lack of maturity.

Therefore, when determining accountability, young people are entitled to a presumption of diminished moral blameworthiness or culpability. See D.B. at para. 62 .

[ 25 ] Nonetheless, an adult sentence can be imposed on a young person if the Crown can satisfy the court “on consideration of all relevant factors, that a youth sentence would be of insufficient length to meet the base requirement of accountability that drives the entire YCJA sentencing regime” ( A.O. at para. 59 ). In satisfying the court of the appropriateness of an adult sentence, there is no requirement of proof beyond a reasonable doubt or of proof on a balance of probabilities.

See A.O. at paras. 28-38 . [ 26 ] For a sentence to hold a young person accountable, 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 provide reasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society. Reasonable assurance does not mean proof beyond a reasonable doubt or absolute certainty. It means a reasonable prediction of future behaviour based on an evaluation of all the evidence.

If the sentencing judge finds that a youth sentence would not be long enough to achieve both of these goals, then an adult sentence must be imposed (see R. v. Z.T.S. , 2012 MBCA 90 at para. 65 , 284 Man.R. (2d) 55). [ 27 ] C.H. argues that the sentencing judge did not sufficiently analyze the necessary factors in coming to her decision and tended to minimize the steps taken by C.H. to rehabilitate himself in his two years of pre-sentence custody. [ 28 ] It is also argued that the sentencing judge erred when she stated that C.H. had embraced the gang lifestyle and was an active member of a street gang.

In fact, it is submitted that Ryan Espey, C.H.’s case worker from AYC, testified that there was no issue with C.H. being gang connected for the past two years while in custody. [ 29 ] In addition, C.H. questions the factual accuracy of some of the sentencing judge’s comments and her reliance on information that was not current, such as whether C.H. demonstrated motivation to develop pro-social relationships and whether C.H. was a violent individual.

In short, it is submitted that the sentencing judge failed to consider relevant factors and overemphasized irrelevant factors. [ 30 ] The Crown responds that the sentencing judge’s reasons and review of the evidence must be read in context and in conjunction with the evidence called and the lengthy submissions of counsel. [ 31 ] One issue to consider when determining whether to impose an adult sentence is the length of a youth sentence as opposed to what might be imposed on an adult for the same offence.

On that point, it should be noted that if no adult sentence were imposed, the maximum additional youth sentence of three years would, by virtue of the YCJA , be composed of two further years of custody and one year to be served in the community. [ 32 ] It is obvious that the offences here were quite serious. What was difficult to determine was how long would be necessary to provide reasonable assurance of the offender’s rehabilitation to the point where he could be safely reintegrated into society.

In concluding that a youth sentence of two further years of incarceration and one year to be served in the community would not be sufficient to rehabilitate C.H., the sentencing judge did take into account mitigating factors, including the fact of C.H.’s cognitive deficits, that there had been “significant changes in C.H.’s behaviour as they relate to violence over the last year” and that there had been no significant issues since March 2012, albeit she felt that these were “baby steps, relative to his risk factors.” [ 33 ] While she did consider his improvement since March 2012, when sentencing him in September 2013, she was also required to consider his entire history.

She was certainly entitled to conclude that C.H. had a history of committing violent acts. When he was moved to Winnipeg in March 2009, in order to receive services that were not available in Thompson, his social worker testified that he stole a car and set an apartment on fire. She stated that, prior to his incarceration, he was out of control in the community and was extremely violent and non-compliant in a group-home setting.

The forensic assessment also referenced violent behaviour in that C.H. had assaulted staff members of group homes on two occasions and admitted destroying the place when he was in one particular group home. [ 34 ] The court’s comment of gang involvement is based on the judge’s overview of the evidence that C.H. joined the Crips when he was 13 years of age. The pre-sentence report indicates that C.H. “is listed and readily admitted to being a Member of Crips street gang,” although he does indicate his intent to walk away from the gang, once he is released.

Moreover, the author of the pre- sentence report indicated that, “While the writer commends the youth’s understanding of the negative impact gang membership and associating with people who are criminally motivated has on his life, he has not demonstrated he has the motivation to develop these prosocial relationships thus far.” [ 35 ] Most importantly, the sentencing judge relies on the expert evidence, all of which indicates that the cognitive and emotional deficits of C.H. require long-term counselling and treatment to get him to a point where he can successfully and safely reintegrate into the community and even then, major accommodations need to be made for him. [ 36 ] A number of reports, including those of his probation officer, the psychiatrist who assessed him in 2011 and others, addressed C.H.’s significant addiction issues which have a long history and were present at the time of the offences.

He began drinking at age 13 and began using marihuana at age ten. He has also consumed ecstasy, cocaine and prescription medication. [ 37 ] The pre-sentence report concluded that C.H. was assessed as high risk, required a highly structured placement and needed to be supervised at all times to keep him from resorting back to his gang friends.

The pre-sentence report stated that, “At this time, the subject being in the community without proper rehabilitation [is] of great concern to this writer.” This conclusion was reached even though the writer recognized that C.H. had already been in custody for a considerable amount of time. [ 38 ] A court-ordered forensic assessment was ordered and performed in 2012 by Dr. Miroslaw Grygo. It stated: ….

Furthermore, he presents with a number of factors that are associated with significantly elevated risk for delinquent and violent behaviour including history of early instability and history of trauma; poor parental management; history of violent offending and history of non-violent offending; poor school-achievement; delinquent peers; limited coping skills; substance usage; and anger management

problems, and low empathy. His adaptation to structure and expectations of AYC seems to be less than optimal, which may suggest atleast some level of future difficulties with supervision.

Unfortunately, some of [C.H.]’s difficulties with compliance would be related tohis low intellectual functioning and inefficient decision making abilities, which will require a significant input from others to manage. [C.H.] will also require significant amount of intervention targeting his substance usage, presented at his level of understanding. [39] The judge concluded that, given all of the above: There’s no doubt that the processes required to educate C.H. considering his cognitive impairments will be significant at best.

Preparingan environment to live in, to facilitate his strength and address his weaknesses and risk factors is daunting. While there is now adiagnosis, any changes made by C.H. are limited, achieved in a strictly monitored environment in their infancy.

There is no track record,a blueprint of success to be held up against a very violent and deeply ingrained past history in the community. [40] Given all of the evidence, she is entitled to deference in the exercise of her discretion in coming to the conclusion that itwould take more than three years for him to be safely reintegrated into the community, and, therefore, an adult sentence was necessary. [41] The next question then becomes: How many more years?

Was the Sentence Demonstrably Unfit? [42] C.H. argues that, even if an adult sentence was appropriate, seven years was harsh and excessive, having regard to theGladue factors and his diagnosis of ARND. In addition, it is submitted that the court erred in finding that these offences should betreated in a consecutive manner instead of concurrently and erred in the manner in which the principle of totality was handled. [43] Instead, C.H. submits that he was a youthful offender facing his first lengthy period of incarceration. He had entered anearly guilty plea and had demonstrated remorse.

It was clear that drugs and alcohol played a role in the commission of the offence, butthe prospect of rehabilitation was ignored by the sentencing judge. C.H. had significant Gladue factors and an ARND diagnosis. He iseasily influenced by peers, is naive and tends to follow others. These qualities are partly linked to his diminished intellectualfunctioning. It is submitted that the court did not give these factors sufficient consideration. [44] The Crown responds that the sentencing judge did in fact take all of the above factors into account.

What C.H. objectsto is the weight the judge placed on both the mitigating and aggravating factors. The standard of reasonableness applies to the weighingof factors considered in sentencing. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, the Supreme Court of Canada clarified thatan appellate court, in considering whether a sentencing court gave too much consideration to relevant factors, is not at liberty to reweighthe factors and set aside a sentence simply because it would have weighted the relevant factors differently.

The weighing process mustbe assessed against a standard of reasonableness. “The weighing of relevant factors, the balancing process is what the exercise ofdiscretion is all about” (see Nasogaluak at para. 46, quoting Laskin J.A. in R. v. McKnight (1999), (ON CA), 44 O.R.(3d) 263 (C.A.)). [45]

Section 718.2(

e) of the Code directs that “all available sanctions other than imprisonment that are reasonable in thecircumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” [46] In the case of Gladue, the Supreme Court of Canada addressed, for the first time, what this

section means whensentencing an Aboriginal offender. More recently, in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court of Canadaconfirmed the statutory duty of sentencing judges to “consider the unique circumstances of Aboriginal offenders” (at para. 87). As statedin Ipeelee, a failure to do so results in an unfit sentence and constitutes an error justifying appellate intervention. [47] These cases tell us that s. 718.2(

e) of the Code was designed as a lighthouse to assist judges in navigating the sentencingof Aboriginal offenders in their courts. There need not be any direct causal link between the Aboriginal background of C.H. and thecommission of the offence. The

section is a reminder to judges to find a different way. It calls upon judges to use a different method ofanalysis in determining a fit sentence for Aboriginal offenders because the circumstances of Aboriginal offenders are unique anddifferent from non-Aboriginal offenders. As stated in R. v. Gabriel (Q.J.), 2013 MBCA 45, 291 Man.R. (2d) 291 (at para. 19): ….

It is not a question of exempting aboriginal offenders from accountability, but rather crafting an appropriate sentence for anindividual by understanding their background. [48] However, while judges must consider the Gladue factors and while those factors will provide “the necessary context forunderstanding and evaluating the case-specific information presented by counsel” (Ipeelee at para. 60), they will not necessarily demanda different sentence. As LeBel J. explained in Ipeelee (at para. 83): ….

Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencingobjectives can and should be actualized, they will not influence the ultimate sentence.

[ 49 ] The sentencing judge considered all of the relevant factors. She reviewed C.H.’s family background in detail. In fact, his mother gave viva voce evidence.

The court concluded that, “There is little doubt that C.H.’s substance abuse and anger management issues are deeply ingrained in his upbringing.” [ 50 ] The court also concluded that, “Consideration has been given to the Gladue and cognitive issues raised.” However, “C.H.’s degree of responsibility remains significant.” She also points out that C.H. presents with multiple difficult issues, including addiction concerns that have not begun to be addressed in the community.

While there has been improvement in a structured, closely monitored, custody facility and while, as a result of his diagnosis of ARND, he must be rehabilitated differently, that process has barely commenced and its progress and success are unknown at present. The evidence would seem to indicate that C.H. has only extremely rudimentary understanding regarding his deep-rooted anger issues. [ 51 ] C.H. also argued that sentencing on the offences which occurred in September 2011, should have been on a concurrent basis, not a consecutive basis. I acknowledge that there is some validity to this argument.

In some cases, offences committed in a similar manner have been sentenced by the courts in a concurrent fashion. The sentencing judge made no mention of the argument by counsel with respect to this question. [ 52 ] It would have been preferable if the sentencing judge had addressed this issue in her reasons. As we have said many times, when dealing with multiple counts, the judge should first decide whether the multiple counts should be treated in a consecutive or concurrent manner. See, for example, R. v.

Draper (T.G.) , 2010 MBCA 35 at paras. 29-30 , 251 Man.R. (2d) 267. [ 53 ] However, I note that both Crown and defence counsel did address that issue in their submissions.

The Crown argued that, in the final analysis, it did not matter whether the offences were treated as consecutive or concurrent: So I suppose you could either take the most serious of the offences, impose what I would suggest should be just in excess of a six-year sentence going forward, and then consider whether all of them should be concurrent or whether any of them should be slightly less than that concurrent, or alternatively impose consecutive sentences on each and then reduce for totality, but however way you come to it, I suggest that the net sentence should be in and around the range of eight years total, and again, allowing for credit for day-for-day for the time that has been spent in custody. [ 54 ] In her submissions, defence counsel argued that these offences were a spree and should be dealt with on a concurrent basis. [ 55 ] Reasons are to be reviewed in a contextual, functional manner.

In reviewing the decision of the trial judge, an appellate court considers the reasons of the trial judge in the context of the entire record, including the arguments of counsel ( R. v. Artimowich (R.G.) , 2013 MBCA 62 at para. 26 , 294 Man.R. (2d) 136).

Since this issue was addressed by both Crown and defence counsel in their submissions, it is fair to infer that the sentencing judge was alive to the issue and, by virtue of her decision, decided that the counts should be treated in a consecutive manner. [ 56 ] As I have said, although it would have been desirable for the sentencing judge to have explained why she preferred the argument of the Crown as opposed to the argument of defence counsel, this is a discretionary decision on the part of the sentencing judge and I do not see grounds for appellate intervention in this case, although that may not always be the result. [ 57 ] Once the court decided to treat all six offences as consecutive to each other, the sentencing judge correctly proceeded to determine an appropriate sentence for each offence.

It is at the point of determining an appropriate sentence for each offence that the Gladue considerations and the ARND diagnosis should have come into play as mitigating factors, not at the end when reviewing the sentence on the basis of totality. Totality does not require a “reapplication of the other sentencing principles, as they have already been taken into account” ( R. v.

Kozussek , 2013 MBCA 52 at para. 10 ). [ 58 ] The principle of totality is a review process for the judge to decide, after having factored in the mitigating factors, whether the total sentence is of such a significant length that it would be a crippling blow to any attempt by C.H. to rehabilitate himself. The totality principle arises from the principle of proportionality.

If the total sentence is substantially above the maximum sentence available for 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, then some adjustment may be necessary. See R. v. Reader (M.) , 2008 MBCA 42 , 225 Man.R. (2d) 118; R. v. Traverse (L.) et al. , 2008 MBCA 110 at para. 65 , 231 Man.R. (2d) 123; and M. (C.A.) at para. 40 . [ 59 ] In some cases, no reduction will be warranted.

Here, the significant reduction given by the sentencing judge from 12 and one-half years to seven years and the words of the sentencing judge would seem to confirm C.H.’s argument that the mitigating factors were considered at the back end instead of the front end.

In her reasons, the sentencing judge states, “In taking an overall look back at the sentence I imposed and in consideration of totality and Gladue factors, my sentence will be adjusted as set out below.” [ 60 ] However, even if the sentencing judge committed an error of principle, which would allow this court to intervene, the bottom line remains the same – considering these offences and this offender, is an effective sentence of seven years harsh and excessive? “What matters ultimately is the fitness of the sentence, not the route taken” ( Draper at para. 28 ). [ 61 ] Given the evidence as reviewed by the sentencing judge and reviewed again in these reasons, I can only conclude that it is not. [ 62 ] I agree that C.H.’s behaviour has improved in the last two years within a closely monitored environment.

However, those two years must be considered within the context of his entire life and the evidence of the professionals who have examined him. In sentencing an offender such as C.H., the court should focus on two essential factors: the provision of a realistic framework for the

offender’s rehabilitation and personal security and the need to provide protection to the public. Given the deficits described and the violence of the offences committed, this accused requires a significant period of treatment in a highly structured environment. No other appropriate options were provided to the sentencing judge besides a youth custody facility. [ 63 ] Leave to appeal is granted, but the appeal as to sentence is dismissed. J.A. I agree: J.A. I agree: J.A.