R v R.D.F., 2019 SKCA 112

Restriction on Publication An order has been made in accordance with s. 74(2) of the YCJA directing that any information identifying the young person shall not be published until the appeal period is complete. Court of Appeal for Saskatchewan Docket: CACR3131 Citation: R v R.D.F. , 2019 SKCA 112 Date: 2019-10-31 Between: R.D.F. Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Jackson and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr.

Justice Tholl In concurrence: The Honourable Chief Justice Richards In dissent: The Honourable Madam Justice Jackson On Appeal From: 2018 SKPC 28 , La Loche Appeal Heard: April 11, 2019 Counsel: Aaron Fox, Q.C., and Darren Kraushaar for the Appellant Beverly Klatt for the Respondent THOLL J.A. I. Introduction [ 1 ] On January 22, 2016, RDF murdered his two cousins. He then drove to the La Loche Community School where he went on a shooting rampage. When he was finished, a teacher and a teacher’s aide were dead, seven other people were wounded and a community was devastated.

RDF was 15 days short of his 18th birthday at the time. [ 2 ] RDF pleaded guilty to two counts of first degree murder, two counts of second degree murder and seven counts of attempted murder. Pursuant to s. 64 of the Youth Criminal Justice Act , SC 2002, c 1 [ YCJA ], the Crown applied for an order that RDF be sentenced as an adult.

At the conclusion of the hearing, the sentencing judge found the Crown had established the two requirements under s. 72(1) of the YCJA , i.e., the presumption of diminished moral blameworthiness or culpability had been rebutted and it had been established that a youth sentence would not be of sufficient length to hold RDF accountable for his offending behaviour. Accordingly, she sentenced RDF as an adult. [ 3 ] On appeal, RDF asserts the sentencing judge erred in determining he should be sentenced as an adult.

He submits the sentencing judge erroneously intermingled the two requirements of s. 72(1) of the YCJA and thus erred in determining the Crown had rebutted the presumption of diminished moral culpability under s. 72(1) (a). RDF further submits the sentencing judge erred in her assessment of his moral culpability by misconstruing and failing to apply the evidence regarding his cognitive ability, fetal alcohol spectrum disorder [FASD], mental disorders and Gladue factors. He also asserts the sentencing judge erred in not ordering a magnetic resonance imaging test [MRI].

Lastly, RDF submits the sentencing judge erred by failing to direct he be subject to an intensive rehabilitative custody and supervision [IRCS] order pursuant to ss. 42(2) (

r) and 42(7) of the YCJA . [ 4 ] For the reasons that follow, I find the sentencing judge did not err in her conclusion that RDF should be sentenced as an adult. The appeal is dismissed. II. Background [ 5 ] The background facts are set out in detail in the sentencing judge’s decision, R v R.D.F ., 2018 SKPC 28 [ Sentencing Decision ], so I will provide only a brief

summary for context. [ 6 ] RDF was born in February of 1998. He was informally adopted by an aunt shortly after his birth. He is Indigenous and has resided in La Loche his entire life. His first language is Dene but he is fluent in English. He lived with his adoptive mother, her partner, two siblings and two foster children in a house in La Loche. His grandparents and two cousins, aged 13 and 17, resided across the street from his home. RDF attended La Loche Community School until January 22, 2016, and was in grade ten at the time of the offences. This was his third attempt at grade ten.

RDF did not have a criminal record or any prior involvement with the police. [ 7 ] On January 22, 2016, RDF went to school in the morning, returning home to eat lunch at noon. He had already formulated a plan to return to the school in the afternoon and go on a shooting rampage. He quickly ate lunch, gathered some ammunition and then went across the street to his grandparents’ house where he knew he could locate firearms. His 17-year-old cousin was alone in the home, eating his lunch. RDF took possession of a .22 calibre rifle and called his cousin to come down to the basement.

When his cousin came down to the basement, RDF shot him multiple times, pursued him upstairs and shot him again, killing him. He then took possession of a

more powerful rifle and loaded it. When he cycled the ammunition from the magazine into the chamber of the rifle, the mechanism jammed. RDF discarded this rifle and took possession of a shotgun and ammunition. He left the home, placed the shotgun in his aunt’s truck and was about to leave for the school when his 13-year-old cousin ran up to him and asked for a ride to school. RDF told his cousin to follow him back into the house. Once in the house, RDF shot and killed his 13-year-old cousin with the .22 calibre rifle. RDF then left the house and drove the two-minute drive to the school.

There were approximately 150 people in the school that day. [ 8 ] While driving to the school, RDF accessed a Facebook Messenger group chat and wrote he was “done with life”, had “just killed 2 ppl” and was “bout to shoot up the school”. When he arrived at the school, RDF initially went inside without the shotgun. Within one minute, he exited the school, retrieved the shotgun and extra ammunition and walked back towards the front entrance of the school. He started shooting before entering the school. He shot and wounded three students in the vicinity of the foyer of the main entrance.

He shot at the assistant principal, initially missing her, but hitting her with his second shot. The assistant principal ran into a classroom, closed the door and called the police. She then phoned the elementary school to advise them to lock down their separate building. [ 9 ] RDF shot back towards the front door and hit another student. He walked through the common area of the school and shot out a window. He entered the general office area where, finding a teacher, he shot him twice, killing him. RDF continued to walk through the school looking for other random people to shoot.

He checked various doors but found them to be locked. He twice fired the shotgun through the glass portion of a locked classroom door striking a teacher and a teacher’s aide with each shot. The teacher’s aide died from her injuries. Another teacher momentarily opened her classroom door, saw RDF and beckoned him inside believing him to be a student in danger from the shooter. When she realized RDF was the shooter, she immediately closed her door. RDF did not shoot at her because she was a teacher he liked. RDF saw a student running in the hallway and gave chase but the student escaped out a side door.

He then shot through another classroom window striking another teacher’s aide. [ 10 ] RDF continued to wander around the school and shot the large glass display case in the common area. At that point, an RCMP officer arrived and immediately entered the school. RDF saw the RCMP officer and retreated to a women’s washroom. He had only one unspent shotgun shell left. He contemplated suicide but decided against it. RDF abandoned the shotgun and surrendered to the police. He has been in custody since he was arrested. III. Youth Court Proceedings [ 11 ] RDF entered guilty pleas on October 28, 2016.

The Crown had previously provided notice, pursuant to s. 64(2) of the YCJA , that it would be seeking an adult sentence. Psychological assessments, psychiatric assessments and a pre-sentence report were ordered pursuant to ss. 34 , 40 and 72(3) of the YCJA . RDF’s counsel informed the sentencing judge he would be asking for an IRCS order under ss. 42(2) (

r) and 42(7) of the YCJA . [ 12 ] The sentencing hearing, pursuant to s. 71 of the YCJA , commenced on May 16, 2017. A lengthy agreed statement of facts was filed and nine witnesses testified over the course of the hearing. Fifty-two victim impact statements were presented. Several reports and other documents were filed. A Gladue report was ordered on June 16, 2017, and filed on August 25, 2017. RDF’s video statement to the police and surveillance video from the school were filed. Additional time was required for the evidence to be heard with the hearing ultimately being completed on October 20, 2017.

The sentencing judge reserved her decision and a written decision was delivered on February 23, 2018. The sentencing judge determined RDF should be sentenced as an adult. The matter was adjourned for the receipt of a placement report and sentencing. [ 13 ] On May 8, 2018, RDF was sentenced to concurrent terms of imprisonment for life for the four murder convictions and fifteen years incarceration, concurrent, for each of the attempted murder convictions. Pursuant to s. 745.1 (

b) of the Criminal Code , RDF is not eligible for parole for ten years. IV. Issues and STandard of Review [ 14 ] As a starting point, it is important to observe that this matter has not been appealed on the ground that the sentencing judge applied the wrong standard of proof to the presumption of diminished moral culpability under s. 72(1) (

a) of the YCJA . This was not listed as a ground of appeal and there were no submissions from either party on this issue. The sentencing judge set out the standard of proof in the Sentencing Decision as follows: [219] The Crown bears the burden of satisfying the youth justice court that an adult sentence should be imposed. The standard of proof under

section 72 is one of ‘satisfying the court.’ This burden is neither proof beyond a reasonable doubt nor one of balance of probabilities. The Court must be aware of the very serious consequences of an adult sentence, but this does not mean that the Crown must meet a “very heavy onus”. [220] Justice Mainella in R v Okemow , 2017 MBCA 59 at para 61 [ Okemow ] stated: [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.) [2007 ONCA 144]; 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. [221] If there are any aggravating factors they must be proven beyond a reasonable doubt. (See Okemow and R v McClements , 2017 MBCA 104 ).

[ 15 ] As noted in the quotation set out above from R v J.M.O. , 2017 MBCA 59 , 353 CCC (3d) 141 [ J.M.O. ], this is the standard of proof that has been explicitly accepted at the appellate level in Alberta, Manitoba and Ontario. This same standard was also applied by the British Columbia Court of Appeal in R v Chol , 2018 BCCA 179 at para 12 [ Chol ], where Stromberg-Stein J.A. accepted the description of the Crown’s burden from R v McClements , 2017 MBCA 104 , 356 CCC (3d) 79 [ McClements ], without modification or further comment.

In Saskatchewan, this standard of proof was applied at the trial court level in R v Prockner , 2017 SKQB 202 at para 73 , and was not commented on or disturbed on appeal to this Court in R v Prockner , 2018 SKCA 52 [ Prockner ].

I am satisfied that the sentencing judge’s determination of the standard of proof does not require this Court to intervene, on its own initiative, on this issue that was not raised or argued by either party: see R v Mian , 2014 SCC 54 , [2014] 2 SCR 689. [ 16 ] I note, as well, that RDF did not appeal on the basis that the sentencing judge applied the wrong burden of proof in considering s. 72 of the YCJA . No argument to this effect was identified in his notice of appeal or his factum or advanced in oral argument.

This, in my view, is understandable. [ 17 ] The sentencing judge made it clear that the burden of proof to displace the presumption of diminished moral blameworthiness or culpability was on the Crown. Under the heading “Burden and Standard of Proof”, near the beginning of her analysis of the s. 72 issue, the sentencing judge expressly said, “The Crown bears the burden of satisfying the youth justice court that an adult sentence should be imposed” (at para 219).

Then, in considering how s. 72 operates, the sentencing judge spoke directly to “a presumption of diminished moral blameworthiness” (at para 222) and did so under the subheading “Presumption of Diminished Moral Blameworthiness or Culpability”. In the next

section of her decision, “Application of

Section 72 – Has the Presumption Been Rebutted?”, the sentencing judge began by summarizing the Crown’s submissions as to why the presumption had been rebutted and, only after having done that, did she summarize the submissions of defence counsel on the issue. In other words, the trial judge did not begin with RDF’s submissions as to why the presumption was not rebutted.

She began, as one might expect if the burden were being applied properly, with the Crown’s arguments as to why the burden was rebutted. [ 18 ] In the course of going on to examine the various considerations relevant to the question of whether the presumption had been rebutted, the sentencing judge made occasional reference to RDF’s submissions . However, I do not take any of that to reveal a failure to apply the burden of proof, as expressly stated, to the overall question of whether the Crown had rebutted the presumption.

It was surely open to the sentencing judge, when considering a specific issue like whether RDF had been bullied, to set out the Crown’s position on one the hand and RDF’s on the other, before coming to a conclusion on the matter. [ 19 ] After considering the evidence bearing on the s. 72 analysis under the subheadings “Age, Maturity, Character, Background, Previous Record”, “Seriousness of Offence” and “Circumstances, Planning and R.F.’s Role”, the sentencing judge set out her assessment of RDF’s situation over the course of some 14 paragraphs.

She concluded by saying, “I am satisfied that the Crown has rebutted the presumption of diminished moral blameworthiness or culpability of R.F.” (at para 306). Given all of this, it is obvious that the sentencing judge understood and applied the proper burden of proof. This, presumably, is why RDF did not advance this argument and, in these circumstances, I conclude that the Court should not, in effect, intervene in the appeal to put this issue forward. [ 20 ] Accordingly, the broad issues that were properly raised in this appeal can be framed as the following: (

a) Did the sentencing judge err in determining the Crown had rebutted the presumption of diminished moral culpability? (

b) Did the sentencing judge err in refusing to order an MRI? (

c) Did the sentencing judge err in refusing to make an IRCS order? [ 21 ] Pursuant to s. 72(5) of the YCJA , a decision to sentence a young person as an adult is considered part of the sentence upon appeal. The standard of review of the sentencing judge’s decision under s. 72 is the same standard of review the court applies when reviewing a sentence.

Significant deference is owed to the sentencing judge, with appellate intervention permitted only when the sentence is demonstrably unfit or there has been an error in principle, a failure to give appropriate weight to a relevant factor or reliance on an irrelevant factor.

The error must have had an impact on the sentence: R v D.B. , 2008 SCC 25 at para 101 , [2008] 2 SCR 3 [ D.B. ]; R v M.W. , 2017 ONCA 22 at para 49 , 134 OR (3d) 1 [ M.W. ]; R v Prockner at paras 65–66; R v Chol at paras 6–7 ; R v Anderson , 2018 MBCA 42 at para 46 , 361 CCC (3d) 313; R v L.M., 2008 SCC 31 at para 14 , [2008] 2 SCR 163; R v Lacasse , 2015 SCC 64 at para 45 , [2015] 3 SCR 1089; R v C.M. , 2018 ABCA 214 at para 72 . [ 22 ] As for the purely factual dimension of a s. 72 inquiry, a deferential standard of review applies.

In R v A.O. , 2007 ONCA 144 , 218 CCC (3d) 409 [ A.O. ], the Court noted the following: [69] Distilled to its core, the appellants’ challenge to the youth court judge’s assessment of the evidence of their prospects for rehabilitation is really an attack on his factual findings concerning the appellants’ rehabilitative potential.

Absent palpable and overriding error, those findings attract great deference from this court, especially where, as here, they form part of a youth court judge’s reasoning in support of the decision to sentence a young person as an adult. [ 23 ] In dealing with arguments about the treatment of evidence that were very similar in nature to those advanced in this case, Richards C.J.S. echoed this by writing as follows in Prockner : [65] … Findings of fact made by a sentencing judge may be overturned only if they involve palpable and overriding error. See: Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235.

Further and more particularly, when dealing with s. 72 of the YCJA , the Court is precluded from reweighing the evidence and substituting its views for those of a sentencing judge. . The Supreme Court explained all of this as follows in R v D.B. , 2008 SCC 25 , [2008] 2 SCR 3: [101] I agree with the rationale articulated by Goudge J.A. for upholding the sentence: Section 72(1) of the YCJA sets out a number of matters to be considered by the youth justice court in reaching its opinion about whether a youth sentence would be sufficient. The reasons for sentence of the trial judge reflect that he did so.

His weighing of these matters to reach his opinion about sufficiency is a task that must attract deference in this court. The Crown does not sug​gest that he acted on an improper

principle or consid​ered extraneous matters. It essentially argues that he did the weighing wrongly.

In my view, that is not enough to warrant the setting aside of his decision. [66] In brief, this Court is not in a position to reconsider the evidence presented to the sentencing judge and then substitute its assessment of the issues for her assessment of them. [ 24 ] The Manitoba Court of Appeal shares the same view, holding that a sentencing judge’s finding that a young person posed no real risk to public safety was one of fact and could not be overturned absent palpable and overriding error: McClements at paras 53–54 . [ 25 ] The recent decision of the Supreme Court in R v Le , 2019 SCC 34 , 434 DLR (4th) 631 [ Le ], is also worthy of note on this front.

There, speaking for the majority, Brown and Martin JJ., wrote “[q]uestions of fact attract a palpable and overriding error standard” (at para 23, citing R v Shepherd , 2009 SCC 35 at para 18 , [2009] 2 SCR 527). In his dissenting reasons, but not on this point, Moldaver J. expanded on the standard of review for findings of fact as follows ( Le ): [206] The threshold for interfering with a trial judge’s factual findings is stringent. It is not enough that there is a difference of opinion with the trial judge, nor is it sufficient to show that the trial judge’s findings were tainted by an error simpliciter .

Rather, appellate intervention is justified only where the trial judge has made a “palpable and overriding error” ( Housen , [2002 SCC 33] at para. 10 ). Such an error is one that is “plainly seen” (ibid . , at para. 6) and is “shown to have affected the result” ( H.L. , [2005 SCC 25] at para. 55). The same standard applies in respect of a trial judge’s findings of credibility (see R. v. Gagnon , 2006 SCC 17 , [2006] 1 S.C.R. 621, at para. 10 ). V. Analysis A. Framework for a s. 72 application [ 26 ] The YCJA creates a distinct regime to impose sentences on offenders who are the ages of 12 to 17.

The overarching approach required to be applied by a youth court judge is found in the declaration of principle set out in s. 3 of the YCJA . With these principles as a guide, a youth court judge is then tasked with making the determination required by s. 72 of the YCJA when the Crown applies to sentence a young person as an adult. That

section is as follows: 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. Order of youth sentence

(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. Onus

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General. Pre-sentence report

(3) In making an order under subsection (1) or (1.1), the youth justice court shall consider the pre-sentence report. Court to state reasons

(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision. Appeal

(5) For the purposes of an appeal in accordance with

section 37, an order under subsection (1) or (1.1) is part of the sentence. [ 27 ] The differences between the sentences imposed if an offender is sentenced as a youth or sentenced as an adult are stark. When a youth court judge determines the offender should not be liable to an adult sentence, s. 73(2) of the YCJA requires the judge to impose a youth sentence. For a first degree murder conviction, the youth would be sentenced under ss. 42(2) (

q) or (r). Under either section, the sentence cannot exceed ten years. The custodial portion of the sentence cannot initially exceed six years, although that custodial portion can be continued to the end of the sentence, under s. 104(1), in specific circumstances. The sentences for multiple murders and multiple attempted murders would all be concurrent.

The maximum period of external controls and monitoring under a youth sentence would be ten years. [ 28 ] If a youth court judge determines an offender should be liable to an adult sentence, s. 73(1) requires the judge to sentence the offender as an adult under the Criminal Code . The only sentence that can be imposed for first degree murder, pursuant to ss. 235(1) and 745.1 of the Criminal Code , is imprisonment for life. A youth sentenced as an adult for first degree murder is not eligible for parole for ten years. Parole is not automatic and must be approved by the Parole Board of Canada.

If parole is granted at some point after the expiration of ten years, an offender sentenced as an adult will be subject to conditions providing external controls and monitoring for the

rest of his or her life. [ 29 ] Applications under s. 72 of the YCJA raise difficult issues. A good starting point to any analysis of s. 72 is to consider D.B. In D.B. , the Supreme Court addressed the previous version of s. 72 , which presumptively required adult sentences to be imposed for certain offences and placed the onus on the youth to rebut the presumption. The Supreme Court concluded this automatic presumption and associated onus offended the principles of fundamental justice found in s. 7 of the Canadian Charter of Rights and Freedoms , and could not be justified under s. 1 of the Charter .

In her reasons for this conclusion, Abella J., on behalf of the majority, made the following observations about the sentencing of youth: [1] Young people who commit crimes have historically been treated separately and distinctly from adults. This does not mean that young people are not accountable for the offences they commit.

They are decidedly but differently accountable. … [41] What the onus provisions do engage, in my view, is what flows from why we have a separate legal and sentencing regime for young people, namely that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability.

This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment. … [47] … Special rules based on reduced maturity and moral capacity have governed young persons in conflict with the law from “the beginning of legal history” [citation omitted]. … … [77] This does not mean that an adult sentence cannot be imposed on a young person.

It may well be that the seriousness of the offence and the circumstances of the offender justify it notwithstanding his or her age. … … [94] Promoting the protection of the public is equally well served by putting this onus on the Crown, where it belongs. The Crown may still persuade a youth court judge that an adult sentence…is warranted where a serious crime has been committed. And young persons will continue to be accountable in accordance with their personal circumstances and the seriousness of the offence.

But the burden of demonstrating that more serious consequences are warranted will be, as it properly is for adults, on the Crown. (Italic emphasis in original) [ 30 ] In response to D.B ., s. 72 of the YCJA was amended in 2012 by the Safe Streets and Communities Act , SC 2012, c 1, s 183, to its current version. The amendments removed the presumption and onus found to offend the Charter in D.B ., deleted the list of itemized considerations from s. 72, and changed the blended analysis contained in the previous version of s. 72 into a test with two separate prongs.

In a s. 72 application, an independent assessment of each of the two prongs is also now required ( M.W. at para 94 ; Chol at para 60 ; R v L.M ., 2017 SKQB 336 at para 106 [ L.M. ]). [ 31 ] Applying the two-pronged test from s. 72(1) of the YCJA , the sentencing judge in the matter at hand determined the Crown had rebutted the presumption of moral culpability, determined a youth sentence was not of sufficient length to hold RDF accountable for his offending behaviour and, consequently, decided RDF should be sentenced as an adult.

RDF accepts the sentencing judge stated the correct framework in making this decision. However, he asserts she intermingled the requirements of the two parts of the test, ignored evidence, misapprehended evidence, became focussed on the seriousness of the offence and erred in determining that the Crown had rebutted the presumption under s. 72(1) (a). RDF does not contest the sentencing judge’s finding under s. 72(1) (

b) that a youth sentence is not of sufficient length to hold him accountable for his offending behaviour, except to the extent he asserts an IRCS sentence should have been ordered. B. Did the sentencing judge err in determining the Crown had rebutted the presumption of diminished moral culpability? [ 32 ] The bulk of RDF’s submissions on appeal addressed his assertion that the sentencing judge erred in finding the Crown had rebutted the presumption of diminished moral culpability.

Overlaying his specific and detailed submissions about the sentencing judge’s findings of fact and treatment of the evidence was the general proposition that the sentencing judge was overwhelmed by the seriousness of the offence which improperly drove her ultimate determination. RDF, in written and oral submissions, argues that while the seriousness of the offence is a relevant factor in a judge’s determination under s. 72(1) (

a) of the YCJA , the seriousness of the offence should have limited bearing on that determination. [ 33 ] Section 72(1) (

a) of the YCJA requires the Crown to rebut the presumption of diminished moral blameworthiness or culpability . If the Crown fails to rebut the presumption, the inquiry is over and the offender must be sentenced as a youth. This prong of s. 72(1) has been addressed by appellate courts across the country. In M.W. , Epstein J.A. stated the following about this issue: [97] In my view, the focus must necessarily be on the issue of maturity . The Presumption assumes that all young people start from a position of lesser maturity, moral sophistication and capacity for independent judgment than adults.

Bala and Anand explain at p. 4: Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self-awareness, and they may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why they committed a crime most frequently respond: “I don’t know.” This seemingly impertinent answer may simply reflect a lack of forethought or self-

awareness, or non-responsiveness due to embarrassment and the shame of hindsight, or it may signal a more significant cognitive issue.

Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. [Footnotes omitted.] [98] In order to rebut the Presumption the Crown must satisfy the court that, at the time of the offence, the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to him or her. (Emphasis added) [ 34 ] The British Columbia Court of Appeal in Chol (at paras 59–61 ), approved of the above comments from paragraph 98 of M .

W. , adding that the assessment is a case-dependent, fact-dependent determination that requires a sentencing judge to examine the circumstances of the offender and the circumstances of the offence. [ 35 ] The Manitoba Court of Appeal in McClements (at paras 39–40 , and in J.M.O. at paras 62–63 ) determined the s. 72(1) (

a) analysis requires the Crown to prove the young person had the moral capacity of an adult at the time of the offence.

The Court further described the circumstances of the young person and the circumstances of the offence as being at the heart of the inquiry into whether adult-like judgment was exercised. [ 36 ] In making a determination under s. 72(1) (a), a youth court judge must be cautious to weigh all of the various factors relevant to this issue and not place undue emphasis on any single factor, including the actions of the offender on the day of the offence ( R v J.F.R ., 2016 ABCA 340 at para 26 , 46 Alta LR (6th) 341). [ 37 ] The focus of the first prong of the s. 72(1) application requires the court to be cognizant that young persons are presumed to have a lower level of maturity, moral sophistication and capacity for independent judgment.

Impulsivity, immaturity and a young person’s inability to appreciate the consequences of his or her actions are at the root of the presumption. In order for the Crown to rebut this presumption, it must establish the offender demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult.

Evidence of the circumstances of the offender (age, maturity, intelligence, mental health issues, moral capacity, background, Gladue factors, previous criminal record and any other relevant factors) and the circumstances of the offence (actions taken in relation to the offence, planning, sophistication, role played, motivation and any other relevant factors) are at the core of this determination. [ 38 ] Turning to the matter at hand, the evidence tendered at the hearing was comprehensive. A detailed agreed statement of facts, consisting of 122 paragraphs, was filed.

Numerous victim impact statements, reports and additional documents were filed. RDF’s video statement to the police and video surveillance footage from the school was tendered. The following witnesses provided viva voce testimony: (

a) Crown witnesses: (

i) Tanis Fidler – Author of the pre-sentence report (ii) Christopher Hales – Youth facility worker at Kilburn Hall in Saskatoon (iii) Dr. Declan Quinn – Psychiatrist (iv) Corporal Jim Lemaigre – RCMP officer (

v) Dr. Katelyn Harker – Psychologist (vi) Jennifer Peterson – IRCS coordinator (

b) Defence witnesses: (

i) Dr. Mansfield Mela – Psychiatrist (ii) Kylene F. – Sister to RDF’s adoptive mother (iii) Dr. Monty Nelson - Psychologist [ 39 ] The sentencing judge commenced her written decision by setting out the background and extensively canvassing the facts of the offence. She then methodically summarized the evidence from the hearing. The sentencing judge set out the sentencing framework under the YCJA , referencing ss. 3 , 14(5) , 38 , 42 , 64 and 72 of the YCJA , ss. 235 and 745.1 (

b) of the Criminal Code , D.B ., J.M.O. , M.W ., L.M ., A.O. and several other lower court decisions. She moved on to canvas several court decisions in which young persons had been sentenced for murder and attempted murder. No issue was taken on appeal with the sentencing judge’s

summary of the law that was to be applied on the application. [ 40 ] The sentencing judge then turned to the application of the law to the facts of the matter at hand. In conducting her analysis under s. 72(1) (

a) of the YCJA , the sentencing judge first analyzed several factors under the heading of “Age, Maturity, Character, Background, Previous Record”. She noted RDF was 15 days shy of his eighteenth birthday when he committed the offence.

The sentencing judge referenced the experts’ reports, the PSR, the Gladue report and the viva voce testimony to conclude RDF had family support growing up and that his family continued to care for and support him. [ 41 ] RDF submits the sentencing judge erred by misconstruing or failing to take into account the evidence regarding his cognitive issues, mental health issues, FASD and Gladue factors. He points to Dr. Nelson’s evidence, coupled with family and teacher observations, which concluded he has an intellectual disorder and cognitive impairment. He further points to the evidence of Dr.

Mela who concluded he operated at an immature level and had a lower level of functioning than his chronological age. In his submissions, RDF extensively

highlights the evidence regarding maturity, depression, anxiety, low self-esteem, FASD, academic delay, diminished cognitive development and his personal circumstances. He disputes the finding by the sentencing judge of sophisticated planning and deliberation. RDF refers to the extent of the planning and deliberation in several different manners throughout his factum, all of which attempt to convey his plans as being simplistic and minimal. [ 42 ] In his factum and oral submissions, RDF makes assertions that challenge many of the underlying facts found by the sentencing judge. More specifically, RDF challenges the following findings of fact: (

a) he did not live in an overcrowded home and overcrowding was not an issue for him ( Sentencing Decision at paras 250 and 302); (

b) he did not lack a father figure because he had a consistent father figure in his grandfather who spent time with him hunting, fishing and camping; they had a close relationship (at para 251); (

c) he was not a loner, had some friends, had academic problems but did not hate going to school and was not forced to go to school (at paras 252–255 and 302); and (

d) he was not the victim of bullying by anyone (at paras 256–267). [ 43 ] Beginning with the overcrowding, I note the evidence regarding this issue was not very substantial. RDF’s home was a three- bedroom house with seven residents. In examination in chief, a maternal aunt, who did not live in the house, provided the following evidence regarding the home: Q Okay. And at Lara’s house, if I can go to sort of January of 2016, before this -- these events took place, who was living at Lara’s house? A There was Lara’s daughter … her partner Jamie and at that time two other foster kids. Q Okay.

And I understand her -- the number of foster children she had varied from time to time? A Yeah. Q But she always generally had two or three foster children at the house? A Yeah. Q And the daughter is younger than [RDF]? A Yes. Q And the son is older than [RDF]? A Yes. Q Can you describe her house, how big it was? A It’s a three-bedroom house, the rooms are probably about ten feet -- no, maybe about 12 feet by 12 maybe. Q Okay. Did it have a basement? A No. Q Okay. So a -- a bit of a crowded residence? A Yeah. [ 44 ] This was the bulk of the evidence related to this issue.

The sentencing judge recognized RDF’s home may appear over-crowded from an outsider’s perspective, but she noted it was no more crowded than his grandparents’ home. There was other evidence that RDF was told he may have to go live with his biological mother, but this threat had nothing to do with the number of people residing in the home.

Importantly, as noted by the sentencing judge, there was no evidence RDF considered the house overcrowded or that the number of people residing in the home caused any problems for him. [ 45 ] Turning to the assertion that RDF did not have a father figure, it was uncontroverted that his biological father was absent from his life. However, the evidence was also uncontroverted that RDF had a close relationship with his grandfather who lived directly across the street. His grandfather was a stable person who took him hunting, fishing and camping.

RDF agreed, in his police statement, that he was close to his grandfather. [ 46 ] With regard to a hatred of school and forced attendance, the sentencing judge examined the evidence regarding RDF’s attendance, academic record and dislike of the academic side of school. She also examined the evidence that he liked the social aspects of school, although he had been described by some as a “loner” and a “follower”. There was evidence he had a group of friends that he liked to hang out with in the hallways.

Importantly, on the day of the shooting, despite the fact he was shooting people randomly, RDF waved some people away and did not shoot at them because they were his friends. The sentencing judge considered this evidence and found RDF to be a person who had no interest or capacity to do his school work, but concluded he had some friends. She found he was not motivated to engage in the shooting rampage because of being forced to go to a school he hated. [ 47 ] This led into the sentencing judge’s analysis of the allegations that RDF was a victim of bullying.

She reviewed the statements from several students that referred to bullying. All of the statements that referred to him being bullied contained guesses, assumptions, speculation and hearsay. Many other students had never seen RDF being picked on and simply did not know if he was being bullied. A member of his group of friends stated he had no knowledge RDF was bullied. There was no direct evidence from anyone that RDF was bullied.

While much was made of RDF’s nickname in submissions, the evidence revealed his family had given him the nickname and he liked it to the point of insisting one of his teachers call him by the nickname rather than his actual name. RDF denied he was bullied during his warned statement and continued to deny it to each of the professionals who completed written assessments in this matter. [ 48 ] I must reject RDF’s challenge to all of the findings of fact set out above. This Court cannot reweigh the evidence and substitute its own assessment of the evidence to find facts.

While some of the evidence regarding these issues was controverted and contradictory, the sentencing judge directly addressed the evidence regarding these issues in her reasons and made her findings of fact. There was

sufficient evidence to support the findings set out above by the sentencing judge. Given the standard of review, these findings of fact remain intact. [ 49 ] Turning to RDF’s main submission with regard to the presumption under s. 72(1) (

a) of the YCJA , he submits the sentencing judge ignored or misapprehended the evidence of his cognitive and mental health issues. I do not agree. The sentencing judge openly grappled with these issues. First, the sentencing judge comprehensively summarized the evidence of each of the witnesses, including the psychiatrists and psychologists. Beginning at paragraph 269 of the decision, the sentencing judge addressed whether RDF was suffering from a recognized mental illness or other cognitive limitations at the time of the offence.

She described this determination as “difficult” because of the conflicting evidence. The sentencing judge noted there was no commonality in the opinions of the experts except for the finding that RDF had a low I.Q. Having already set out the experts’ evidence in detail, she summarized the findings of the experts as follows: [269] All three experts referenced Dr. Nelson’s testing and results. Dr. Nelson in his own right was cautious about making diagnoses.

Referencing R.F.’s poor language functioning, he wrote “poor language functioning may be a reflection of underlying brain dysfunction, and this hypothesis would be worthwhile to pursue further”. Reporting on R.F.’s right-sided weakness, Dr. Nelson was not prepared to make a diagnosis, instead writing “This trend may reflect some potential for underlying brain dysfunction … a complete medical evaluation including consideration of medical imaging of his head may be useful”. These tests were never done. [270] Dr.

Mela diagnosed R.F. with intellectual developmental disorder, conduct disorder, major depressive disorder, cannabis use disorder, post-traumatic stress disorder, and parent-child relational problems. [271] Dr. Quinn found no evidence of hallucinations, no thought disorder, no schizophrenia, no evidence of clinical depression, anxiety disorder, obsessive-compulsive disorder, or Asper-autism disorder. [272] Dr. Harker reported that R.F. did not meet the criteria for a diagnosis for depression, anxiety, ADHD, or PTSD. [273] Dr. Nelson and Dr.

Mela had suspicions that R.F. was suffering from Fetal Alcohol Spectrum Disorder (FASD). He displayed some characteristics that may be consistent with the disorder. However, there was no confirmation of pre-natal alcohol consumption at the time of their assessments. Following receipt of the Gladue report, both Dr. Mela and Dr. Nelson co-authored a letter dated August 17, 2017 confirming their diagnosis of FASD. [274] Dr. Mela and Dr. Nelson relied upon the confirmation of alcohol consumption and pattern as contained in the Gladue report.

The author of the report, who did not testify, interviewed extended family members, R.F.’s biological mother and R.F.’s father. [275] The interviews revealed that the biological mother consumed alcohol in large quantities on a frequent basis while pregnant. This information was in direct opposition to Gail’s denial to Dr. Mela that she had consumed alcohol while pregnant. I am suspicious of the veracity of the information supplied by the family members.

These same individuals when previously approached denied alcohol consumption, then minimized alcohol consumption, and finally, they provided detailed consumption amounts and patterns. I cannot rely on that information to accept it as a basis for a definite diagnosis of FASD. [276] I do, however, accept Dr. Nelson’s findings that R.F. may fall somewhere on the FASD spectrum given his domain findings and that more testing would be required. (Footnotes omitted) [ 50 ] The sentencing judge also reviewed RDF’s history of anger, strong will and regular use of marijuana.

I note that RDF was not using marijuana or any other intoxicant on the day of the offences. [ 51 ] Next, the sentencing judge analyzed the circumstances of the offence, the level of planning and RDF’s role in the offences. The sentencing judge made the following findings of fact in this regard: [287] R.F. was the sole architect and perpetrator of these crimes. A plan was formulating in his mind as early as September 2015 when he made his school shooting remark to his friend in the school canteen.

He began internet searches to gather information on different guns, different types of ammunition and their effects (damage) on humans. He had access to various types of weapons and ammunition at his grandfather’s residence. He knew where the guns and ammunition were kept. He knew his grandparents and his aunt were going to be away not only from the residence but also away from La Loche on Friday, January 22, 2016.

When he woke up that morning he knew it was the day to shoot up the school. [288] The night before, knowing what he was going to do the next day, he searched websites with the queries “what does it feel like to kill someone” and “what does it feel like to take someone’s life”. [289] His last searches of that evening became more specific. He queried three topics: a) “killing a family member / am I more likely to kill an intruder or a family member with a gun in my house”, b) “familicide”, c) “fratricide”. R.F., in his brief, states that [D] and [Dn] were never part of the plan.

Crown has conceded this by charging and accepting pleas to second degree murder. That issue is settled. However, I do not accept the submission that R.F. just “clicked on” the words “familicide” and “fratricide” or that he was not familiar with such terminology. He knew the adults would be away. He knew his two cousins would be at the house alone. This demonstrates forethought in case something would go awry at the residence, which, sadly and tragically it did. [290] R.F. was not to be deterred from his school shooting plan even after he murdered his two cousins.

In his warned statement his mission was to “Go to the school and shoot those fuckin’ kids, man”. He stated that no one would have been able to stop him. He was aware he “would be charged with murder anyway”. [291] His choice of weapon and ammunition for use at the school was a deliberate one. He knew using a shotgun and its ammunition would spread and cause the most harm to humans as compared to the .22 calibre rifle with which he had shot [D] and [Dn].

[292] At the school R.F. first went in to check out the surroundings, he moved the truck closer to the front doors so as not to be as obvious while carrying the shotgun, he warned off his friends, then went into the school and started shooting whoever was available to shoot. The exception was Ida Lemaigre, whose life he decided to spare. Tegan Park survived only because R.F. could not catch him.

R.F. was trying to open locked doors in the hope of finding more victims. (Footnotes omitted) [ 52 ] The sentencing judge earlier noted RDF was interested in previous school shootings and had spent considerable time on the internet viewing videos about other school shootings. [ 53 ] From the above-noted passages, and the decision as a whole, it can be seen the sentencing judge was keenly aware of the conflicting evidence regarding RDF’s cognitive issues, mental health concerns and level of maturity.

It was accepted by all that RDF had some cognitive difficulties, but the operative question was what effect those cognitive difficulties had on his moral culpability. Taking all of this into account, the sentencing judge concluded RDF’s actions were not impulsive, not the actions of someone with a lower maturity than his chronological age and not the actions of someone who acted violently without full consideration of the results of his acts. She determined RDF demonstrated planning, resolve and forethought throughout and was able to quickly adapt his plan as required.

She found he could have abandoned his plan when interrupted by his younger cousin, but his mind had been made up and he was not to be deterred, resulting in the murder of the final obstacle to his plan. [ 54 ] The sentencing judge found RDF demonstrated the ability to problem solve and make fluid decisions, with examples of this consisting of selecting a new weapon when the first one malfunctioned and murdering his younger cousin to avoid the interruption of his plan.

The sentencing judge accepted RDF had a low I.Q. but found the evidence of his planning and execution of his plan illustrated more sophisticated thinking and ability than his I.Q. would indicate. RDF’s prolonged consideration of taking the actions he did, his research, the timing of the offences to ensure access to firearms without detection, the selection of a firearm that would cause greater damage and his preliminary entrance into the school without the weapon to identify a large room containing numerous people all provided evidence of his ability to plan and think through his actions.

When RDF murdered his older cousin, he stopped and asked himself “what am I doing?” He then continued with his plan but was interrupted by his younger cousin. After further improvising and murdering his younger cousin, he continued with his plan to go to the school knowing, as he stated in his police interview, he was going to be charged with murder anyway.

As a result, there was compelling evidence supporting the sentencing judge’s conclusions regarding maturity, adult-like thinking, appreciation of consequences and lack of impulsivity. [ 55 ] The final conclusions reached by the sentencing judge were as follows: [304] These were not impulsive acts done by an immature person. He was not indiscriminate in his shooting at the school. He spared a teacher and warned off three of his friends. His planning, deliberation, and resolve all have an adult-like quality.

He knew he was going to be arrested and charged for the murders of [D] and [Dn] yet he continued his deadly plan. His moral culpability was high and he was aware of that. The nature and manner of the murders were unnecessarily violent. I will not repeat the circumstances of the murder of [D] and [Dn] again. Mr. Wood was seriously injured when shot at close range. As he was sprawled on his back, R.F. shot him again. Ms. Klyne had already been shot in the face. She could not see. She was being tended to by Ms. Janvier. He returned a second time, looked in, saw Ms. Janvier assisting a blinded victim.

He shot both of them with one shot killing Ms. Janvier instantly. [305] R.F. was not in a vulnerable position either within his family or within the community at large. He had family members doing his bidding. [306] From the whole of the evidence and for all of the above reasons, I am satisfied that the Crown has rebutted the presumption of diminished moral blameworthiness or culpability of R.F. [ 56 ] Keeping in mind the standard of review, I can find no error in principle or misapprehension of the evidence in these findings of the sentencing judge.

This Court is not entitled to simply re-examine all of the evidence, re-weigh it and substitute its own view for that of the sentencing judge. The sentencing judge took into consideration the conflicting evidence regarding RDF’s cognitive issues, mental health issues and maturity, the evidence of the steps he took to prepare for and execute his plan and, in conjunction with an examination of the other evidence, determined his actions demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult.

This was a finding that was open to the sentencing judge on the evidence before her and cannot be interfered with on appeal. [ 57 ] Fitting mental illness or cognitive limitations into a s. 72 analysis can be a challenging proposition. Obviously, the relevant analysis must be case specific. Overall, Mainella J.A. put it well in J.M.O. : [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. [ 58 ] In my view, the sentencing judge avoided both of these errors. She did not default to the notion that RDF’s low IQ score and possible FASD must, in and of themselves, mean the presumption of diminished moral blameworthiness or culpability was rebutted.

Nor was she indifferent to RDF’s mental and cognitive problems. She directly weighed them into the balance in the course of her s. 72 analysis. [ 59 ] RDF also makes submissions about how the sentencing judge dealt with the seriousness of the offences he committed. Both he and the Crown take the position that the seriousness of the offences was a proper factor for the sentencing judge to examine as part of her analysis under s. 72(1)(a). However, RDF submits the sentencing judge was overly focused on this consideration.

He argues this focus improperly influenced the entirety of her decision concerning s. 72(1) (a). In RDF’s view, the seriousness of the offences should not have had a significant effect on the s. 72(1) (

a) analysis. He contends that, by proceeding as she did, the sentencing judge impermissibly intermingled the two prongs of s. 72(1) . The issue here, according to RDF, is whether the sentencing judge allowed the seriousness of the

offences to improperly influence her decision. [ 60 ] I agree that it would have been an error for the sentencing judge to have allowed herself to have become overwhelmed by the seriousness of the offences. I also agree that it would have been an error for the sentencing judge to have based her s. 72(1)(

a) decision on the seriousness, in and of itself, of the offences. This is because the seriousness of an offence is relevant, in a s. 72(1) (

a) analysis, only to the extent it is revelatory of adult-like moral culpability or blameworthiness. However, the sentencing judge made neither of these errors. [ 61 ] There is no doubt that the sentencing judge was keenly aware of the seriousness of the offences. It would have been impossible not to be. She began her decision by describing the events as “seared into the memory of the community of La Loche” ( Sentencing Decision at para 1). She reviewed the facts of the offences and referred to the circumstances of them throughout her analysis.

The sentencing judge stated murder was the most serious crime one could commit with this matter involving four counts of murder and seven counts of attempted murder. She noted the offences were planned and deliberate, thereby elevating their seriousness. The sentencing judge observed that the consequences for the victims, their families, friends and community have been devastating. [ 62 ] However, the reasons of the sentencing judge do not support the contention that she was overly focused on the seriousness of the offences.

The decision as a whole reveals a full analysis of all the relevant issues, a grappling with conflicting evidence and a principled approach to analyzing the evidence within the proper legal framework under the first prong of s. 72(1) .

As I read her decision, the sentencing judge remained focussed on the relevant factors and the task at hand and did not allow the seriousness of the offences to overwhelm her decision on the first prong of s. 72(1) . [ 63 ] There are some aspects of the sentencing judge’s reasons that, taken in isolation, read as if she might have considered the seriousness of the offences, simpliciter , as bearing on the s. 72(1) (

a) inquiry. I refer here, for example, to her comments under the heading “Seriousness of Offence” – about murder being the most serious crime in Canadian law and about the impact of RDF’s offences on the community. However, when considered in the context of her decision as a whole, I do not understand those passages in this way. [ 64 ] The sentencing judge referenced the seriousness of the offences in her s.72(1)(

a) analysis, presumably because she considered herself obliged to do so in light of what was, to her, the binding Court of Queen’s Bench decision in L.M. Significantly, in instructing herself on the relevant legal principles (at para 225), the sentencing judge quoted from L.M. , where Schwann J.A. ( ex officio) had approvingly referred to the notion expressed in M.W. , to the effect that the seriousness and circumstances of an offence committed by a young person can help to inform the question of the “moral judgment or sophistication” of the young person.

There is no suggestion there or otherwise in the sentencing judge’s decision that, at the level of principle, she believed that, in and of itself, the seriousness of the offences committed by RDF somehow went directly to the question of whether the Crown could rebut the s. 72(1) (

a) presumption. [ 65 ] The sentencing judge’s analysis was focussed on the appropriate issue – whether the Crown had rebutted the presumption of RDF’s moral blameworthiness or culpability. Even if she can be taken to have had some regard to the basic seriousness of the offences and their impact on the community in the course of her s. 72(1) (

a) analysis, I would not see that as ultimately having had an impact of any consequence on her bottom-line conclusion about the s. 72(1) (

a) presumption.

Her root assessment of RDF’s moral blameworthiness or culpability was grounded outside of the seriousness issue in the matters that she discussed and analysed at some length under the headings “Age, Maturity, Character, Background, Previous record” and “Circumstances, Planning and R.F.’s role”. [ 66 ] In the result, therefore, I cannot agree that the sentencing judge inappropriately focused on the seriousness of the offences in issue here or that she gave improper consideration to their seriousness in a way that would warrant the intervention of this Court. [ 67 ] RDF further submits the sentencing judge impermissibly intermingled the two prongs under s. 72(1) by taking into account the time that it would take for reform and rehabilitation under s. 72(1) (

a) when this should only be a consideration under s. 72(1) (b). He points to paragraphs 87 to 97 of the Sentencing Decision as support for this assertion. However, paragraphs 87 to 97 of the decision are a portion of the

summary of the evidence of Dr. Harker and do not contain any analysis under s. 72(1) (a). Relying on paragraphs 316 to 323 of the decision, RDF further submits the sentencing judge placed great emphasis on reform and rehabilitation prospects, suggesting undue weight was placed on this factor which spilled over into the first prong of the analysis. I note paragraphs 316 to 323 of the decision are contained within the clearly delineated portion of the sentencing judge’s analysis where she analyzed the second prong of the test, where this factor is properly considered.

After a thorough examination of the sentencing judge’s reasons, I am unable to find an instance where the sentencing judge considered the time that it would take for reform and rehabilitation as a factor in her analysis under s. 72(1) (a). This submission is without merit. [ 68 ] I conclude the sentencing judge did not err in determining the Crown rebutted the presumption of diminished moral blameworthiness or culpability of RDF under s. 72(1) (

a) of the YCJA . C. Did the sentencing judge err in refusing to order an MRI? [ 69 ] In their evidence and reports, Dr. Mela and Dr. Nelson queried whether there was a brain injury that might be affecting RDF and recommended an MRI. RDF applied to the sentencing judge, pursuant to s. 34 of the YCJA , to order an MRI be conducted. The sentencing judge determined she did not have the jurisdiction under s. 34 to order the MRI be conducted. [ 70 ] The relevant portions of s. 34 of the YCJA are as follows: Medical or psychological assessment 34

(1) A youth justice court may, at any stage of proceedings against a young person, by order require that the young person be assessed by a qualified person who is required to report the results in writing to the court, (

a) with the consent of the young person and the prosecutor; or (

b) on its own motion or on application of the young person or the prosecutor, if the court believes a medical, psychological or psychiatric report in respect of the young person is necessary for a purpose mentioned in paragraphs (2)(

a) to (

g) and

(

i) the court has reasonable grounds to believe that the young person may be suffering from a physical or mental illness or disorder, a psychological disorder, an emotional disturbance, a learning disability or a mental disability, (ii) the young person’s history indicates a pattern of repeated findings of guilt under this Act or the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985, or (iii) the young person is alleged to have committed a serious violent offence. Purpose of assessment

(2) A youth justice court may make an order under subsection (1) in respect of a young person for the purpose of … (

b) making its decision on an application heard under

section 71 (hearing — adult sentences) … . … Definition of qualified person

(14) In this section, qualified person means a person duly qualified by provincial law to practice medicine or psychiatry or to carry out psychological examinations or assessments, as the circumstances require, or, if no such law exists, a person who is, in the opinion of the youth justice court, so qualified, and includes a person or a member of a class of persons designated by the lieutenant governor in council of a province or his or her delegate. [ 71 ] The sentencing judge stated the following in refusing to order an MRI: Now, I looked at the section, which is

Section 34 . Now, under that

section -- and I understand why the request is being made. But to specifically -- for me to specifically say -- to do a court-ordered MRI, I can’t do that because that is a specific diagnostic tool. And in reading the section, I simply don’t have the authority because, as I-- one of the reasons, as I understand it from Dr. Mela, is that there needs to be a referring physician and then that referring physician, if they feel it’s necessary, then it refers to the -- to the radiologist who does the MRI. So I do not have the authority under

Section 34 to order a specific diagnostic test. Now, in thinking about this and in considering -- you know, hearing the evidence of Dr. Mela and of Dr. Nelson, I think Mr. Fox, what I am prepared to do is that I’m prepared to grant an adjournment if, sir, you want to see if Dr. Mela or -- or whomever, can get a referring physician in to see the young person. And of course, depending on where it goes from there I am prepared to grant an adjournment to do that.

And of course, if an MRI is done, then of course that would be up to you, the defence, as to what -- because it would be like another assessment that defence is having done, whether you choose to disclose that to the Crown or to the Court or not. So I am prepared to do that, Mr. Fox. [ 72 ] RDF did not file any case law in support of the contention that an MRI could be ordered under s. 34 of the YCJA .

I was unable to locate any reported cases where a diagnostic tool such as an MRI was ordered on the authority of that section. [ 73 ] I agree with the sentencing judge’s conclusion that she did not have the authority to order the MRI be conducted. Ordering specific diagnostic tests is outside of the scope of s. 34 of the YCJA .

Section 34 provides authority for a judge to order a young person be assessed by a qualified person ( s. 34(1) ) and provide a report, including a medical report, to the court ( s. 34(1) (b)). Such qualified persons include medical doctors (s. 34(14)). This permits a youth court judge to order a medical assessment by a doctor but does not include the authority to order a specific diagnostic test such as an MRI. [ 74 ] As stated by the sentencing judge, relying on Dr. Mela’s testimony, a referring physician must be the person to order an MRI.

I note a judge is not particularly well stationed to determine what diagnostic tests are to be ordered in a particular matter. Ordering an MRI would be analogous to the youth court judge picking the specific psychological testing to be administered by a psychologist, choosing the assessment tools to be utilized by a psychiatrist or determining the steps a medical doctor should take in determining the cause of specified medical symptoms.

The court relies on the qualified persons selected to utilize the diagnostic tools at their disposal that they, in their professional opinions, believe are required to complete the ordered assessment. It is not for the court to order specific diagnostic testing on the authority of s. 34 . [ 75 ] The sentencing judge did the best she could do under s. 34 of the YCJA by offering an adjournment to permit RDF to determine if Dr. Mela or another person could have a referring physician see him and provide a referral for an MRI.

There is no reference in the record to any such referral being made or an adjournment being requested. This ground of appeal cannot succeed. D. Did the sentencing judge err in refusing to make an IRCS order? [ 76 ] RDF does not directly challenge the sentencing judge’s finding that a youth sentence was not of sufficient length to hold him accountable for his offending behaviour.

However, he does indirectly challenge this finding by submitting the sentencing judge should have ordered the Ministry of Justice – Corrections and Policing to put together an IRCS program for him and to have then imposed a youth sentence on him consisting of an IRCS order pursuant to s. 42(2) (

r) of the YCJA . [ 77 ] The sentencing judge summarized the nature of an IRCS sentence, as follows: [117] There is a partnership with the Federal Government to provide enhanced funding for intensive rehabilitative services for youth who commit serious violent offences. This is funding that might not be available for regular youth sentences. Generally, prior to an IRCS sentence being granted, a treatment plan is created and considered utilizing information gleaned from psychological and psychiatric assessments, the pre-sentence report, and other appropriate reports. Once approved by the Provincial Director, an IRCS sentence is

imposed. The treatment plan is then further developed to ensure proper treatment services geared toward a rehabilitation plan. It is administered with the enhanced funding which is provided. Ms. Peterson described IRCS as a “resource intensive” sentence. … [213] … An IRCS sentence provides enriched, added treatment and support services to assist in the young person’s rehabilitation and reintegration into society. [ 78 ] Under s. 42(7)(

d) of the YCJA , a judge can only impose an IRCS sentence if the provincial director has determined an intensive rehabilitative custody and supervision program is available and that the young person’s participation in the program is appropriate. IRCS programs exist in Saskatchewan but the Associate Deputy Minister responsible for such programs, in consultation with a committee, determined an IRCS program was not available or appropriate for RDF. The IRCS coordinator, Ms. Peterson, testified as to the reasons an IRCS program was not available for RDF.

The factors that militated against an IRCS sentence included RDF’s treatment needs, his age, the anticipated length of sentence and the likelihood he would not remain in a youth facility when he reached the age of 20. The Ministry of Justice – Corrections and Policing determined it would be unable to offer an adequate IRCS program because of the short amount of time RDF would be in youth programming before he transitioned to an adult facility.

The sentencing judge addressed this issue at paragraphs 116 to 124 and 309 to 318 of the Sentencing Decision and determined an IRCS program was unavailable for RDF. [ 79 ] In any event, an IRCS order could only be made, regardless of the provincial director’s determination, if the sentencing judge determined RDF should be sentenced as a youth. This requires this Court to examine whether the sentencing judge erred in her determination under s. 72(1) (

b) of the YCJA . Given the absence of any significant challenge to this portion of the sentencing judge’s decision, my analysis of this issue will be brief. [ 80 ] As set out in D.B. , young people who commit crimes remain accountable for their actions but are “decidedly but differently accountable” (at para 1). For a youth sentence to hold a young person accountable for his or her offending behaviour, it must achieve two objectives ( McClements at para 70 , and A.O. at para 50 ): (

a) it must be long enough to reflect the seriousness of the offence and the young person’s role in it; and (

b) it must be long enough to provide reasonable assurance of the young person’s rehabilitation to the point where he or she can be safely reintegrated into society. [ 81 ] The inquiry under s. 72(1) (

b) of the YCJA only occurs if the judge determines the Crown has rebutted the presumption under s. 72(1) (a). The onus remains on the Crown to establish a youth sentence is not long enough. If the Crown demonstrates either objective of accountability is not met by a youth sentence, then an adult sentence must be imposed. [ 82 ] In M.W. , Epstein J.A. stated the following about accountability: [101] The accountability analysis necessarily involves consideration of proportionality and rehabilitation, with rehabilitation being “subject to” the proportionality principle.

Under s. 38(1), consideration must be given to the sentence that has the greatest chance to rehabilitate the young person. Section 39(3) requires consideration of the youth’s attitude toward rehabilitation, his or her history with rehabilitative programs and the availability of such programs. [102] Section 38(2) sets out additional principles that must be applied when determining a youth sentence. The sentence: (

i) must not be greater than that imposed on an adult in similar circumstances; (ii) must be similar to sentences imposed on similar young persons in similar circumstances; (iii) must be proportionate to the seriousness of the offence and the degree of responsibility of the young person; (iv) subject to proportionality concerns, must be the least restrictive sentence capable of achieving accountability, the most likely to rehabilitate and reintegrate the young person into society, and promote a sense of responsibility in the young person and acknowledge the harm done to the victims and the community; and (

v) subject to proportionality concerns, may serve the objectives of denunciation and specific deterrence. [103] In O.(A.) at para. 46, this court identified accountability in the YCJA context as the equivalent to the adult sentencing principle of retribution, and further, recognized the close correlation between moral culpability and retribution. … [104] A central premise of the YCJA is that adolescents’ lesser maturity should affect the extent to which they are held accountable for criminal conduct: YCJA , s. 3(1) (b)(ii).

This premise connects the Presumption’s focus on maturity with the determination of accountability. [ 83 ] In McClements , the Manitoba Court of Appeal summarized the considerations in an accountability inquiry as follows: [48] To summarize, the accountability inquiry under section 72(1) (

b) has several considerations: 1) The moral culpability of the young person, having regard to the intentional risk taking of the young person; 2) The consequential harm caused by the young person; and 3) The normative character of the young person’s conduct. The consideration of the normative character of the conduct calls for 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. [ 84 ] The sentencing judge properly recognized these considerations regarding accountability by setting out the applicable principles in paragraphs 226 to 232. When she began her analysis of accountability, at paragraph 308, she provided a lengthy quote from R v K.M., 2017 NWTSC 26 , which summarized the approach to be taken to her analysis.

The sentencing judge then analyzed the facts of this matter and determined a youth sentence was not sufficiently long to hold RDF accountable for his offending behaviour. She considered the seriousness of the offences and the circumstances of their commission as a major factor but, at paragraph 326, was careful to remind herself that this factor cannot overwhelm the other factors. The sentencing judge reviewed the other factors including the absence of a criminal record, the lack of RDF’s insight into why he committed the offences, his lack of insight into the effect on the victims at the

school, his prospects for treatment and rehabilitation, his risk to re-offend, whether the duration of the external controls and monitoring available under a youth sentence would be sufficient, his family circumstances and the Gladue principles. After doing so, she determined a youth sentence was not sufficient to hold RDF accountable for his actions. There was ample evidence for the findings made by the sentencing judge.

I can find no error in this analysis or determination. [ 85 ] In the course of her accountability analysis, the sentencing judge found an IRCS sentence was not an option in this matter because the provincial director had determined it was not available and RDF’s participation would not be appropriate. There is no indication anywhere in the sentencing judge’s reasons on accountability that she might have decided differently on the s. 72(1) (

b) decision if the provincial director had determined an IRCS sentence was available and appropriate. Her decision cannot be read as containing any such reasoning.

The provincial director’s decision on the availability and appropriateness of an IRCS sentence thus became an irrelevant issue given the sentencing judge’s determination that any type of youth sentence, including an IRCS sentence, was not sufficient to hold RDF accountable for his offending behavior. [ 86 ] Applying the applicable standard of review, it is my opinion the sentencing judge did not commit an error in principle, fail to give appropriate weight to a relevant factor or rely on an irrelevant factor in reaching her decision that a youth sentence was insufficient under s. 72(1) (b).

As a result, this Court cannot interfere with that determination. [ 87 ] Having satisfied both prongs of the test under s. 72(1) of the YCJA , the Crown’s application to have RDF sentenced as an adult was properly granted. An IRCS order, being a youth sentence, could not have been imposed. This ground of appeal cannot succeed. VI. Conclusion [ 88 ] The appeal is dismissed. “Tholl J.A. ” Tholl J.A. I concur. “Richards C.J.S.” Richards C.J.S. Jackson J.A. (in dissent) I. Introduction [ 89 ] I find myself in respectful disagreement with my colleagues’ reasons and their conclusion.

An important and underlying issue in this case is when, and in what circumstances, can the Crown overcome the presumption of diminished responsibility when a young person, who suffers from significant cognitive difficulties, commits serious crimes? [ 90 ] Parliament has enacted a law declaring that a judge is required to sentence a young offender to an adult sentence only if the Crown overcomes the presumption that the youth is less morally blameworthy or less culpable than an adult.

This presumption is a constitutional principle of fundamental justice that requires the Crown to justify the loss of a youth sentence. If the Crown is unable to rebut the presumption of diminished responsibility, it is not legally possible to say the young person must be held accountable in the same way as an adult. [ 91 ] The learned sentencing judge held that the Crown had rebutted the presumption on the basis that the young person, RDF, had planned the crimes in question, the plan was sophisticated, the execution of the plan belied his intelligence and because of the seriousness of the crimes in question.

She found his actions “were not impulsive nor were they the actions of someone at a ‘lower mental maturity than his chronological age’ or someone who ‘acted violently without full consideration of the results of his acts’” ( R v R.D.F. , 2018 SKPC 28 at para 293 [ Sentencing Decision ]), which the Crown emphasizes is a finding of fact reviewable only on a palpable and overriding error standard. [ 92 ] In my respectful view, in order to arrive at this conclusion, the sentencing judge did not give proper effect to the constitutional presumption.

She reasoned from RDF’s actions and their seriousness to the conclusion that the Crown had overcome the presumption. By law, the focus cannot be on the circumstances of the offence and the seriousness of the offence only. If it were otherwise, it would mean that a person who is under the age of 18, and whose moral blameworthiness or culpability is diminished, could be sentenced to life imprisonment with no possibility of parole for ten years solely on the basis of the commission of a serious offence.

This is contrary to what the law permits or requires. [ 93 ] In some circumstances, planning a crime and carrying it out can be evidence to overcome the presumption of diminished responsibility. In this case, however, no other evidence pointed to the young person functioning as an adult at the time of the offences. He had no previous record. He was not living on his own or earning his own living. He spent his days playing video games alone or with a much younger cousin and socializing with family or at school. He was repeating grade 10 for a third time.

His only independent choice of any consequence prior to the offences was a bad one. That was a decision to smoke marijuana, which he began to do when he was 14 years old. This marijuana use was encouraged by some members of his family and facilitated by others. The evidence of the psychiatrists called by both the Crown and the defence demonstrated that this young person, with his cognitive and other mental limitations, was strongly and negatively influenced by Internet violence and YouTube videos of past school shootings. [ 94 ] This young person murdered four individuals a

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