R v McClements, 2017 MBCA 104

Citation: R v McClements, 2017 MBCA 104 Date: 20171030 Docket: AY16-30-08677 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) A. Y. Kotler and ) K. D. Berkis ) for the Appellant Appellant ) ) M. D. Glazer and - and - ) J. F. Rogala ) for the Respondent ANTHONY JAMES NICK MCCLEMENTS ) ) Appeal heard: ) May 29, 2017 (Young Person) Respondent ) ) Judgment delivered: ) October 30, 2017 NOTICE: Pursuant to section 110(2)(

a) of the Youth Criminal Justice Act , the prohibition on publication set out in section 110(1) does not apply when the young person received an adult sentence. On appeal from R v AM , 2016 MBQB 161 HAMILTON JA [ 1 ] The Crown appeals the dismissal of its application, pursuant to section 64(1) of the Youth Criminal Justice Act ( YCJA ), to sentence the respondent as an adult.

At the heart of this appeal is the analysis required by section 72(1) of the YCJA and the related jurisprudence, particularly with respect to the moral blameworthiness of the respondent. [ 2 ] In the middle of the afternoon, the respondent shot twenty-year-old Nigel Dixon (the deceased) in the back. Two bullets went through the deceased and seriously injured his step-sister, Samantha Meekis. [ 3 ] The respondent pled guilty to second degree murder. The youth justice court judge (the sentencing judge) described the offence as “inexplicable” (at para 3).

She found that the respondent’s “rehabilitation appears to be well underway” and “there appear to be no real risks to public safety” (at para 31). She concluded that this case was “unusual” and a youth sentence is “sufficient to hold [the respondent] accountable for his offending behaviour” (at para 33). [ 4 ] The Crown asserts that the sentencing judge erred in material ways in her analysis under section 72(1) of the YCJA , particularly with respect to the moral blameworthiness of the respondent.

It also asserts that the evidence does not support her finding that the respondent presents no real risk to public safety. [ 5 ] For the reasons that follow, I would allow the appeal and grant the Crown’s application to sentence the respondent as an adult. Background [ 6 ] The shooting occurred on April 2, 2013. The respondent fled after the shooting. He was arrested in Vancouver in March 2014.

[ 7 ] The respondent was 17 years and 4 months old at the time of the shooting. [ 8 ] He pled guilty to the offence in December 2015. [ 9 ] At the sentencing hearing, the Crown and respondent filed an agreed statement of facts. The record also included a pre-sentence report, forensic report, seven victim impact statements and records of the respondent’s incarceration at the Manitoba Youth Centre (MYC) and Agassiz Youth Centre (AYC) after his arrest. [ 10 ] The Crown sought an order that the respondent be sentenced as an adult, the effect of which would be a life sentence with eligibility for parole after seven years (see

section 745.1 (

c) of the Criminal Code (the Code )). The respondent sought the maximum youth sentence under the YCJA , without seeking any consideration for the time spent in pre-sentence custody (see section 38(3)(

d) of the YCJA ). The maximum youth sentence for second degree murder is seven years, comprised of four years in custody and followed by three years of supervision in the community (see section 42(2)(q)(ii) of the YCJA ). Thus, the duration of the proposed youth and adult sentences were not issues for the sentencing judge.

The issue was whether to sentence the respondent as an adult under the Code or as a young person under the YCJA . [ 11 ] The sentencing judge explained the effects of the difference between the two proposed sentences (at paras 17-19): If [the respondent] receives the maximum youth sentence without any credit for pre-trial custody he will not be released from custody until September 2020. By then he will have been incarcerated for almost six and a half years.

He would then be subject to conditional supervision for a further three years, so he would not be free of state control until September 2023 at which point he will be three months short of his 28 th birthday. If [the respondent] is sentenced as an adult he will be sentenced to life imprisonment without eligibility for parole for seven years, which means he will be eligible for full parole on March 14, 2021, although pursuant to s. 746.1(3) (

a) of the Criminal Code he will be eligible for day parole in late 2019. Thereafter, he will be subject to supervision on parole for the rest of his life. So, depending on how [the respondent] conducts himself, and his success at rehabilitation, there may be little difference in the actual time he spends in jail regardless of whether he is sentenced as a youth or as an adult. In fact, he could actually be released earlier — at least on a daily basis, if sentenced as an adult.

The difference in approach is that an adult sentence will not reintegrate [the respondent] into the community until he has demonstrated sufficient rehabilitation; whereas under a youth sentence this will happen by the passage of time alone. As well, in the case of an adult sentence, supervision in the community would continue for life, rather than, as in the case of a youth sentence, for a period of three years.

The Circumstances of the Offence [ 12 ] The facts of the offence are taken from the agreed statement of facts. [ 13 ] In the afternoon of April 2, 2013, the respondent was smoking marijuana with a group of five to eight males, who were members of the Mad Cowz street gang. The respondent was an associate of the gang. [ 14 ] The deceased, Samantha Meekis and two friends (the victim’s group) were walking down a residential back lane in downtown Winnipeg on their way to play pool.

They encountered the Mad Cowz gang members and the respondent (the gang group). [ 15 ] The gang group stopped and surrounded the victim’s group to check whether any of them were associated with a gang. Samantha Meekis told the gang group that they were not from a gang and were from the “rez”, meaning a First Nations community. The gang group then opened the circle surrounding the victim’s group and let them go on their way. [ 16 ] Some of the gang group walked away. The respondent and four others followed the victim’s group as they began to leave by walking single file in the narrow space between two houses.

The deceased was the last in the line. Samantha Meekis was in front of him. [ 17 ] The respondent followed the victim’s group despite being told not to do so by other members of the gang group. He had in his possession a loaded “army green” nine-millimetre semi-automatic handgun with a silencer. When he was about six to eight feet away from the deceased, he pulled the gun from his waistband and fired four to five shots into the deceased’s back. Two of those bullets hit Samantha Meekis in the back. [ 18 ] The deceased died in the hospital. Samantha Meekis was seriously injured and required surgery.

Personal Circumstances of the Respondent [ 19 ] The respondent was born and raised in Winnipeg. He and his older brother were apprehended by Child and Family Services when the respondent was an infant. His aunt and maternal grandparents raised him and cared for him well. He maintains relationships with his mother, who lives in Vancouver with her new family, as well as his brother, who also lives there. [ 20 ] Since grade six, he had limited success in school. He stopped going to school when he was 15 years old and “became

involved in using and selling mari[j]uana, and developed negative peers, including gang members” (at para 21). As described by the sentencing judge ( ibid ): For the year or two prior to his arrest he lived more or less independently, mostly staying with a friend rather than with his aunt, in part because he did not want to her know about his not going to school and also his drug use. [ 21 ] At the time of the offence he was using marijuana daily, which he purchased from the Mad Cowz. [ 22 ] He had no criminal record at the time of the shooting.

Post-Arrest Incarceration [ 23 ] The respondent was incarcerated at the MYC after his arrest. Because of concerns with his behaviour, he was transferred to AYC and placed in a program for offenders requiring a more secure environment and higher degree of control. [ 24 ] He participated successfully in a number of programs and pursued his high school education, for which he received high marks. He started taking online university courses and continues to do so. [ 25 ] In addition, he practices his new found faith daily. Forensic Report Re Assessment Dates January 21 and February 9, 2016 [ 26 ] Dr.

Garry Fisher (Dr. Fisher), a clinical psychologist with Youth Forensic Services, assessed the respondent on two occasions in early 2016.

At that time, the respondent was 20 years old. [ 27 ] With respect to the offending behaviour, he wrote: [The respondent] accepted responsibility, although his description of his actions and specific details leading to his discharging a firearm seemed vague and somewhat difficult to accept at face value. . . . [He described] that he suddenly experienced a sense of “fear,” resulting in his discharging the firearm. [ 28 ] The report also includes these observations and conclusions: [The respondent] interacted in a pleasant and cooperative fashion and demonstrated age-appropriate social conversational skills. . . . [T]here is no evidence of cognitive (intellectual) difficulties that need to be actively taken into account in understanding [the respondent’s] functioning or current criminal justice system involvement. . . .

With respect to his current sentencing, there do not appear to be any significant or outstanding psychological or emotional concerns that directly speak to sentencing needs related to suitability for adult versus youth Court process. From a lifestyle perspective, prior to incarceration, [the respondent] seemed independent at a level that would normally exceed what is typical of same-aged peers, in the sense that he was not living under parental or guardian authority and was not attending school; hence there was no appreciable adult supervision in place for him.

In a general sense, this speaks to a level of maturity and independence that was beyond what is typical for his age. [H]e does not present as an individual for whom significant issues of a mental health nature need to be addressed in intervention / treatment planning. [emphasis added]

Pre-Sentence Report dated February 22, 2016 [ 29 ] The pre-sentence report, authored by Jennifer Williams (Ms Williams), refers to the respondent’s initial “overall positive behaviour” at MYC after his arrest until behavioural concerns arose starting in December 2014 with respect to challenging staff, not following staff direction and demonstrating an overall negative attitude. [ 30 ] After his transfer to AYC on May 1, 2015, Ms Williams noted that “[o]verall, [the respondent] responded favourably to the program”, but that AYC records indicate that he was struggling with frustration and anger issues, having strong-held opinions and his attitude was viewed often as “pretentious”. [ 31 ] Ms Williams wrote that the respondent has “worked diligently to complete 28.5 high school credits and graduate with his full high school diploma with a grade point average of 3.56”; that he is a leader in the classroom and that he wants to continue with his education and become a social worker. [ 32 ] With respect to the respondent’s attitude towards the offence, Ms Williams wrote: [The respondent] agreed with the information presented in the Agreed Statement of Facts.

He verbalized responsibility for his actions. [He] described that prior to the offence he felt “antsy” because he had never held a gun before. He recalled he tried to return the gun to the owner and also made unsuccessful efforts for another gang member to hold it. [The respondent] commented “it just happened” adding “I don’t know what made me pull the trigger”.

Although he admitted he was concerned about the outcome of the shooting, he stated he was “surprised” and unaware that someone had lost their life until the Police arrested him. [The respondent] informed he thinks about the offence “all the time” and added “I give it more thought than I should”. . . . [He] indicated that although his state of mind from marijuana use may have been impaired, he feels that he cannot blame marijuana use for his behaviour. [ 33 ] Ms Williams questioned the respondent’s “poor decision making, his reckless behaviour, and the extent of his criminal lifestyle around the time of the offence.” She assessed him as a medium risk to reoffend.

Applicable Law [ 34 ] The YCJA is a distinct regime to deal with offenders who commit crimes between the ages of 12 and 18 years of age (young persons). The regime applies to all offences. Fundamental to the regime is the presumption of diminished moral blameworthiness for young persons, which recognizes that “because of their age, young [persons] have heightened vulnerability, less maturity and a reduced capacity for moral judgment” (see R v DB , 2008 SCC 25 at para 41 ).

The focus of sentencing under the YCJA is “about balancing [the] conflicting principles to arrive at a sentence tailored to the individual circumstances.” See R v Okemow , 2017 MBCA 59 at para 47 . [ 35 ] The key sections of the YCJA relevant to this appeal are sections 3(1) (Declaration of Principle), 38 (Sentencing— Purpose and Principles), 64(1) (Adult Sentence and Election—Application by Attorney General), 72(1) (Order of adult sentence) and 72(1.1) (Order of youth sentence). These provisions include the amendments made by Parliament in 2012 to the YCJA (the 2012 amendments).

See Safe Streets and Communities Act , SC 2012, c 1. Also see the attached Appendix for the full text of these sections. All subsequent references to legislation in these reasons are to the YCJA unless otherwise noted. [ 36 ] The 2012 amendments included the codification of the presumption of diminished moral blameworthiness for young persons, which was recognized as a principle of fundamental justice under

section 7 of the Canadian Charter of Rights and Freedoms in DB (see sections 3(1)(

b) and 72(1) of the YCJA ). The 2012 amendments also permit the sentencing principles of denunciation and specific deterrence to be considered at the discretion of a youth justice court judge (see section 38(2)). The focus of the 2012 amendments is “on a very narrow set of violent and/or repeat offenders” ( Okemow at para 58). [ 37 ] Section 72(1) sets out what must be addressed by a youth justice court judge when the Crown makes an application for an adult sentence under section 64(1). Because section 72(1) is at the heart of this appeal, I set it out in full: Order of adult sentence 72

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

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

(

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

section 38 wouldnot be of sufficient length to hold the young person accountable for his or her offending behaviour. [emphasis added] [38] In R v ZTS, 2012 MBCA 90, this Court adopted the analytic approach set out by the Ontario Court of Appeal in R v O(A); R v M (J), 2007 ONCA 144 for an application to sentence a young person as an adult. Also see Okemow (this Court’s most recentdecision on the subject). [39] Section 72(1) creates a two-pronged test that requires two separate inquiries by a youth justice court judge. While theseinquiries have some overlap, they are distinct.

If the Crown does not satisfy both prongs of the test, a youth sentence must be imposed(see section 72(1.1)). The nature of the onus on the Crown is “satisfaction after careful consideration by the court of all the relevantfactors” (Okemow at para 61, quoting R v BL, 2013 MBQB 89 at para 36). Any aggravating factors must be proved beyond a reasonabledoubt. See ZTS; and Okemow. [40] The first inquiry under section 72(1)(

a) requires the Crown to rebut the presumption of diminished moralblameworthiness by proving that the offending young person had the moral capacity of an adult at the time of the offence. Thecircumstances of the offence and the young person are at the heart of the inquiry “as to whether adult-like judgment was exercised”(Okemow at para 62).

This requires “the youth justice court judge [to] engage in careful fact finding relating to the offence and theoffender” (Okemow at para 63). [41] If a youth justice court judge finds that the Crown did not rebut the presumption of diminished moral responsibility, thejudge need not engage in the second inquiry and a youth sentence must be imposed. [42] If a youth justice court judge finds that the Crown has rebutted the presumption, the judge must go to the secondinquiry under section 72(1)(

b) to answer whether a youth sentence is sufficient to hold the young person accountable. [43] The second inquiry requires a youth justice court judge to determine what the youth sentence would be in accordancewith the principles set out in sections 3(1)(b)(ii) and 38 under the YCJA and then address if that sentence is sufficient to hold the youngperson accountable. Section 3(1)(b)(ii) sets out the principle that the criminal justice system for young persons must be based on theprinciple of diminished moral blameworthiness or culpability by emphasizing “fair and proportionate accountability that is consistentwith the greater dependency of young persons and their reduced level of maturity.”

Section 38 sets out the purpose, principles andfactors to be considered in a youth sentencing. (Here, the sentencing judge did not have to determine the youth sentence because therespondent sought the maximum sentence for the offence.) [44] For the purposes of the analysis under section 72(1)(b), accountability is the equivalent of the adult sentencing principleof retribution. See ZTS at para 65 adopting the Ontario Court of Appeal’s definition in O (

A) at paras 47-50. Also see Okemow at para66. [45] Therefore, a meaningful sentence to hold a young person accountable must reflect three criteria: 1) The moralculpability of the young person, having regard to the intentional risk taking of the young person; 2) The consequential harm caused bythe young person; and 3) The normative character of the young person’s conduct (see O (

A) at para 47). The normative conduct inquiryrequires the court to consider societal values and whether, for example, the “circumstances of the offence are shocking to thecommunity” (O (

A) at para 48, quoting R v W (RE) (2006), (ON CA), 205 CCC (3d) 183 at para 43 (Ont CA)). [46] While the approach is primarily “offender-centric”, the interests of society remain important, especially whensentencing for a violent crime. As stated by Mainella JA in Okemow (at para 67): The approach taken in O (A); M (

J) is an “offender-centric” perspective to accountability. However, it would be too drastic to say thatthe interests of society were irrelevant in the assessment of accountability before the 2012 amendments to the YCJA. It has always been afacet of the concept of accountability that, for serious offences involving violent crime, a youth sentence must promote, not undermine,public respect for the administration of justice. [47] In the end, a youth sentence must achieve two objectives to hold a young person accountable.

First, it must be longenough to reflect the seriousness of the offence and the young person’s role in it. Second, it must be long enough to provide reasonableassurance of the young person’s rehabilitation to the point where he/she can safely be reintegrated into society. If the Crown proves thata youth sentence would not be long enough to achieve these goals, then an adult sentence must be imposed (see O (

A) at para 50, quotingfrom R v Ferriman, 2006 CarswellOnt 5993 at para 38 (Sup Ct J)). Also see ZTS at para 63; R v H (CT), 2015 MBCA 4 at para 26; andOkemow at para 66. [48] To summarize, the accountability inquiry under section 72(1)(

b) has several considerations: 1) The moral culpability ofthe young person, having regard to the intentional risk taking of the young person; 2) The consequential harm caused by the youngperson; and 3) The normative character of the young person’s conduct. The consideration of the normative character of the conduct callsfor a consideration of societal values. In the end, a youth sentence must satisfy two objectives: 1) It must be long enough to reflect the

seriousness of the offence and the young person’s role in it; and 2) It must be long enough to provide reasonable assurance of the young person’s rehabilitation to the point where he/she can be safely reintegrated into society. If the Crown satisfies a youth justice court judge that either of these objectives cannot be achieved by a youth sentence, then an adult sentence must be imposed. Positions of the Parties [ 49 ] The Crown’s position is that the sentencing judge made two material errors in principle.

First, the Crown asserts that the sentencing judge failed to consider the respondent’s moral blameworthiness in applying section 72(1). More specifically, it submits that the sentencing judge did not address the first inquiry under section 72(1)(

a) as to whether the Crown had rebutted the presumption of diminished moral blameworthiness of the respondent. It also submits that this failure affected the sentencing judge’s analysis of accountability under section 72(1)(b), which it says was an incorrect balancing of aggravating and mitigating factors.

Second, the Crown asserts that the sentencing judge wrongly concluded that the respondent posed no real risk to public safety, when the evidence did not support such finding. [ 50 ] The Crown submits that if this Court agrees that the sentencing judge erred in her analysis under section 72(1), then there is no need to address the second alleged error. [ 51 ] The respondent’s position is that the sentencing judge referred to the appropriate statutory provisions and case law, adequately considered all factors, recognized the gravity of the offence and carefully considered his background.

More particularly, he says that she did not minimize his moral blameworthiness or draw unwarranted conclusions in respect of his behaviour and risk level. He says that she correctly balanced the various sentencing principles applicable and imposed a sentence that was specific to him for his offence. As such, he says that the youth sentence is entitled to deference. Issues and Standard of Review [ 52 ] An appeal of a decision dismissing the Crown’s application to impose an adult sentence is appealable as a sentence (see sections 37(4) and 72(5)). As with any sentence appeal, leave is required.

The standard of review is the same standard that applies to other sentence appeals. See Okemow at para 41, quoting R v Houle , 2016 MBCA 121 (at para 11 ): The law affords a sentencing judge great latitude in tailoring a sentence to the offence and the offende r ( R v Ipeelee , 2012 SCC 13 at para 38 , [2012] 1 SCR 433; and R v Nasogaluak , 2010 SCC 6 at paras 43-46 , [2010] 1 SCR 206).

Accordingly, the threshold for appellate intervention with a sentence is “very high” and limited only to situations of material error or where the sentence is demonstrably unfit ( section 687(1) of the Code and R v Lacasse , 2015 SCC 64 at para 52 , [2015] 3 SCR 1089). A material error has two qualities beginning with demonstration of an error in principle, such as an error in law, a failure to consider or give sufficient weight to a relevant factor, consideration of an irrelevant factor or an overemphasis of an appropriate factor.

The second aspect is that the error must have impacted the sentence in more than just an incidental way (see Lacasse at para 44 ). Where the error is harmless, as it has “no real effect” on the sentence, appellate intervention is not permitted ( Lacasse at para 45 ).

A sentence will be demonstrably unfit where it unreasonably departs from the principle of proportionality taking into account the individual circumstances of the offence and the offender and the acceptable range of sentence for similar offences committed in similar circumstances (see Lacasse at paras 52-55 ; and R v Ruizfuentes (HS) , 2010 MBCA 90 at para 7 , 258 ManR (2d) 220). [emphasis added] [ 53 ] The issues may be stated as follows: 1. Did the sentencing judge fail to address whether the Crown had rebutted the presumption of diminished moral blameworthiness? 2.

Did the sentencing judge fail to consider the respondent’s moral blameworthiness in the context of addressing whether a youth sentence would hold the respondent accountable for the offence? 3. Did the sentencing judge err in finding that the respondent posed no real risk to public safety? and 4. If the sentencing judge erred in any of these ways, was the error material in that it affected the sentence? [ 54 ] The first and second issues are questions of whether the sentencing judge erred in principle by not addressing, or failing to give sufficient weight, to a relevant factor.

The third issue raises a question of fact and is entitled to deference unless the sentencing judge made a palpable and overriding error. The fourth issue is a question of law. Analysis [ 55 ] The sentencing judge wrote detailed reasons with respect to the circumstances of the offence and the respondent. She described the shooting as “inexplicable”, with “no discernible reason” (at paras 3, 7). She referred to the seven victim impact statements and the devastation suffered by the deceased’s family and community. [ 56 ] She set out the applicable sections of the YCJA , including section 72(1).

She explained that she did not consider the principles of denunciation and specific deterrence because the Crown did not ask her to do so. [ 57 ] She quoted from O (

A) for the principle that “accountability in the context of the YCJA is the equivalent of the adult

sentencing principle of retribution” (at para 13). The quote included the following passage from O (A) (at paras 46-47): 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 incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothingmore. . . . . .

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicialsentence properly reflect the moral blameworthiness 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 of values as enshrined within our substantive criminal law. [Underlining 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 harmcaused by the offender, and the normative character of the offender’s conduct”. [Underlining omitted.] We see no other rational wayfor measuring accountability. [58] While the sentencing judge explained that the Crown had the onus “to satisfy me that the conditions of s. 72(1) havebeen met” (at para 14), she did not engage in any analysis for the first inquiry, mandated by section 72(1)(a), of whether the Crown hadrebutted the presumption of diminished moral blameworthiness.

The respondent acknowledges that the sentencing judge did notspecifically address this inquiry, but argues that her references to section 72(1), read in the context of her reasons, indicate that she turnedher mind to this inquiry.

I disagree. [59] The sentencing judge’s error is manifested in her statement that (at para 12): [O]n an application for an adult sentence the focus remains the principle of accountability, and the fundamental issue is that articulatedin s. 72(1)(b): whether a youth sentence is of sufficient length to hold the young person accountable. [60] Furthermore, she commenced her analysis by weighing certain factors (at paras 29-30): In my view there are several important considerations that weigh in favour of an adult sentence, including: • The seriousness of the offence itself.

A youth sentence is, of course, available for murder, even first degree. Nonetheless, murderremains the most serious offence in our society. • [The respondent] was very close to 18 at the time of this offence and based on his lifestyle was functioning at a level ofindependence and maturity beyond his years. • The circumstances are particularly aggravating. Whether [The respondent] was a member or associate of the Mad Cowz gangmakes no difference. He was acting with a gang to enforce its territory.

He had a loaded prohibited firearm, and despite the direction ofthe senior gang member, chose to follow and then shoot [the deceased] for no apparent reason. He shot him in the back, not just once butfour to five times. He also injured Samantha Meekis. All of this occurred in the middle of an afternoon in a residential area.

• There remain some lingering concerns that have been identified with respect to [The respondent’s] anger management and problems with authority.

At the same time, this must be balanced with other equally significant, but positive considerations: • [the respondent] pled guilty and has spared the people who were with [the deceased] and his family the difficulty of a preliminary inquiry or trial; • he has no prior record, and his actions appear to be out of character; • he has no underlying cognitive, behavioural, emotional or psychological issues; • he has availed himself of opportunities for programming presented while in custody; • he is a serious and hardworking student and academically has accomplished a great deal, and has not only completed but has been an active and positive participant in programs; • he has set positive and seemingly realistic goals for his long-term future; • while he is assessed at medium risk to reoffend, he has taken several programs aimed at reducing his risk factors; • he shows insight into his issues, including his need to address his anger; • overall, his behaviour has improved dramatically and the incidents of aggression and acting out have minimized; • in his conversations with both Dr.

Fisher and Ms. Williams he openly accepted responsibility for his behaviour. [ 61 ] In addition to not addressing whether the Crown had rebutted the presumption of diminished moral blameworthiness, the sentencing judge did not engage fully in the accountability analysis explained in O (

A) and adopted by this Court. This required her to consider specifically the respondent’s moral culpability in regard to his intentional risk taking, the consequential harm caused by him, and the normative character of his conduct. As a result, she did not address whether the youth sentence would be long enough to reflect the seriousness of the offence and the respondent’s role in it. Her focus was on whether the youth sentence would provide reasonable assurance of the respondent’s rehabilitation to the point where he could be safely reintegrated into society.

She wrote (at para 31): This is not a situation where an accurate diagnosis or effective treatment program needs to be defined. Rather, [the respondent’s] rehabilitation appears to be well underway. The evidence indicates that the extent to which he needs counselling and programming is fairly minimal; there appear to be no real risks to public safety.

While no one can predict the future, it is likely that the main consequence of an adult sentence would be to place [the respondent] on lifetime supervision. [ 62 ] I am persuaded that her failure to consider these applicable factors impacted her analysis in more than just an incidental way.

As such, they are material and permit appellate intervention. [ 63 ] When I engage in the required analysis, the record demonstrates that the Crown had rebutted the presumption of diminished moral responsibility and that, after engaging in the required accountability analysis, I conclude that the youth sentence would not be long enough to reflect the seriousness of the offence and the respondent’s role in it. As a result, the respondent must be sentenced as an adult. First Inquiry Under Section 72(1)(a)

[64] The respondent acknowledges that his moral blameworthiness is high. I agree with him that it must be assessed at thetime of the offence. Contrary to his assertions, evidence related to later periods of time can inform the analysis. Dr. Fisher’s report isimportant evidence for this inquiry although it is dated three years after the date of the offence. The report includes references to thatperiod of time and periods relatively close to it. The sentencing judge appropriately referred to Dr.

Fisher’s conclusion that therespondent’s lifestyle prior to incarceration seemed independent at a level that would normally exceed what is typical of same-agedpeers. She found that the respondent was “functioning at a level of independence and maturity beyond his years” (at para 29). [65] The respondent did not suffer from any cognitive or emotional disability that would prevent him from appreciating themoral consequences of his actions.

That, along with his age at the time of the offence, his independent lifestyle living as an adult at thetime of the offence, his choice to associate with a street gang and engage in a criminal lifestyle, his choice to carry a semi-automatic gunand his crime of violence and high risk taking, all demonstrate that the Crown rebutted the presumption of diminished moralblameworthiness. Second Inquiry Under Section 72(1)(b) [66] There can be no question that the murder was an offence of high intentional risk taking that resulted in devastatingconsequential harm.

The sentencing judge understood this, as evidenced by her description of the aggravating circumstances of theoffence and its consequences.

However, the sentencing judge did not address the respondent’s moral culpability in the context of thishigh intentional risk taking or the normative character of this conduct for the purposes of the analysis required by section 72(1)(b). [67] To repeat, the respondent’s moral culpability is high, given his high intentional risk taking of associating with gangmembers, possession of semi-automatic weapons, following the victim’s group and shooting the deceased in the back several times. [68] Furthermore, the normative character of the respondent’s criminal conduct is of such a random and violent nature that itshocks the conscience of the community. [69] The respondent argues that the Crown, must, in the end, demonstrate two things before an adult sentence is imposed: 1)That the youth sentence is not long enough to reflect the seriousness of the offence and the respondent’s role in it; and 2) That it is notlong enough to provide reasonable assurance of the respondent’s rehabilitation to the point where he can safely be reintegrated intosociety.

This is an incorrect statement of the law. [70] The jurisprudence is clear that for a youth sentence to hold a young person accountable, it must achieve two objectives: 1) It must be long enough to reflect the seriousness of the offence and the young person’s role in it; and 2) It must be long enough toprovide reasonable assurance of the young person’s rehabilitation to the point where he can be safely reintegrated into society.

If theCrown demonstrates that either objective of accountability is not met, an adult sentence must be imposed. [71] The sentencing judge was satisfied that the youth sentence was long enough to reasonably assure the respondent’srehabilitation and the safety of the community upon his reintegration. The Crown takes issue with this finding. Given the record and thedeference owed to the sentencing judge’s findings of fact, I see no basis for appellate intervention in this regard.

However, this finding,by itself, does not entitle the respondent to a youth sentence as the other objective cannot be satisfied by the youth sentence. It is simplynot long enough to reflect the seriousness of the offence and the respondent’s role in it. [72] There are cases where youth sentences have been imposed for second degree murder (see R v CJP, 2011 MBPC 62; andR v A (DR), 2014 MBQB 199). However, an adult sentence here is consistent with many other cases including gang-related murders byyoung persons.

See, for example, R v S (CE), 2009 MBCA 61; R v T (JJ), 2010 MBQB 216; R v DLS and JB, 2012 MBQB 177; R vMNP, 2012 MBQB 263, aff’d 2014 MBCA 2; R v TARS, 2013 MBQB 161; R v CGD, 2014 MBQB 142; R v Whiteway (BDT) et al, 2015MBCA 24; and R v JJB, 2016 MBCA 4. [73] While the facts in these cases can be distinguished, they demonstrate how the accountability analysis very often leads tothe conclusion that an adult sentence is required for violent highly morally culpable crimes.

As stated by Nordheimer J in R v Simpson-Rowe, (ON SC), 2009 CarswellOnt 2270 (Sup Ct J) (at para 73): Respect for the justice system commands a sentence that not only is, but is seen to be, reflective of the acts underlying the offence andthe offender’s role in those acts. We have the right to expect an appropriate degree of accountability and responsibility from all of ourcitizens, even our youngest citizens. [74] The record shows that the respondent has made progress in his efforts of rehabilitation.

However, this progress to datedoes not address the need to hold him accountable for his offending behaviour by this random, violent and unexplained murder. Nonetheless, his rehabilitation efforts will be important to any application that he makes for parole. While he is being sentenced as anadult to a life sentence, as explained by the sentencing judge, he will be eligible for day parole in late 2019 and full parole in March2021. Conclusion [75] The sentencing judge erred in principle in several ways in her analysis under section 72(1).

These errors were material,in that they impacted the sentence in more than just an incidental way. Given his high degree of moral blameworthiness, a youthsentence would not be sufficient in length to hold the respondent accountable for the shocking murder of Nigel Dixon. [76] I would grant leave to appeal and allow the appeal. I would grant the Crown’s application to sentence the respondent asan adult, impose a life sentence, and refer the matter of where the respondent will serve his sentence to the sentencing judge for

determination pursuant to section 76(1) of the YCJA . JA I agree: JA I agree: JA APPENDIX “A”—RELEVANT LEGISLATION Youth Criminal Justice Act Policy for Canada with respect to young persons 3

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

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

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

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

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

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

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

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

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; (

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

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

f) subject to paragraph (c), the sentence may have the following objectives: (

i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. Factors to be considered 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. . . . Application by Attorney General 64

(1) The Attorney General may, before evidence is called as to sentence or, if no evidence is called, before submissions are made as to sentence, make an application to the youth justice court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years and that was committed after the young person attained the age of 14 years. . . .

Order of youth sentence 72(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.