R v J.M.O., 2017 MBCA 59

Citation: R v J.M.O., 2017 MBCA 59 Date: 20170620 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella Docket AY16-30-08665 ) BETWEEN : ) ) HER MAJESTY THE QUEEN ) ) Appellant ) ) C. T. St. Croix - and - ) for Her Majesty the Queen ) J.M.O. ) ) K. I. Dowle and (Young Person) Respondent ) A. M. Kravetsky ) for J. M.O. - and - ) ) Docket AY16-30-08673 ) Appeals heard: BETWEEN : ) March 6, 2017 ) HER MAJESTY THE QUEEN ) ) Judgment delivered: Respondent ) June 20, 2017 ) - and - ) ) J.M.O. ) ) (Young Person) Appellant ) 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. Table of Contents Introduction . 3 Background . 5 Circumstances of the Offences . 5 Circumstances of the Young Person . 10 Standard of Review .. 16 Young Person’s Appeal 17

Adult Sentences for Young Persons—General Principles . 17 Relevant 2012 Amendments to the YCJA .. 17 The Test for Imposing an Adult Sentence . 27 The Young Person’s Moral Blameworthiness . 35 Adequacy of a Youth Sentence to Hold the Young Person Accountable . 42 The Crown’s Appeal 45 The Sentence Imposed . 45 Illegal Aspects of the Sentence Imposed . 49 Analysis of the Young Person’s Adult Sentence . 51 Appropriate Sentence for the Young Person . 56 Delay.................................................................................................................................... 67 Disposition . 74 MAINELLA JA Introduction [ 1 ] The young person pleaded guilty to 14 offences that occurred when he was 14 years old.

The most serious of the offences related to two armed robberies: one was of a convenience store; the other was a street mugging of two university students that resulted in serious injuries to one student. [ 2 ] The background of the young person is challenging. He has a Fetal Alcohol Spectrum Disorder (FASD), namely, Alcohol-Related Neurodevelopment Disorder (ARND); as well, he suffers from Attention Deficit Hyperactivity Disorder (ADHD).

Despite his youth and the efforts of some family members and professionals, his prospects for rehabilitation and reintegration are, sadly, illusory. [ 3 ] The youth justice court judge (the judge) imposed an adult sentence under the Criminal Code (the Code ) for the offences relating to the two armed robberies and a youth sentence under the Youth Criminal Justice Act (the YCJA ) for the other offences. She blended the adult and youth sentences together to reach a combined sentence of 48 months’ imprisonment which she then reduced for the purposes of totality (see

section 718.2 (

c) of the Code ) to 36 months’ imprisonment. She then credited the young person with having served the equivalent of 29 months’ pre-sentence custody to leave him with a go-forward sentence of seven months’ imprisonment to be followed by three years of supervised probation. [ 4 ] Both the Crown and the young person seek leave to appeal and, if granted, appeal the sentence.

Both parties agree that aspects of the sentence are illegal and require appellate correction. [ 5 ] In the appeal brought by the young person, he argues that he should have received a youth sentence on all of the 14 offences in the form of no credit for his pre-sentence custody and a seven-month custody and supervision order (CSO) to be followed by two years and five months of probation. His appeal focusses on the judge’s decision under section 72(1) of the YCJA to sentence him as an adult on the offences related to the armed robberies.

Essentially, he submits that the judge failed to properly consider the relevance of him having ARND. [ 6 ] In the appeal brought by the Crown, it argues that the adult sentence of the young person should be increased. It says that the judge’s findings on moral blameworthiness in imposing sentence were inconsistent with her earlier findings in deciding to impose an adult sentence. It argues that she improperly relied on the young person’s ARND condition as a mitigating factor when it did not impact the commission of either armed robbery.

It submits that she failed to consider the objectives of denunciation and deterrence. It says that the judge placed undue emphasis on rehabilitation at the expense of public safety. Finally, it argues that the judge committed the “double-credit error”; she took into consideration his ARND condition twice: first in determining a fit sentence and second in applying the principle of totality. [ 7 ] There is one further aspect to this case. The YCJA creates a statutory requirement for timely proceedings (see sections 3(1)(b)(iv)-(v)). Proceedings here were anything but timely.

The sentencing process consisted of 31 court appearances over the course of approximately two years. That is an unsatisfactory state of affairs requiring comment. [ 8 ] For the following reasons, I would dismiss the appeal of the young person and allow the appeal of the Crown.

Background Circumstances of the Offences [ 9 ] The 14 offences the young person pled guilty to were as follows: 1.

section 137 YCJA— Fail to Attend, Participate and Complete Probation Program—May 27-June 2, 2014; 2.

section 137 YCJA— Fail to Attend, Participate and Complete Probation Program—June 10, 2014; 3.

section 137 YCJA— Fail to Attend, Participate and Complete Probation Program—June 22, 2014; 4.

section 137 YCJA —Curfew Breach—June 25, 2014; 5.

section 334 (

b) Code —Theft Under $5,000—June 25, 2014; 6.

section 267 (

a) Code — Assault with a Weapon—June 26, 2014; 7. sections 343 - 344(1) (

b) Code — Robbery with a Weapon—June 26, 2014; 8.

section 88 Code —Possession of Weapon for Dangerous Purpose—June 26, 2014; 9. section 351(2) Code —Disguise with Intent—June 26, 2014; 10.

section 137 YCJA —Reside as Directed Breach—June 29, 2014; 11. sections 343 - 344(1) (

b) Code — Robbery with a Weapon—June 29, 2014; 12. sections 343 - 344(1) (

b) Code —Robbery with a Weapon—June 29, 2014; 13.

section 88 Code — Possession of Weapon for Dangerous Purpose—June 29, 2014; and 14. section 145(3) Code —Failure to Comply with Condition of Undertaking—June 29, 2014. [ 10 ] The young person’s parents have played a sporadic role in his life due to their own substance abuse issues and repeat involvement in the criminal justice system.

Since his infancy, the young person was raised by his maternal grandparents until February 2014 when they voluntarily placed him with child welfare officials because he was unmanageable. [ 11 ] Child welfare officials eventually decided to temporarily place him in a motel with other troubled youths near the University of Manitoba. The young person was the subject of probation orders, as well as an intensive support and supervision program order (see section 42(2)(

l) of the YCJA ). After several weeks, the young person began to become non-compliant with the conditions of these court orders (obey a curfew, attend school and perform community-service work). He was arrested, charged under the YCJA and released on an undertaking. After his release, he continued to be non-compliant with his various court orders. As well, he stole the mobile phone of a supervisor of the youths at the motel. [ 12 ] In the early hours of June 26, 2014, he committed the offence of assault with a weapon.

That incident involved him and other youths prowling around parked cars looking to break into one. When confronted by a car owner, the young person brandished a knife. The car owner picked up a metal pipe. The young person then directed the others by stating, “There are six of us and we all have knives, surround him.” The car owner fled. The young person slashed the tires of the car while mocking its owner. [ 13 ] Approximately one hour later, the young person committed the first armed robbery.

At just before 4:00 a.m., he and a female accomplice (who was never apprehended) walked into a 24-hour convenience store. The young person was attempting to disguise his identity with sunglasses, a hat and a hoodie. He brandished a knife with a six-inch blade to the clerk, demanded money and cigarettes, and said, “Open the till, I’ll kill you.” The clerk provided him with $90 cash and $150 worth of cigarettes. When the young person was arrested well after the incident, he told police he was drunk and decided to rob the convenience store.

He said he felt bad for the clerk who had “pissed himself out of fear”. [ 14 ] The second armed robbery occurred in the early morning hours of June 29, 2014. The young person, together with S.M. (age 16) and Z.H. (age 14), had left the motel and were roaming the campus of the University of Manitoba at 12:30 a.m., armed with a knife and an airgun. The group approached two university students, V.S. and V.K., and demanded their property. One of the students said, “yeah, right, not today, buddy”. The young person, S.M. and Z.H. then surrounded the two students.

The young person demanded that V.S. take off his shirt and give it to him. V.S. refused. The young person then took the airgun and swung it like a bat, striking V.S. in the face between the eyes, breaking his nose. Z.H. then stabbed V.S. in the rib cage. The two students fled in terror, dropping a credit card and a few hundred dollars worth of property, which the young person and his accomplices seized. [ 15 ] While V.K. was unharmed, his cousin, V.S., suffered serious injuries that required hospitalization. He sustained a four- inch deep stab wound to his ribcage and the knife punctured his liver.

He had internal bleeding into his lung. He also sustained a contusion and swelling to his face, as well as a broken nose. He will require future surgery to his nose to re-align it. [ 16 ] Both V.K. and V.S. were seriously traumatized by the robbery. They were international students from India about to return home for a family visit. Their victim impact statements reveal that the two men have psychological scars from the robbery and are particularly fearful of strangers.

[17] The young person and his two accomplices were arrested by police within an hour of the robbery. The young persontold police that it was his idea to rob the students. He then volunteered that he enjoyed the screaming of the victims. He said he didn’tcare if the victim died. When an officer expressed shock, the young person said, “if he dies, he dies”. When he was asked a second timeabout the victim dying, the young person said, “if the victim dies, I’ll laugh”.

Throughout his interview by police, the young person washighly abusive and demeaning to officers. [18] The young person told his probation officer that he “was high on drugs and intoxicated” when the offences occurred. There is no evidence from the police that, when they arrested the young person shortly after the commission of the second armedrobbery, he was intoxicated. [19] Robbery is a crime of specific intent (see The Queen v George, (SCC), [1960] SCR 871 at 877-79).

Byvirtue of his plea to the three robbery offences arising from the two armed robberies, he formally admitted that, whatever the degree ofhis intoxication was, if any, it did not impair his foresight of the consequences of his actions. [20] In his interview with his probation officer about the two armed robberies, the young person expressed no remorse forthe crimes and did not regret the role he played in their commission. He described them as “fun”.

The probation officer, who has beendealing with the young person for several years, describes him as a “very street-wise young man” who tends “to gravitate towardsnegative influences”. [21] S.M. and Z.H. pled guilty to their involvement in the street mugging of the two university students. The Crown did notmove to have them sentenced as adults. Unlike the young person, S.M. and Z.H. were not subject to any court orders at the time of thearmed robbery. [22] S.M. had no prior youth record and his behaviour while in pre-sentence custody had been exemplary.

He received ayouth sentence of two years’ probation in addition to having been in pre-sentence custody for 415 days. [23] Z.H. had a limited youth record. He received a three-year CSO. Circumstances of the Young Person [24] Extensive material was filed at the sentencing as to the young person’s background and psychological profile, as well asa Gladue report (see R v Gladue, (SCC), [1999] 1 SCR 688). The materials included three assessments of the youngperson by two psychologists, Dr. Fisher and Dr. Therrien.

One of the assessments was from a prior sentencing of the young person in2014 that pre-dated the two armed robberies. [25] By age 14, the young person had accumulated a lengthy youth record with 13 prior sentences for offences includingbreaching court orders, property crimes and assault with a weapon. In the assault incident, the young person and three others were askedto leave a shopping mall after a fire alarm was activated because the group was smoking in a stairwell.

When the mall’s security guardasked the group to leave, the young person took out a can of bear spray and sprayed the guard in the face. [26] There are some Gladue factors in this case. The young person’s maternal grandmother is from the Garden Hill FirstNation. As a child, she taught him to speak Saulteaux. The family does not participate in any Aboriginal traditional activities or believein traditional teachings. The young person’s grandparents provided him and his two siblings with a loving and stable environmentduring his childhood, free from any form of abuse.

The grandparents’ ability to parent him declined to the point of the voluntaryplacement in 2014. The grandparents had to parent their daughter’s two other children and, due to their advancing age and own healthissues, they had a diminished capacity to parent the young person. [27] At age six, the young person was diagnosed with ARND based on his mother’s documented substance abuse duringpregnancy and an evaluation of him done at the Clinic for Alcohol and Drug Exposed Children at the Children’s Hospital in Winnipeg.

According to that assessment, his brain-domain impairments were noted to be attention/hyperactivity, communication/language,memory, executive function and social adaptive. [28] Dr. Fisher explains that the young person presents as an adolescent where there are some “inconsistencies”. On onehand, he has cognitive limitations. His IQ falls below 75, thereby meeting the criteria of an intellectual disability of mild severity. However, he displays no confusion with his thought processes or speech.

He has well-developed visual-processing skills but has greaterdifficulty in learning by verbal processing. [29] According to Dr. Therrien, individuals with similar profiles are often unable to weigh the consequences of their actions,reflect little and struggle with problem solving. The young person’s neurodevelopment disorders create challenges for his social,emotional and behavioural functioning. According to both psychologists, the young person is at risk for impulsive behaviour. In thewords of Dr.

Fisher, the young person is a “high-risk and high-needs young adolescent”. [30] The young person began drinking alcohol at age 11 and likes to binge drink. He began regularly using marijuana atapproximately the age of seven. [31] Information provided from the young person’s teachers is that he stopped regularly attending Grade 8 classes in January2013. He displayed some abilities, particularly in English. The young person was a disruptive student, belligerent to both teachers andfellow students.

After a break of over a year in his education, he continued formalized learning in custody after being arrested for thesecond armed robbery. He was assessed as reading at somewhere in the grade 6.5 to 7 level. His math skills were more basic. He wasoperating at the grade 1 to 2 level. [32] According to a historical psychology assessment from November 2013 prepared by a school psychologist, the youngperson has various strengths and weaknesses. The school psychologist explained that his intellectual disability is manifest in weak

performance in three of four areas of cognitive functioning (verbal comprehension, working memory and processing speed but not perceptual reasoning), as well as significant delays in adaptive functioning (social skills, self-direction, personal safety and communication, among others). His long-standing problems with attention regulation, self-control and ability to plan/predict consequences of actions create deficits for him in his executive functioning. The school psychologist also noted certain strengths, such as academic skills when he is focussed and well-developed nonverbal problem-solving skills.

She noted that “[h]e has the ability to think about things on a fairly abstract level and displays skills in inductive reasoning and conceptual thinking, when information is presented in visual format”. [ 33 ] The young person represented to Dr. Fisher and Dr. Therrien that he is quite vulnerable and is easily led astray by negative peers. Many of his associates are members of gangs. According to both Dr. Fisher and Dr.

Therrien, the young person “demonstrated some insight” into the relationship between his reoccurring involvement in the criminal justice system and his negative peers, substance abuse issues, impulsivity and failure to take his prescription medicine for his ADHD. Both Dr. Fisher and Dr. Therrien viewed the young person as immature in relation to his age level. According to Dr.

Fisher, the young person’s “social environment needs to be carefully monitored” because, in an unstructured setting with negative influences, “he would be more vulnerable to engaging in delinquent behaviour with little forethought at that point with regard to the potential impact of his actions upon himself and others”. [ 34 ] Prior to the offences giving rise to this appeal, the young person’s probation officer thought the young person would benefit from the Children’s Disability Services program (the CDS program) which provides services to families caring for children with disabilities.

The child must live with a parent or relative; respite care, counselling and therapy are provided. The young person was accepted into the program but, before he could receive the benefit of it, he was voluntarily placed by his grandparents with child welfare officials. His criminal behaviour in the spring of 2014, combined with the fact that he was no longer living with a parent or relative, made involvement with the CDS program impossible. [ 35 ] According to his probation officer, the young person presents as a very high risk to reoffend.

His risk factors include difficulty in learning, susceptibility to negative peer influences, an aggressive personality and substance abuse. [ 36 ] During his two-year period of pre-sentence custody, he was a disruptive inmate at the two youth facilities where he was held. There were numerous disturbances, including several occasions where he threatened staff and inmates that he would kill them and kill and rape their family members. While in custody, authorities had concerns that the young person had suicidal ideation and viewed him as a high risk for suicide. [ 37 ] According to Dr.

Fisher, the young person is not a good candidate for either community-based supervision or correctional programming. In a community setting, he is unlikely to exercise good self-control, as has been the experience with him historically. In an institutional setting, Dr. Fisher believes the young person would have difficulty translating information into pro-social habits when released from custody because the way he learns is more visual than verbal. Dr.

Therrien believes the young person requires “a relatively comprehensive 24-hour management plan that will provide constant supervision, monitoring and guidance”. [ 38 ] The rehabilitative plan advanced by counsel for the young person was that, after completing the custody portion of either his adult or youth sentence, the young person would get the necessary structure and support by living with his grandparents under conditions of probation. Application would then be made to the CDS program to provide assistance.

On turning 18 years old, counsel suggested that the young person could then transfer from the CDS program to another provincial program, Adult Special Services, which provides similar services but to adults. [ 39 ] The young person’s post-sentencing conduct was put before the Court at the hearing of the appeal by the agreement of the parties. The young person was released from custody on completion of the imprisonment component of the adult sentence on December 7, 2016.

Approximately two weeks later, he violated his curfew requirements of his probation and was later arrested and charged for failing to comply with a youth sentence (section 137 of the YCJA ). He spent several weeks in custody and then pleaded guilty to the offence, receiving a one-day sentence taking into account the equivalent of 29 days of pre-sentence custody. He was released from custody on January 23, 2017. Over the course of the following month, he breached his curfew on several occasions and, as of the hearing of the appeal, was considered to be whereabouts unknown with an outstanding arrest warrant.

The young person’s probation officer had made multiple attempts to locate him without success. [ 40 ] The young person did not attend his appeal despite knowing of the date. His counsel was prepared to proceed in his absence. The Court was advised that his grandparents have lost contact with him. The young person had also not been in contact with probation services for several weeks as he was required to do. Therefore, the young person’s circumstances, as of the hearing date of the appeal, are that he is a fugitive in breach of the conditions of his probation orders.

He is not living with his grandparents, he is not attending school, he is not complying with his probation orders and he has essentially decided to live unsupervised in the community. He will turn 18 years old on November 3, 2017. Standard of Review [ 41 ] A sentence appeal may be taken of an order as to whether to impose a youth sentence or an adult sentence (see sections 37(4), 72(5) of the YCJA ).

The decision pursuant to section 72(1) of the YCJA whether to impose an adult sentence on a young person is governed by the same standard that applies to other sentence appeals (see R v H (CT) , 2015 MBCA 4 at paras 18-20 ; R v Whiteway (BDT) et al , 2015 MBCA 24 at para 73 ; R v Anderson , 2015 MBCA 30 at para 9 ; and R v DB , 2008 SCC 25 at para 101 ).

In R v Houle , 2016 MBCA 121 , the standard of review for sentence appeals was stated as follows (at para 11): The law affords a sentencing judge great latitude in tailoring a sentence to the offence and the offender ( 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).

The Young Person’s Appeal Adult Sentences for Young Persons—General Principles [ 42 ] The underlying purpose of the YCJA , as it was originally crafted by Parliament, was to restrict the use of custody in sentencing a young person (see R v CD; R v CDK , 2005 SCC 78 at paras 34-37 ). Parliament intended that there be a reduction in reliance on custodial sanctions for non-violent young persons. The custodial sanction was reserved only for violent or serious repeat offenders (see R v BWP; R v BVN , 2006 SCC 27 at paras 35-36 ; and DB at para 44).

On October 23, 2012, amendments to the YCJA came into force based on the Safe Streets and Communities Act , SC 2012, c 1. Three aspects of those amendments are relevant to this appeal. Relevant 2012 Amendments to the YCJA [ 43 ] First, the previous wording of section 3(1)(

a) of the YCJA viewed the goal of the youth criminal justice system to be the “long-term protection of the public” by preventing crime, rehabilitating and reintegrating young persons, and ensuring that they are subject to meaningful consequences for an offence. The amended version of section 3(1)(

a) provides: Declaration of Principle 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; [ 44 ] The statutory responsibility of youth justice court judges is to ensure that the public is protected in both the short and long term.

This is to be done by holding young persons accountable through proportionate measures, promoting their rehabilitation and reintegration, and referring them to local resources to address the circumstances underlying their offending behaviour. [ 45 ] It is important to note, however, that section 3(1)(

a) of the YCJA is not the equivalent of

section 718.1 of the Code , which defines proportionality as the fundamental principle in adult sentencing. While Parliament has considered enacting a hierarchy of sentencing principles under the YCJA , it has never done so; rather, protection of the public is but one of four conflicting sets of principles set out in

section 3. It must also be read in conjunction with the

preamble and Parts 1, 4 and 5 of the YCJA and the overall objective of the YCJA as discussed in CD ; CDK . [ 46 ] The effect of the language of the YCJA is that it should be presumed that Parliament intended that the various parts of

section 3 of the YCJA would work together coherently and harmoniously (see R v LTH , 2008 SCC 49 at para 47 ). Because there are several sentencing principles encapsulated in

section 3, it is legally insignificant that protection of the public is the first principle mentioned in

section 3 of the YCJA (see Nicholas Bala & Sanjeev Anand, Youth Criminal Justice Law , 3rd ed (Toronto: Irwin Law,

2012) at 102, 115). There is no text in the legislation suggesting that protection of the public has prominence over other parts of section3 or other relevant parts of the YCJA, such as

section 38. To give special status to section 3(1)(

a) of the YCJA would run contrary to themodern principle of statutory

interpretation that, “the words of

an Act are to be read in their entire context and in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd(Re), (SCC), [1998] 1 SCR 27 at para 21). Therefore, section 3(1)(

a) cannot be interpreted in isolation; rather, themeaning of the provision must come from its text, its context to the rest of the statute and the objective of the YCJA (see Quebec(Minister of Justice) v Canada (Minister of Justice), (2003) (QC CA), 175 CCC (3d) 321 at paras 139-151 (QCA)). [47] Because there is no fundamental principle in the sentencing of young persons, the effect of the 2012 amendments to theYCJA should not be overstated.

The focus of sentencing under the YCJA remains about balancing conflicting principles to arrive at asentence tailored to the individualized circumstances (see R v P (LR) (2004), 2004 NBCA 76 , 200 CCC (3d) 472 at para 3(NBCA); and Quebec (Minister of Justice) at para 131). To some degree, the 2012 amendments represent a philosophical shift in theYCJA, but it is not a tectonic one for sentencing non-violent and non-repeat offenders.

The Hon Rob Nicholson, Minister of Justice andAttorney General of Canada, advised Parliament that the intent behind the 2012 amendments to the YCJA was “to strengthen its handlingof violent and repeat young offenders” (House of Commons Debates, 41st Parl, 1st Sess, No 017 (21 September , 2011) at 1525).

In myview, the revised wording of the YCJA still has at its core the philosophy that the custodial remedy is a last-resort option (see section39(2) of the YCJA), reserved for a discrete type of offender and, when used, it must be for the shortest duration possible in thecircumstances. [48] A second relevant aspect of the 2012 amendments to the YCJA is that Parliament codified the principle of thepresumption of diminished moral blameworthiness of young persons, which was recognized as a principle of fundamental justice undersection 7 of the Canadian Charter of Rights and Freedoms in the DB decision. Section 3(1)(

b) of the YCJA provides: Declaration of Principle 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, must be based on the principle of diminishedmoral 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 ofmaturity, (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; [49] The common theme that distinguishes the differing features of the criminal justice system for adults from that whichapplies to those between the ages of 12 and 18 is that young persons are presumed to have diminished moral blameworthiness orculpability (see DB at paras 41-45).

As was explained in DB, a separate criminal justice system for youths is based on the concept that,“because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment” (at para41). Accordingly, the sentencing of young persons must begin from the presumption of diminished moral blameworthiness orculpability, but that presumption is rebuttable (at para 45). [50] The principles in section 3(1)(

b) of the YCJA work to qualify the operation of the principle of accountability in section3(1)(a)(

i) of the YCJA (see Bala & Anand at 120). A young person is presumed to be less accountable for his or her offending behaviourthan would be an adult committing the same crime. Accordingly, ascertaining fair and proportionate accountability is an exercise ofjudicial discretion that requires consideration of the presumption of diminished moral blameworthiness or culpability in light of the

circumstances of the offence and offender to decide to what degree, if at all, the presumption has been rebutted.

The practical effect of Parliament’s use of this statutory language is that the starting point in sentencing young persons is that they will receive a less severe sentence than would a similarly situated adult offender (see Sherri Davis-Barron, Youth and the Criminal Law in Canada , 2nd ed (LexisNexis, 2015) at 162-63). [ 51 ] The other 2012 codification of the principle of the presumption of diminished moral blameworthiness of young persons as a result of the DB decision was in a revised version of section 72(1) of the YCJA , which sets out the test for a youth justice court judge to apply in deciding whether to sentence a young person as an adult: 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 would not be of sufficient length to hold the young person accountable for his or her offending behaviour. [ 52 ] The amended version of section 72(1) of the YCJA has created some controversy as to whether a youth justice court judge is to take a blended analysis of moral blameworthiness and accountability, as opposed to the inquiry being a two-pronged test. At the hearing of the appeal, the Crown argued for the former approach while the young person said it was the latter. In my view, the position of the young person is the correct

interpretation of the legislation post-amendment. The Crown’s onus under section 72(1) of the YCJA is a two-pronged test involving separate inquiries but where there is some overlap in the relevant factors to consider. I agree with the following comments of Epstein JA in R v MW , 2017 ONCA 22 (at paras 94-95 ): As previously indicated, in 2012, the wording of the test for an adult sentence in s. 72 of the YCJA changed to incorporate the holding in D.B . The two parts of the test were left unchanged.

Since D.B., to sentence a youth as an adult, the Crown must overcome the Presumption and must satisfy the youth court judge that a sentence under the YCJA would not be sufficient to hold the offender accountable for his or her criminal conduct. What did change is that the pre-2012 test was set out in a way that allowed for a blended analysis of the Presumption and of accountability, whereas the new test is expressly structured as a two-pronged test in which the Crown must satisfy both prongs.

I have made a point of returning to the change in the legislation, with particular focus on the two separate prongs, as it provides the foundation for my view that the analysis of whether the Crown has overcome the Presumption and has satisfied the accountability test are best dealt with as separate inquiries. As I will explain, undertaking separate analyses of each prong is important. The two prongs address related but distinct questions and, although similar factors are applicable to both, there is not a complete overlap.

It is not necessarily the case that every factor relevant to an assessment of whether a youth sentence would hold a young person accountable is relevant to the question of whether the Crown has rebutted the Presumption.

See also R v BJA , 2016 MBQB 207 at paras 11 , 17. [ 53 ] The risk of engaging in a blended analysis of moral blameworthiness and accountability, as opposed to a two-pronged approach, is that an adult sentence could be imposed where a serious offence is committed that may warrant an adult sentence to hold the young person accountable but his or her exercise of judgment in committing the offence was not sufficiently adult-like, or the reverse scenario where the young person displayed a high degree of moral blameworthiness but the offence is less serious and a youth sentence would hold him or her accountable (see MW at para 105).

As Epstein JA explained in MW (at para 106): However, as closely connected as the two prongs — the Presumption and the issue of accountability — are, there is a risk associated with considering the Crown’s application to have the young person sentenced as an adult in a blended analysis in which the Presumption and accountability are dealt with together.

The risk is that a factor relevant only to one of the two prongs may be relied upon to support a finding in relation to the other. [ 54 ] The two-pronged test approach also ensures that a Charter right is properly respected and given priority in the adult sentencing hearing as it must be. If the Crown cannot rebut the presumption of diminished moral blameworthiness, a youth justice court judge’s task is completed; the Crown’s application for an adult sentence must be dismissed and a youth sentence imposed (see section 72(1.1) of the YCJA ).

The Crown’s application cannot be “saved” by the fact that a youth sentence may not seemingly hold a young person accountable for a very serious offence. There are no excluded offences, including murder, from the operation of the YCJA .

Proper respect would not be shown to the young person’s Charter rights simply on the basis that there is a perception that he or she is being treated more leniently by the law than would be the case for an adult. Accountability for a young person is reached by a different approach, but the law does not view young persons as less accountable for their behaviour than an adult (see DB at para 93). [ 55 ] The third 2012 amendment to the YCJA relevant for this appeal is in relation to sentencing principles of denunciation and specific deterrence.

As was explained in R v Proulx , 2000 SCC 5 , “[d]enunciation is the communication of society’s condemnation of the offender’s conduct” (at para 102). See also R v T (C) , 2006 MBCA 15 at para 24 .

Specific deterrence is the principle of sentencing concerned with the necessity of discouraging the offender in question from criminal conduct in the future (see BWP; BVN at para 2; and Cartaway Resources Corp (Re) , 2004 SCC 26 at para 52 ). [ 56 ] Previously, the sentencing principles of denunciation and deterrence played no role in sentencing a young person given the former wording of the YCJA (see BWP; BVN at para 40; and R v AAZ , 2013 MBCA 33 at para 49 ). That has now changed.

Specific deterrence (but not general deterrence) and denunciation now are sentencing objectives under the YCJA subject to the principle of proportionality. Section 38(2) provides that: 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: . . . (

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

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. [ 57 ] The language of section 38(2)(

f) of the YCJA is important. Not only are the sentencing objectives of specific deterrence and denunciation subject to the principle of proportionality, but reliance on those two considerations is not mandatory, it is discretionary (see Davis-Barron at 365-66). A youth justice court judge may take into account the objectives of denunciation and specific deterrence, but he or she is not mandated to do so (see R v TRK , 2016 MBCA 14 at paras 15-16 ). [ 58 ] Resort to the objectives of denunciation and specific deterrence in section 38(2)(

f) in sentencing a young person must also be consistent with the principle of diminished moral blameworthiness or culpability (see section 3(1)(

b) of the YCJA ). Again, when the impact of the 2012 amendments to the YCJA is properly assessed, it does not signal a departure from the historical purpose of the legislation being a limited use of custodial sanctions for offending behaviour. The relevance of these amendments is focussed on a very narrow set of violent and/or repeat offenders. The Test for Imposing an Adult Sentence [ 59 ]

Section 64 of the YCJA governs the procedure for an application to seek the imposition of an adult sentence for a young person. The provision sets out a limitation period for making the application, requires prior notice be given of the intention to make the application, and restricts the application to young persons who are at least 14 years old and who are charged with an offence that, if they were adults, would make them potentially liable to a term of imprisonment of more than two years. Once the application for an adult sentence is made, a youth justice court judge must hold a hearing on the application unless the application is not opposed (see

section 71 of the YCJA ). [ 60 ] The onus to satisfy both requirements of section 72(1) rests on the Crown (see section 72(2) of the YCJA ). As previously mentioned, if the judge is not satisfied that both requirements of section 72(1) have been satisfied, a youth sentence must be imposed (see section 72(1.1) of the YCJA ). [ 61 ] The task placed on a youth justice court by Parliament under section 72(1) of the YCJA is a difficult and delicate one. In R v BL , 2013 MBQB 89 , I explained the nature of the onus on the Crown under section 72(1) of the YCJA in the following manner (at para 36):

The Crown bears the onus of proof in this application. See s. 72(2) of the YCJA . The onus to order a young person liable for an adult sentence is neither proof beyond a reasonable doubt nor proof on a balance of probabilities. Rather, the standard is one of satisfaction after careful consideration by the court of all the relevant factors. See R. v. O. (A.); R. v. M. (J.) , 2007 ONCA 144 , 84 O.R. (3d) 561 at paras. 34-38 (C.A.), and R. v. D.D.T. , 2010 ABCA 365 , 265 C.C.C. (3d) 49 at para. 7 (C.A.).

However, the Crown must prove beyond a reasonable doubt any underlying aggravating factors relied on for the court’s ultimate determination. See D.B. at para. 78 . See also H (CT) at para 26 ; and Anderson at para 11 . [ 62 ] On the question of the first requirement of section 72(1) of the YCJA , rebutting the presumption of diminished moral blameworthiness, “the Crown must demonstrate to the court’s satisfaction that the young person had the moral capacity of an adult at the time of the offence(s). Relevant are the circumstances of the offence(

s) and the young person” ( BL at para 38) as to whether adult-like judgment was exercised (see DB at para 77; MW at paras 96-98; and R v JFR , 2016 ABCA 340 at para 25 ). [ 63 ] The comments of Abella J in DB ; and AC v Manitoba (Director of Child and Family Services) , 2009 SCC 30 , are helpful in determining whether a young person engaged in adult moral judgment when committing an offence. The starting point is of course the presumption that he or she did not. The law presumes that, “ because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment” ( DB at para 41). That said, the presumption in section 72(1)(

a) of the YCJA is a rebuttable one. Whether a young person has exercised adult moral judgment in a particular instance in his or her life is a case-specific and contextual exercise (see AC at para 4). Assessment of the decision-making of young persons is a situation where the youth justice court judge must engage in careful fact finding relating to the offence and the offender. [ 64 ] The second aspect of the inquiry under section 72(1) of the YCJA relates to accountability.

The overarching concern of the youth justice court judge is the relationship between the concepts of proportionality and rehabilitation in the given case (see AAZ at paras 56-57, 65). The relevant legislative provisions of the YCJA to consider are as follows: 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, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: . . . (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, Sentencing Purpose and Principles 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. [ 65 ] The consequence of the fact that section 72(1)(

b) of the YCJA asks the youth justice court judge to consider the principles in sections 3(1)(b)(ii) and 38 is that there is a weighing of factors in the decision to impose an adult sentence similar to what

also occurs in the imposition of a youth sentence. [66] In R v ZTS, 2012 MBCA 90, this Court accepted the Ontario Court of Appeal’s definition of accountability under theYCJA as being the equivalent of the adult sentencing principle of retribution (see para 65).

In R v O (A); R v M (J), 2007 ONCA 144, theCourt explained the concept of accountability in the following manner (at paras 47-50): 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 way formeasuring accountability.

The need to consider the normative character of an offender's behaviour necessarily requires the court to consider societal values. Butwhat the court cannot do is add on to a youth sentence an element of general deterrence or denunciation. This concept of accountabilityis consistent with this court's decision in R. v. W. (R.E.) (2006), (ON CA), 79 O.R. (3d) 1, [2006] O.J.

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

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

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

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

If the Crown provesthat a youth sentence would not be long enough to achieve these goals, then an adult sentence must be imposed. [67] The approach taken in O (A); M (

J) is an “offender-centric” perspective to accountability. However, it would be toodrastic to say that the interests of society were irrelevant in the assessment of accountability before the 2012 amendments to the YCJA. Ithas always been a facet of the concept of accountability that, for serious offences involving violent crime, a youth sentence mustpromote, not undermine, public respect for the administration of justice (see BL at paras 81-83). [68] In light of the 2012 amendments to the YCJA, youth sentencing is now “not entirely ‘offender centric’” (R v SNJS, 2013BCCA 379 at para 28).

A youth justice court judge may, but not must, consider the sentencing objectives of denunciation and specificdeterrence. [69] In some cases, where there is not diminished moral blameworthiness, due to the serious nature of the offence or thelengthy criminal history of the young person, it may be very difficult for the youth justice court judge to impose a proportionate sentencewithout giving appropriate weight to the objectives of denunciation and/or specific deterrence. This new feature of the YCJA must,however, be understood properly in its limited context and applied cautiously in practice.

Parliament has not called for increasing therate of incarceration of young persons or changing its approach to sentencing for the vast majority of young persons who fall into troublewith the law. Rather, it has built measures into the YCJA to address deficiencies in the process that it perceived existed in relation to asmall but important subset of offenders, those committing serious crimes or serial offenders, where the presumption of diminished moralblameworthiness is rebutted in relation to the particular offence(s). This is entirely in keeping with this aspect of the

preamble of theYCJA: AND WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interestsof victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and

reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons; [ 70 ] The other factor to consider is that proportionality is not the only consideration in determining accountability.

As previously stated, accountability is about the relationship between proportionality and rehabilitation (see AAZ at paras 54-55). [ 71 ] Recently, Steel JA in H (CT) explained the approach that youth justice court judges should take in making a determination as to accountability (at para 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). The Young Person’s Moral Blameworthiness [ 72 ] Central to this appeal is the question of the legal effect of the young person’s cognitive limitations; particularly the fact he suffers from ARND.

A reduction of moral blameworthiness for the purposes of sentencing, either for an adult or a young person, due to a recognized and properly diagnosed mental illness or other condition where the functioning of the human mind is impaired, is a “fact- specific” case-by-case determination as opposed to an automatic rule that the mental illness or cognitive limitation necessarily impacted the commission of the offence in question (see R v Roulette , 2015 MBCA 102 at para 7 ; R v Friesen , 2016 MBCA 50 at para 23 ; R v Manitowabi , 2014 ONCA 301 at paras 55-57 ; R v Ellis , 2013 ONCA 739 at paras 107-127 ; R v Ramsay , 2012 ABCA 257 at paras 33-39 ; R v Branton , 2013 NLCA 61 at para 35 ; and R v MJH , 2004 SKCA 171 at para 29 ). [ 73 ] Ascertaining the moral blameworthiness of an offender with a mental illness or some other form of cognitive limitation is a tactful and considerate exercise.

Sentencing judges must avoid committing one of two obvious errors in principle. The first is being indifferent to the question of whether an offender’s mental circumstances affected his or her degree of responsibility. The other error in principle is the reverse situation, namely, assuming an offender’s moral blameworthiness for an offence is reduced automatically because he or she has a mental illness or other cognitive limitation.

It is suggested that, when sentencing offenders with a mental illness or some other form of cognitive limitation, such as a form of FASD, sentencing judges keep separate and properly assess the following questions: 1. Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2. Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct? 3.

Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct.

See R v Ramsay , 2012 ABCA 257 at paras 19-39 ; R v Draper , 2010 MBCA 35 at para 20 ; and Manitowabi at para 64 . [ 74 ] Inadequacies in the record may be remedied by the sentencing judge requiring production of evidence to assist him or her in making an informed judgment about the relevance of the offender’s mental circumstances (see section 723(3) of the Code or

section 34 of the YCJA ) or, failing that, fact finding based on the record that does exist in light of the requisite burden of proof (see section 724(3) of the Code ; and R v Kunicki , 2014 MBCA 22 at paras 21-26 ).

What becomes important from the perspective of an appellate court is did the sentencing judge make an evaluation of whether the offender’s degree of responsibility for the offence was affected by his or her mental illness, or some other form of cognitive limitation, and, if so, does the record reasonably support the sentencing judge’s conclusions? [ 75 ] In this case, after reviewing the background of the young person in great detail, the judge noted that he has a pattern of violent behaviour where he is the “instigator or a leader” of the criminal activity.

She distinguished a number of cases where the presumption of diminished moral blameworthiness had not been rebutted by the Crown and then stated: J.M.O. is a very different offender. He had a supportive and stable upbringing, although certainly not one without its challenges. His behaviour has been violent and problematic from a very young age and he had a criminal record at the time of these offences. His criminal behaviour has escalated and continues even in the custodial setting. He was a leader in the offences before the court, offences that involved some degree of planning.

He has shown very little victim empathy or remorse over and above his guilty plea and the remark that he felt badly that the store clerk lost control of his bladder out of fear. And J.M.O. has not shown improvement while in custody. [ 76 ] The judge turned her mind to the young person’s mental circumstances at the time of the armed robberies. She dealt

with the opinion of Dr. Fisher that, in his view, the young person does not always appreciate the impact of his actions by concluding thatdoes not necessarily mean he had diminished moral blameworthiness or culpability all of the time. She stated: “Whether he alwaysappreciates the impact or consequences of his actions, I am satisfied that he is nonetheless capable of choosing to engage in serious andviolent criminal behaviour.” [77] The judge determined that the key evidence as to the young person’s moral blameworthiness or culpability came fromthe young person himself.

In her view, during the commission of the offences, “he acted with confidence and determination”.

Shereviewed the record and then stated: “All of this evidence satisfies me that despite the ARND and ADHD and the other real and notinsignificant challenges he faces, the presumption of diminished moral blameworthiness or culpability in this specific context for thisoffender has been rebutted.” [78] The judge’s reasons here demonstrate that she took into account the voluminous evidence before her as to the youngperson’s background, including the various assessments that indicated that he is generally immature for his age, his ARND and ADHDdiagnoses, and his general cognitive limitations. [79] The young person’s submission that he should not have received an adult sentence simply because of his cognitivelimitations, such as ARND, is unpersuasive.

There have been many cases where adult sentences for serious violent crimes have beengiven to young persons having significant mental disabilities or cognitive limitations where the facts warrant such a sentence (see H(CT); BL; R v MJM, 2016 MBQB 36; R v BKTS, 2009 MBQB 56; and R v DVJS, 2013 MBPC 34). [80] Moreover, the judge’s findings that the young person planned, instigated and was the leader in the two armed robberiesare reasonably supported on the record. He advised his probation officer that the robberies were his idea, he did not regret the role heplayed in the crimes and that it was “fun”.

The attempt to disguise his identity during the first armed robbery also demonstrates a degreeof planning and premeditation as opposed to spontaneity (see R v BKTS at para 23; and R v RL, 2009 MBQB 137 at para 22). [81] The facts here are quite different than R v Laquette, 2015 MBQB 79, which the young person relies on, where theaccused (who was a schizophrenic, was borderline mentally retarded and who also suffered from a form FASD) was not the individualwho orchestrated a violent attack; rather, that accused, because of his large size, was used by others as a weapon to further their plan toharm the victim. [82] Another important piece of evidence that the young person planned these offences is that he armed himself with aweapon in each of the robberies and pled guilty in relation to each robbery to an offence of possession of a weapon for a dangerouspurpose contrary to

section 88 of the Code. Lamer J (as he then was) explained that offence in R v Cassidy, (SCC),[1989] 2 SCR 345 this way (at p 351):

Section [88] requires proof of possession and proof that the purpose of that possession was one dangerous to the public peace. Theremust at some point in time be a meeting of these two elements. Generally, the purpose will have been formed prior to the taking ofpossession and will continue as possession is taken. [83] It is not uncommon for the young person to be armed. According to the assessments of Dr. Fisher and Dr. Therrien, theyoung person feels “quite vulnerable in the community” and normally carries weapons for the purpose of “self-protection”.

However,possession of a weapon for defensive purposes is not necessarily the offence of possession of a weapon for a dangerous purpose contraryto

section 88 of the Code (see R v Kerr, 2004 SCC 44). [84] When the guilty pleas to the two

section 88 offences were entered, the presiding youth justice court judge inquired as towhether the knife used in the convenience store robbery was possessed “for a purpose other than robbery”. Counsel for the youngperson advised that the “agreement” was that the knife was possessed for the purpose of robbery and not some other purpose.

The sameadmission was made in relation to possession of the air gun for the armed robbery of the university students. [85] Accordingly, on the record that was before the judge, the intention of the young person for possessing the weapons wasnot for a defensive purpose because he felt vulnerable and wanted to defend himself; in fact, the situation was quite the opposite.

Theyoung person decided to arm himself and then use the weapons for the dangerous purpose of facilitating robberies through eitherintimidation (in the case of the armed robbery of the convenience store) or gratuitous violence to defeat resistance (in the case of thearmed robbery of the university students). That offensive mindset cannot be described as impulsive or spontaneous. This fact evidencesplanning and calculation of the consequences of criminal behaviour.

Moreover, in the case of the second armed robbery, rather thanretreat at the first sign of resistance, he chose to escalate the situation by using a weapon. All of these facts are evidence of the exerciseof adult-like judgment which supports the decision of the judge. [86] The young person also blames his placement by child welfare officials in a motel with minimal supervision as anextenuating factor.

It is self-evident that the placement of an adolescent by child welfare authorities in a motel, for anything beyond avery brief amount of time (as opposed to the placement here that went on for weeks), is an unsound practice. That said, thecircumstances here are that, prior to the temporary motel placement, the young person already had a well-established criminal lifestyle ofusing drugs, carrying weapons, engaging in crime and associating with gang members.

As previously mentioned, he also had “someinsight” into the relationship between his anti-social behaviour and reoccurring involvement in the criminal justice system. While I agreewith defence counsel that the temporary placement in a motel with minimal supervision was a relevant factor for the judge to consider, Iam not persuaded that she placed too little weight on the risks associated with the young person’s temporary housing placement. [87] There is no question here that the record before the judge was conflicting.

The judge was alive to the young person’sargument that much of what he said about his behaviour was bravado and what he did was impulsive. Indeed, his discussions with thepsychologists paint the picture of an immature adolescent suffering from a cognitive limitation who would present as someone who

would be an example of possessing diminished moral blameworthiness. However, there was also evidence to the contrary that came from his probation officer and the young person’s behaviour outside a clinical environment, both on the street and in custody, that painted a different picture of the young person being a violent criminal prepared to prey on others as opportunities arose. [ 88 ] The art of sentencing is all about the careful weighing of relevant factors. An appellate court cannot interfere “simply because it would have weighed the relevant factors differently” ( Lacasse para 49 ).

In my view, when the judge’s reasons are considered in light of the record, the relevant provisions of the YCJA and the standard of review, there is no basis to interfere with her conclusion that the Crown had satisfied its burden to rebut the presumption of diminished moral responsibility (see section 72(1)(

a) of the YCJA ).

Adequacy of a Youth Sentence to Hold the Young Person Accountable [ 89 ] The maximum combined youth sentence that could be imposed for the three robbery offences relating to the two armed robberies, if consecutive sentences were imposed for the different offences, would be three years on top of the two years of pre-sentence custody (see sections 38(3)(d), 42(15) of the YCJA ; R v P (NW) , 2008 MBCA 101 at para 23 ; R v IRN , 2011 MBCA 31 at paras 18-19 ; and AAZ at para 147). [ 90 ] In her reasons, the judge referred to the principles in sections 3(1)(b)(ii) and 38 of the YCJA and then made the following statement of the importance of the relevant factors as to accountability: J.M.O.'s charges are serious, as the range of available adult sentences illustrates.

His moral blameworthiness for those offences is high. I am satisfied that his behaviour, attitude, character, maturity and degree of responsibility are significant problems for the prospect of any easy rehabilitation and reintegration into the community. Drug and alcohol use have also been factors in his young life, but the troubling and violent behaviour has continued even while he is in custody and sober.

And while I agree with defence counsel that he is more dependent on others than other youths his age may be, he shows no willingness to accept that reality and, in fact, responds to all such attempts with aggression and defiance. That pattern of behaviour has been seen by his caregivers, his schoolteachers and his assessors since he was very young, and given his behaviour in the Youth Centre, continues even now.

Counselling has been suggested, but it is clear that his cognitive difficulties will significantly complicate that process should J.M.O. even agree to attend. [ 91 ] The judge then made the following comments about the sentencing principle of protection of the public: Protection of the public is an important consideration as well, and it is the overall goal of the Youth Criminal Justice Act as stated in

Section 3. The court is satisfied that the public is at risk now from J.M.O. and I am not assured that these risk factors will have been addressed at the end of two years in custody, given the evidence of Dr. Fisher and the probation officer and the behaviour of J.M.O. himself. Also, because the serious offences took place three days apart, consecutive sentences and not concurrent sentences will be a consideration in sentencing.

I am therefore satisfied that a youth sentence would not be sufficient to hold J.M.O. accountable for his offending behaviour. [ 92 ] The judge’s reasons show that, on the question of proportionality, she was concerned about the serious nature of the offences and the young person’s high moral blameworthiness. On the question of rehabilitation, she was concerned that his aggressive personality, other risk factors and lack of progress despite a lengthy period of pre-sentence custody made his prospects for rehabilitation and reintegration into the community dim.

Taking these considerations together, she concluded that protection of the public could not be achieved by a youth sentence. [ 93 ] The young person’s argument as to the importance of the principles of rehabilitation and reintegration under the YCJA glosses over the important fact that those principles always begin on the assumption that rehabilitation and reintegration are realistic in the circumstances.

As Professor Bala and Anand PJ explain (at 133-34): While prevention of crime, rehabilitation, and reintegration are important guiding principles for the youth justice system, their application must be realistic. Beyond the issue of whether access to appropriate rehabilitative resources, programs, and facilities is available (discussed more fully below), it is necessary to recognize that not all young offenders can be rehabilitated. Some youths lack the motivation, at least at some points in their lives, to engage in rehabilitative efforts.

Treatment professionals can try to engage a youth, but a resistant offender cannot be rehabilitated. Further, no program or facility can rehabilitate all young offenders. Some youths will reoffend despite their participation in any available rehabilitative regime. [ 94 ] The difficulty here is that it is unrealistic, given the record, to place much weight on factors such as rehabilitation and

reintegration. The idea of giving the young person a custodial youth sentence and no credit for his pre-sentence custody, which is a possibility under the YCJA , is not appropriate in the circumstances because, during his pre-sentence custody, the young person has made no positive efforts towards rehabilitation and reintegration that could support a decision to allow him to continue on his path towards a pro-social lifestyle through a youth, as opposed to an adult, sentence. [ 95 ] In my view, the judge’s prediction as to the young person’s future behaviour is reasonably supported by the record.

In this case, the factors of proportionality outweighed those of rehabilitation on the accountability assessment. I see no basis to interfere with the judge’s decision regarding section 72(1)(

b) of the YCJA . [ 96 ] Accordingly, while leave to appeal is granted, I would dismiss the appeal of the young person. The Crown’s Appeal The Sentence Imposed [ 97 ] The formula the judge used to reach a total of 29 months of pre-sentence custody was credit on a 1:1.2 basis. No issue is taken with the calculation of pre-sentence custody by either of the parties. I propose to adopt that calculation for the purposes of my decision. [ 98 ] The sentence the judge arrived at before totality amounted to a combined sentence of 48 months’ imprisonment calculated as follows: Youth Sentence—6 Months: 1.

section 137 YCJA— Fail to Attend, Participate and Complete Probation Program—May 27-June 2, 2014: 3 days ; 2.

section 137 YCJA— Fail to Attend, Participate and Complete Probation Program—June 10, 2014: 7 days consecutive ; 3.

section 137 YCJA —Fail to Attend, Participate and Complete Probation Program—June 22, 2014: 10 days consecutive ; 4.

section 137 YCJA —Curfew Breach—June 25, 2014: 30 days consecutive ;

Section 334 (

b) Code —Theft Under $5,000—June 25, 2014: 10 days consecutive ; 6.

section 267 (

a) Code —Assault with a Weapon—June 26, 2014: 90 days consecutive ; and 7.

section 137 YCJA —Reside as Directed Breach—June 29, 2014: 30 days consecutive . Adult Sentence—Total—42 Months: 1. sections 343 - 344(1) (

b) Code —Robbery with a Weapon—June 26, 2014: 18 months consecutive ; 2.

section 88 Code —Possession of Weapon for Dangerous Purpose—June 26, 2014: 18 months concurrent ; 3. section 351(2) Code —Disguise with Intent—June 26, 2014: 18 months concurrent ; 4. sections 343 - 344(1) (

b) Code —Robbery with a Weapon—June 29, 2014: 24 months consecutive ; 5. sections 343 - 344(1) (

b) Code —Robbery with a Weapon—June 29, 2014: 24 months concurrent ; 6.

section 88 Code —Possession of Weapon for Dangerous Purpose—June 29, 2014: 24 months concurrent ; and 7. section 145(3) Code —Failure to Comply with Condition of Undertaking—June 29, 2014: 30 days concurrent . [ 99 ] The final combined sentence after totality was 36 months’ imprisonment before credit for pre-sentence custody. That was reached by a combination of making some of the sentences concurrent and reducing some of the sentences: Youth Sentence—3 Months: 1.

section 137 YCJA —Fail to Attend, Participate and Complete Probation Program—May 27-June 2, 2014: 3 days concurrent ; 2.

section 137 YCJA —Fail to Attend, Participate and Complete Probation Program—June 10, 2014: 7 days concurrent ; 3.

section 137 YCJA —Fail to Attend, Participate and Complete Probation Program—June 22, 2014: 10 days concurrent ; 4.

section 137 YCJA —Curfew Breach—June 25, 2014: 30 days concurrent ; 5.

section 334 (

b) Code —Theft Under $5,000—June 25, 2014: 10 days concurrent ; 6.

section 267 (

a) Code —Assault with a Weapon—June 26, 2014: 60 days consecutive ; and 7.

section 137 YCJA —Reside as Directed Breach—June 29, 2014: 30 days consecutive .

Adult Sentence—Total—33 Months: 1. sections 343-344(1)(

b) Code—Robbery with a Weapon— June 26, 2014: 13 months consecutive; 2.

section 88 Code—Possession of Weapon for Dangerous Purpose—June 26, 2014: 13 months concurrent; 3. section 351(2) Code—Disguise with Intent—June 26, 2014: 13 months concurrent; 4. sections 343-344(1)(

b) Code—Robbery with a Weapon—June 29, 2014: 20 months consecutive; 5. sections 343-344(1)(

b) Code—Robbery with a Weapon—June 29, 2014: 20 months concurrent; 6.

section 88 Code—Possession of Weapon for Dangerous Purpose—June 29, 2014: 20 months concurrent; and 7. section 145(3) Code—Failure to Comply with Condition of Undertaking—June 29, 2014: 30 days concurrent. [100] After the reduction of the combined sentence by 29 months for pre-sentence custody, the young person was, asmentioned previously, left with a further seven months to serve to be followed by three years’ supervised probation. The probation orderwas made in relation to all 14 of the offences. [101] The judge also made various ancillary orders in relation to the young person.

None of those orders is appealed. Theyremain unaffected by the outcome of the appeals. Illegal Aspects of the Sentence Imposed [102] At the hearing of the appeal, the parties agreed that three aspects of the young person’s sentence were illegal. [103] First, all of the youth sentences did not comply with section 42(2)(

n) of the YCJA (see R v RIR M-M, 2008 BCCA 273). The judge simply imposed a period of custody for the youth sentences without imposing a second period of community supervision. Section 42(2)(

n) requires that a CSO consists of two periods: the first two-thirds to be served in custody, followed by one third to beserved under community supervision. When a CSO is pronounced, the judge must state the length of the two periods of the sentence(see section 42(4) of the YCJA). That did not occur in this case. The youth sentence imposed was entirely custodial (save for the periodof probation).

The effect of what the judge did is impose an adult sentence on the young person for the youth offences when many of theoffences were not eligible for an adult sentence, nor did the Crown seek one for those offences. [104] The second illegal aspect of the sentence imposed was that an adult sentence was imposed on the charge of failing tocomply with a condition of an undertaking on June 29, 2014 (see section 145(3) of the Code).

One of the conditions of an application foran adult sentence under section 64(1) of the YCJA is that the offence is one that an adult is liable to a term of imprisonment “of morethan two years”. The offence of failing to comply with a condition of an undertaking does not meet the criteria of section 64(1) of theYCJA because the maximum sentence for that offence for an adult is “imprisonment for a term not exceeding two years” (see section145(3) of the Code).

A youth sentence was mandatory for the offence based on the wording of section 64(1). [105] The third illegal aspect of the sentence imposed was that the period of probation set in relation to the youth offences wasfor a period of three years. A probation order made under the YCJA can only be for two years and begins on the day on which it is madeor the day on which custody and supervision ends (see sections 42(2)(

k) and 56(5) of the YCJA). There is no other mechanism in theYCJA to delay the commencement of a probation order while another one is running; therefore, it is impossible for a young person toface the prospect of more than two years of probation on any given day. Moreover, the YCJA lacks a provision, as did the YoungOffenders Act, SC 1980-81-82-83, c 110, authorizing imposition of consecutive periods of probation all together (see R v L (TS) (1988), (NS CA), 46 CCC (3d) 126 at 127 (NSCA); and R v AJA, 2002 NSCA 54).

Analysis of the Young Person’s Adult Sentence [106] I agree with the Crown that, because of the judge’s material errors in arriving at the sentence, it is necessary for thisCourt to re-sentence the young person. In addition to imposing a sentence that was, in part, illegal, the judge made a reversible error asto how she dealt with the mental circumstances of the young person in crafting the sentence. In her reasons, she stated: Decisions like Laquette, 2015, Manitoba QB decision from — QB 79 and Friesen 2016 [M]BCA 50, emphasize the importance ofbalancing conflicting interests.

The need to recognize the disability and any resulting diminished moral culpability while at the same timeprotecting the public. [107] As previously explained, there is no question that a mental illness or some other form of cognitive limitation can impacta sentence by diminishing an offender’s moral culpability or, alternatively,

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