W.M. Appellant v. Her Majesty the Queen, 2021 SKCA 103

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has been made in accordance with s. 74(2) of the YCJA directing that any information identifying the young person shall not be published until the appeal period is complete. An order has been made in accordance with s. 111 of the YCJA directing that any information identifying a child or young person who is a victim or a witness shall not be published. Court of Appeal for Saskatchewan Docket: CACR3294 Citation: R v W.M. , 2021 SKCA 103 Date: 2021-07- 30 Between: W.M. Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Ryan-Froslie and Barrington-Foote JJ.A.

Disposition: Appeal allowed in part Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr. Justice Barrington-Foote On appeal from: 2019 SKPC 50 , La Ronge Appeal heard: December 9, 2020 Counsel: Sarah Gryba for the Appellant Andrew Davis for the Respondent Richards C.J.S. I. INTRODUCTION [ 1 ] The appellant, W.M., was charged with second degree murder and several weapons and other offences in connection with the beating death of Simon Grant, a man who had taken him off the street and shown him great generosity.

W.M. was 17 years old when the offences were committed. [ 2 ] W.M. ultimately pled guilty in Provincial Court to the offences of manslaughter, robbery, and wearing a mask while committing an indictable offence. The Crown applied to have him sentenced as an adult pursuant to s. 72 of the Youth Criminal Justice Act , SC 2002, c 1 [ YCJA ]. It reads as follows: 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. [ 3 ] The Crown’s application was allowed by the sentencing judge. He went on to impose a global sentence of nine years of imprisonment. [ 4 ] W.M. appeals from the decision of the sentencing judge. He argues that the judge erred in finding that he should be sentenced as an adult and, in any event, also erred by imposing a nine-year sentence. [ 5 ] As explained below, I conclude that W.M.’s appeal must be allowed to an extent.

While the sentencing judge took some missteps in the course of considering the question of whether W.M. should be sentenced as an adult, there is no basis on which his bottom-line determination in that regard can be overturned. That said, the nine-year sentence imposed on W.M. cannot be sustained and should be reduced to seven years. II. BACKGROUND [ 6 ] W.M.’s personal history is a difficult one. The pre-sentence report prepared by John Seidler, a Community Youth Worker, reveals the following noteworthy particulars: (

a) W.M. is a member of the Lac La Ronge Indian Band. He describes himself as “15%” Indigenous and says that he faced discrimination growing up because of his light skin.

(

b) W.M. recalls having met his father only once. He was apprehended from his mother for the final time when he was five years old. He spent the next seven years moving between at least six different foster homes in La Ronge, Pinehouse Lake, Stanley Mission and Prince Albert. He says that the majority of these homes were negative environments and that he and his sisters suffered physical, emotional and sexual abuse at some of them. He became separated from his sisters during this time. (

c) W.M. then lived with a friend’s family in Air Ronge for six months but was asked to leave that home for smoking marijuana. He next moved in with an uncle in Air Ronge for six months but was kicked out for being a “bad kid”. W.M. then lived with another friend for two months before returning to live with one of his earliest foster mothers at Pinehouse Lake. He reported that “she actually cared, she was strict but it felt like home”. (

d) At age 14, W.M. moved in with the biological father of a half sister and the half sister herself in La Ronge. The half sister’s father provided him with a great deal of stability, got him a job and supported him playing hockey. However, W.M. became involved in drug trafficking and, after ten months, was asked to leave the house because of that. He then spent time living with his sister in Prince Albert and his grandparents in La Ronge. His grandfather eventually asked him to leave the house because he was selling drugs from his bedroom window. (

e) W.M. then spent a year, at age 15, “going back and forth all over” – couch surfing with friends and relatives, living with other drug dealers and so forth. He continued to sell drugs throughout this time to support himself. He says that the pursuit of money is what drove the vast majority of his criminal endeavours. (

f) W.M. had been living in a tent in the bush at the edge of La Ronge for months when he first met Mr. Grant. (

g) W.M. had been attending school every day for the six weeks prior to his arrest for the offence in issue here, although his longer-term attendance record was less impressive. The principal of the school said that W.M. presented as a capable student who had “no issues with schoolwork”. W.M. says he was friendly with a few boys at school and had a girlfriend. The principal did not recall W.M. having any significant issues with peer interactions. He described his interactions with teachers as “fine”. (

h) W.M. indicated that he had a history of using his “power and street cred” to get what he wanted. He acknowledged using younger people to broaden his drug trafficking operation and says it was known that he was not someone to “mess around with”. W.M. joined a street gang a month before the attack on Mr. Grant as a pre-emptive attempt to avoid being robbed. The gang had become aware of his drug trafficking activity. (

i) W.M. says that he started using marijuana frequently at age 12 and began drinking alcohol at that same age. He advised that he had been drinking every day in the month prior to the incident involving Mr. Grant and that, during the same period, his drug use had become uncontrollable. [ 7 ] Much of the essential detail of the story leading to Mr. Grant’s death is found in an agreed statement of facts filed at the sentencing hearing. I can do no better than to reproduce it in full: 1.

The now-deceased Simon Grant (hereinafter ‘Simon’)…and his spouse, Cora Laich-Grant (hereinafter ‘Cora’)…were the owners/operators of Louisiana’s Barbeque Restaurant in La Ronge commencing in 2012. The events herein took place in La Ronge and area, Province of Saskatchewan; 2. Simon and Cora have a daughter…age 14; 3. The business of Louisiana’s Barbeque was situated on Studer Street and there was an apartment attached to that business.

In May 2016, the Grants were looking after a young woman…and had arranged for her to stay in that apartment. [She] had been living there for the past 5 years. [She] was dated [ sic ] [W.M.] (…hereinafter ‘[M.]’). In May 2016, the Grants learned that [M.] was living in a tent, had no place to stay, and was getting very thin, so they allowed him to move into the extra bedroom at Louisiana’s apartment. The Grants started to buy him groceries and take care of him. For example, they assisted [M.] with obtaining medical treatment when needed.

The Grant family also attempted to work with Indian Child and Family Services (hereinafter ‘ICFS’) to obtain financial support for [M.]; 4. On February 6, 2017, the power bill at the restaurant was extremely high, and the power was turned off. Since there was no heat in the apartment, the Grant family tried to obtain assistance from ICFS. When this did not materialize, they allowed [M.] to move into the basement of their family home in Air Ronge. [M.] shared the basement with a cognitively disabled adult that the Grants also cared for [YZ]; 5.

The Grant family noticed that [M.] was grateful for their help and making some attempt to ‘turn his life around’ but they were also worried about his activities. They believed he was selling marihuana from their home. The Grants worried about [M.’s] temper and violence towards [his girlfriend]. [M.] was also violent with family pets. The Grants noticed a lot of people coming and going from their home and also believed that [M.] was stealing cans in the neighborhood; 6. On April 4, 2017, the Grants asked [M.] to leave their home. [M.] started to pack, and the Grants left to work at their business.

When they called their daughter…to check on her, she advised that [M.] had come back with his friend. She and her friend were scared and now hiding in the closet. [The daughter] advised as follows: a. [M.] threatened to kill her; b. [M.] said that ‘your dad better watch it, we’re gonna mess him up. You guys are going to pay for this.’ 7. The Grants immediately went home and saw their daughter hiding in the closet. Cora observed that [M.] was downstairs packing more things.

Cora saw Simon speaking to [M.] about the threats. [M.] pushed Simon, and then tried to punch Simon, who also punched in self-defence. [M.] told Simon, ‘I could get thirty guys and I’m fucking going to mess you up big time so don’t fuck around with me.’ This was reported to the La Ronge RCMP, but the Grants did not want to further pursue charges. Their main interest was in [M.] receiving assistance from ICFS. [M.] does not remember making any of these threats;

8. After [M.] left, he continued to send threatening messages to [the daughter]. The Grant family believed that [M.] had a black handgun style pellet gun. They hid Simon’s Rolex watch after [M.] was asked to leave. Around the time that [M.] was asked to leave the Grant family residence, [M.] told [T.T.] (age 14, hereinafter ‘[T.]’), another co-accused, that Simon had a Rolex watch and that he wanted to steal it. The watch is thought to be valued at around $60,000; 9.

Prior to the Easter school break in April 2017, [M.] was with [T.]. [T.] mentions in a statement that [M.] had animosity towards Grant as a result of being “kicked out” because of non-payment by ICFS. [M.] asked Garrett McDonnell (age 18) if he would help him steal the watch and some other jewelry from Simon; 10. On April 15, 2017, [M.] went to the trailer residence of [T.T.] (age 16). This trailer court residence is only about a block away from the restaurant. [M.] told Austin Bird (age 18, hereinafter ‘Bird’) he wanted to rob Simon.

Around 10:00 pm that evening, either [T.] or [M.] called the restaurant, ordered a platter of food, and he, Bird, [T.], and another unknown person waited outside to rob Simon when the food was delivered. Simon did not arrive to deliver the food; 11. On April 15, 2017, Bird, [M.] and [T.] entered Louisiana’s Restaurant shortly before 11:00 pm with the intent of robbing Simon. All three of them wanted money, but [M.] in particular, was intending to steal an expensive watch and gold chain that Simon owned.

Bird says that [M.] ‘just kept talking about a watch…worth lots.’ Bird indicates that the main planning of the robbery was done by [M.]; 12. [M.] entered the restaurant first followed by Bird and [T.]. [M.] was armed with a baseball bat. Bird and [T.] had unloaded pellet guns (pistols) that [M.] had provided to them. Bird, [M.] and [T.] were wearing ski masks; 13. [M.] began gesturing with his bat and swinging it; hitting Simon with it with various blows to Simon’s head and body. Simon was forced away from the Louisiana’s security camera in this manner by [M.]. The camera was also covered up.

As a result, the account of the assault incident is largely based on Bird’s warned statement; 14. [M.] turned his head briefly and Simon pulled off the ski mask off [M.’s] head to reveal his face. Simon said “Boys”, and [M.] became suddenly angry and began hitting Simon harder with the bat, Simon staggered and at that point Bird pushed Simon and Simon fell to the floor on his left side; 15. While Simon lay on his side, [M.] and [T.] began hitting him on the right side of his body. [M.] delivered blows with his bat to Simon’s head and body.

In total, Bird estimates that [M.] delivered three blows to the head with the bat and seven times to the body throughout the assault. [T.] “pistol whipped” Simon on his body and legs. Bird also delivered a hit to the head, but [M.] acknowledges that he delivered most of the blows. This assault lasted about several minutes; 16. During these minutes, Bird actively participated in the assault. He stomped on Simon’s head once, and kicked him several times in his body. At this point, [T.] said “I think I broke a rib”, meaning Simon’s rib. [M.] told Bird to stop kicking Simon and Bird did stop; 17.

Bird says that [M.] later told him that with one of the blows to Simon’s head, [M.] felt “something go in”. Bird says that Simon’s injuries ‘looked serious…man, his eyes were open and blood was coming out. The ear and just a big puddle there;’ 18. After the assault concluded, with Simon still on the floor, [T.] went outside to go into Simon’s vehicle to see if there was anything to steal, but he could not find anything inside the vehicle to steal.

Bird went to one of the tills to grab cash and took about 50 dollars in change. [M.] went to another till, grabbed all the paper money he could find, and also took some paper money off Simon’s person. Bird does not know how much was taken, but he saw [M.] with a wad of bills including some twenties and some fifties. Simon is robbed of his cash, cell phone, keys, and credit card. The three accused did not find the watch or gold chain; 19. The three all departed the restaurant and ran away. A short time later, they met at a nearby residential trailer and obtained a ride in the truck of Matthew Nagy.

Matthew drove them to the Lakeview apartments. Bird and [T.] sat in the back seat of the truck while [M.] sat up front with Matthew who was driving. Bird heard [M.] say to Matthew ‘I think I killed someone;’ 20. [YZ] had called 911 and was discovered hiding and scared in the restaurant; he later tells Cora that ‘two teenagers came in and did it.’ Simon was still conscious but confused when he is taken to La Ronge Hospital and then flown to Royal University Hospital in Saskatoon.

As a result of the beating of April 15, 2017, Simon Grant subsequently succumbs to his injuries and dies on the morning of April 17, 2017. Pictures of Simon in the restaurant right after the assault are attached as Exhibit ‘A’; 21. On April 19, 2017, an autopsy was conducted on the deceased. The autopsy report is attached as Exhibit ‘B’ and concludes the cause of death to be blunt force trauma to the head, consistent with multiple impacts on head, and not consistent with accidental trauma. Autopsy photos are also attached as Exhibit ‘C’; 22.

At the time of the offence, [M.] was on an undertaking with conditions not to communicate with [T.], and not to possess any weapons, stemming from an incident on April 9, 2017 when they were involved in a break, enter, and theft involving a shotgun and a rifle. [ 8 ] In advance of the sentencing proceedings, the Provincial Court ordered the production of a report canvassing the suitability of an Intensive Rehabilitative Custody and Supervision [IRCS] sentence and the “criteria for imposition of an adult sentence”. That report was prepared by Dr.

Donna Torrens, a psychologist with the Young Offender Team, Mental Health & Addictions Services, Saskatchewan Health Authority. She had been working with W.M. while he was remanded in custody and had administered various tests aimed at evaluating his situation. [ 9 ] Dr. Torrens recommended that W.M. be considered for an IRCS sentence. The most relevant features of her March 8, 2018, report are as follows: (

a) W.M. had many strong indicators for a high risk of violence without significant intervention. These included a violent lifestyle, strong criminal attitudes, a callous attitude toward victims, associations with antisocial peers, substance abuse, a disrupted family background, a history of physical and sexual abuse, and a lack of stability.

(

b) W.M. had an outstanding charge of break and enter with intent to steal a firearm at the time of the offences in issue here but had no youth criminal record. He did, however, acknowledge an ongoing history of trafficking (mainly marijuana but also cocaine), robberies, assaults and petty thefts. At the time of the offences, he was recruiting for a loosely organized street gang. (

c) On the positive side, W.M. had shown some insight into his difficulties and was intelligent. He learned quickly and had shown good emotional self-control and anger management. W.M. appeared to be capable of thinking ahead and weighing consequences before acting. (

d) Testing on a scale that screens for mental health symptomatology and psychosocial problems in youth indicated severe clinical concerns in the area of conduct disorder (defined as an ongoing pattern of breaching rules and violating the rights of others) and substance abuse disorder (consistent with W.M.’s self-reports of near daily marijuana consumption and regular cocaine and alcohol abuse). There were milder potential difficulties connected with post-traumatic stress disorder and major depression, both which were seen as possible emerging concerns tied to being in custody. (

e) The Hare Psychopathy Checklist: Youth Version indicated that, overall, W.M. was not in the range of strong psychopathic tendencies. He was said to have selective elements of remorse and empathy, in addition to relatively good self-control and goal driven behaviour. (

f) The Weschler Adult Scale of Intelligence test revealed that W.M. was estimated to have an overall intellectual ability equal to or better than 58 percent of same-aged peers. (

g) Based on these psychological testing results, as well as W.M.’s history and other clinical information, W.M. suffers from conduct disorder and substance-related disorders. By way of a “deferred diagnosis”, W.M. also has reactive attachment disorder. This was said to require further background documentation. (

h) W.M. has a mixture of both maturity and immaturity. In

summary terms, he was seen as “an intelligent, street-wise ‘survivor’” who had not developed emotionally, behaviourally, or judgment-wise to the maturity level of an adult offender. While presenting with very ingrained criminalized attitudes, W.M. was thought to have the potential to reduce his risk significantly with a longer-term intensive treatment plan. [ 10 ] Dr. Torrens prepared a second report, dated January 31, 2019, to update her original report. The most important aspects of that report are summarized below: (

a) W.M.’s diagnoses remained unchanged except for the fact that, because he had turned 18, he could be formally diagnosed with antisocial personality disorder (essentially the adult version of his previous diagnosis of conduct disorder). He had also been diagnosed with major depressive disorder, which was said to be in remission. (

b) W.M. had agreed that he had displayed a general pattern of cruelty to animals and some abusive behaviour toward his ex- girlfriend but his overall rating with respect to psychopathy continued to remain below cut-off scores of what would be considered potential “psychopathic” behaviour. (

c) After more than 18 months in custody, W.M. was viewed quite positively by Kilburn Hall Youth Centre personnel. He was reported to be one of the better behaved, respectful and “nice” youth in custody. He was seen as having made positive changes to his life while in custody and as having potential for rehabilitation. (

d) There had been three concerning incidents while W.M. was in custody. In the first, he had pushed another youth into a room where the youth was assaulted. In the second, he had hidden a needle in a stress ball. In the third incident, W.M. had been part of an escape plot that involved plans for the use of violence against Kilburn Hall staff. It appears to have been instigated by W.M.’s cousin, who was also at Kilburn Hall. [ 11 ] The sentencing judge also had two court-ordered reports from Dr. Declan Quinn, a psychiatrist at Royal University Hospital. In his first opinion in March of 2018, Dr.

Quinn reported that W.M. had no psychosis and was alert and oriented. He indicated that W.M. had described some symptoms of depression. He also concluded that there appeared to be a very strong suggestion that W.M. had undiagnosed ADHD and oppositional defiant disorder. In a follow-up report received by the Court in February of 2019, Dr. Quinn noted that W.M. was taking a medication normally used to treat depression and mood swings and that W.M. had no obvious depression. Dr. Quinn could find no evidence of ADHD. He said W.M. did not have schizophrenia and had no psychosis.

He offered the opinion that W.M. was fit to plead to the charges he faced. [ 12 ] In addition, the sentencing judge heard testimony from the provincial IRCS coordinator and from Kilburn Hall staff. I will refer to some aspects of their evidence later in these reasons. III.

THE SENTENCING DECISION [ 13 ] The sentencing judge dealt with both the question of whether W.M. should be sentenced as an adult and the question of the appropriate sentence in a single written decision. [ 14 ] The sentencing judge began his analysis by quoting the agreed statement of facts and reviewing the evidence that had been tendered by Dr. Torrens and other individuals who had worked with or observed W.M. He then turned to the issue of whether W.M. should be sentenced as an adult. He referred to s. 72(1) of the YCJA and acknowledging the two-prong test involved in the application of ss. 72(1) (

a) and (b). [ 15 ] As for s. 72(1) (

a) and displacing the presumption of diminished moral blameworthiness or culpability, the judge reviewed various aspects of the factual circumstances surrounding the planning and commission of the offence that, in his view, were sufficiently

sophisticated to be “adult-like” (at para 43). Next, referring to indicia of reduced moral blameworthiness that Abella J. had referenced in R v D.B. , 2008 SCC 25 , [2008] 2 SCR 3 [ D.B. ], he made several findings, each of them weighing in favour of the Crown’s position. All of this led the sentencing judge to conclude that the Crown had successfully rebutted the presumption of diminished moral blameworthiness or culpability. [ 16 ] The sentencing judge then turned to s. 72(1)(

b) and the issue of whether a youth sentence would be of sufficient length to hold W.M. accountable for his offences. He noted that the maximum youth sentence would be three years – two years in secure custody and one year under community supervision. Commenting on the prospect of an IRCS sentence, the judge noted his concern that such a sentence would be optional in the sense that W.M. could, at any point, simply stop taking programming and serve out his sentence. [ 17 ] The sentencing judge next referenced the severe level of violence involved in the attack on Mr. Grant and, in light of the kindness Mr.

Grant had shown to W.M., characterized the attack as being “evil and unjustified” (at para 52). He further concluded that the risk posed by W.M. once he was out of custody could not be managed with a youth sentence.

In the end, the sentencing judge held that a youth sentence would not be sufficient to hold W.M. accountable for his offending behaviour. [ 18 ] Having determined that W.M. should be sentenced as an adult, the sentencing judge noted W.M.’s extremely challenging childhood and his “diagnosed and suspected psychological and psychiatric conditions” (at para 58), commenting that, but for Gladue factors, he would have considered an even higher sentence than the one he was about to impose. [ 19 ] The sentencing judge then observed that W.M.’s co-accused, Austin Bird, had been sentenced to seven years.

He found that W.M. had been the architect of the robbery and the attack on Mr. Grant and that, as such, he should be subjected to a heavier sentence than Mr. Bird. Referring to the fact that W.M. had encouraged the sustained beating of Mr. Grant and characterizing Mr. Grant’s death as “virtually the most serious violent offence possible in a manslaughter context” (at para 60), the judge found that a nine-year sentence was appropriate. He made that sentence concurrent on all three counts and, as well, made the mandatory DNA and firearms orders.

Taking into account pre-sentence custody enhanced by a factor of 1.5, the sentence going forward was fixed at 70 months. IV. ANALYSIS [ 20 ] W.M. advances three lines of argument. First, he submits the sentencing judge erred in finding that the Crown had rebutted the presumption of diminished moral blameworthiness or culpability. Second, he argues that the sentencing judge erred in concluding that a youth sentence would not be of sufficient length to hold him accountable for his offending behaviour.

Third, and in any event, W.M. contends that the nine-year sentence imposed by the sentencing judge should be reduced. I will deal with each of these issues in turn. However, before doing so, it is necessary to confirm the governing standard of review. A. Standard of review [ 21 ] The decision to sentence a young person as an adult is considered part of the sentence for the purposes of an appeal. See: YCJA , s. 72(5) . A sentencing judge’s determinations under s. 72 attract the same standard of review as does the appeal of a sentence.

This means that appellate intervention is justified only when the sentence is demonstrably unfit or there has been an error in principle, a failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigating factor. Any misstep of this latter sort must have had an impact on the sentence. The weighing or balancing of factors can warrant appellate action only if it is done unreasonably. See: R v Friesen , 2020 SCC 9 at para 26 , 391 CCC (3d) 309 [ Friesen ]; R v R.D.F. , 2019 SKCA 112 at para 21 , 382 CCC (3d) 1 [ R.D.F. ], and the authorities cited thereat.

As for the purely factual dimension of a s. 72 inquiry, a sentencing judge’s findings will stand unless a palpable and overriding error is demonstrated. See: R.D.F. at para 22 . [ 22 ] In D.B. , the Supreme Court spoke directly to the approach that should be employed in the appellate review of decisions made pursuant to s. 72 of the YCJA .

It explained as follows: [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 suggest that he acted on an improper principle or considered 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. … [ 23 ] As indicated in R v Prockner , 2018 SKCA 52 at para 66 , this Court may not simply reconsider the evidence presented to the sentencing judge and then substitute its assessment of the issues for the sentencing judge’s assessment of them. B. The presumption of diminished moral blameworthiness [ 24 ] Young persons are presumed to have diminished moral blameworthiness.

Because of their age, they have “heightened vulnerability, less maturity and a reduced capacity for moral judgment”. See: D.B. at para 41 . This presumption lies at the heart of the YCJA . [ 25 ] Section 72(1)(

a) requires the Crown to rebut the presumption of diminished moral blameworthiness or culpability before a young person can be sentenced as an adult. Justice Tholl explained the operation of s. 72(1) (

a) as follows in R.D.F. : [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’sinability to appreciate the consequences of his or her actions are at the root of the presumption. In order for the Crown to rebut thispresumption, it must establish the offender demonstrated the level of maturity, moral sophistication and capacity for independent judgmentof 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 tothe offence, planning, sophistication, role played, motivation and any other relevant factors) are at the core of this determination. [26] In addressing the question of whether the Crown had rebutted the presumption of diminished moral blameworthiness, thesentencing judge focused on the crime committed by W.M. and, as noted earlier, found that it was sophisticated enough to be “adult-like”.He referenced the considerations identified in D.B. by writing as follows: [44] In referring back to the Alberta Court of Appeal in J.F.R., reference was made to Abella, J. in R v D.B., 2008 SCC 25 referring tofour factors to consider on the issue of diminished moral blameworthiness.

They are: 1. Diminished empathy – this accused showed little empathy to Simon Grant. However, as indicated, the psychological testing showed hecould be selectively empathetic. 2. Heightened impulsiveness – with the planning W.M. put into this robbery, it would seem he is anything but impulsive. This is not a caseof three teenagers walking by a business and concluding “let’s go get some money”. This was targeted because of the potential treasure atthe end of the rainbow – the Rolex watch. 3.

Susceptibility to peer pressure – it is clear that W.M. is the planner of this and was not subject in any way to peer pressure. 4. Diminished ability to reason and appreciate the consequences of ones actions – initially W.M. believed that Simon Grant would give upwithout a fight and not much more would be required. However, when Simon Grant put up a fight, W.M. made a conscious decision toescalate the violence to achieve his goal. Regardless of the consequences. [27] W.M. contends that the sentencing judge erred in his consideration of s. 72(1)(

a) by taking an improperly narrow view of theevidence that was relevant to the question of diminished moral blameworthiness. He suggests the sentencing judge was overwhelmed bythe seriousness and brutality of the offence itself and erred by failing to consider relevant background matters and Gladue factors. [28] I agree with W.M. that the sentencing judge erred in his approach. But for a passing reference to potential psychological andpsychiatric issues, the relevant part of his decision was focused solely on the planning of the robbery and the particulars of how itunfolded.

He appears not to have taken into account anything else in deciding that the presumption of diminished moral blameworthinessand culpability had been rebutted. This was an error of principle. Moreover, it was clearly material to his decision. [29] That said, a point of clarification may be appropriate. The circumstances of an offence are not irrelevant to the analysisdemanded by s. 72(1)(a). To the contrary, they are self-evidently of considerable significance to the inquiry into a young person’s moralblameworthiness. See: R v R.M., 2020 ONCA 231 at para 29, 387 CCC (3d) 55.

But, in making a determination under s. 72(1)(a), “a youthcourt 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”. See: R.D.F. at para 36; see also: R v J.F.R., 2016 ABCA 340 at para 26,46 Alta LR (6th) 341; and R v M.W., 2017 ONCA 22 at para 12, 346 CCC (3d) 319 [M.W.]. [30] I turn, therefore, to the circumstances of this case.

It is suggested, on W.M.’s behalf, that he should be seen as an immatureyouth damaged by a background of abuse, disadvantage and hardship who impulsively hatched an unsophisticated robbery plot that endedup going terribly wrong. In light of this, it is submitted that the presumption of reduced moral blameworthiness has not been rebutted.There are certainly elements of truth in this characterization of W.M.’s situation and there is no denying the difficulties and challenges thathe has faced. Nonetheless, I conclude that the Crown has met its obligation under s. 72(1)(a).

Let me explain. [31] As a preliminary point, I note that W.M. argues in his factum that the approach to sentencing required by R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue], and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee], in respect of s. 718.2(

e) of theCriminal Code is directly applicable to the analysis of the moral blameworthiness issue presented by s. 72(1)(

a) of the YCJA. In my view,this line of thinking has to be approached with considerable caution.

Section 718.2(

e) provides that all available sanctions other thanimprisonment that are reasonably available and consistent with the harm done to victims or to the community should be considered for alloffenders “with particular attention to the circumstances of Aboriginal offenders”. The social and economic circumstances faced by anAboriginal offender can, depending on the facts, diminish their culpability and thereby impact the nature of an appropriate sentence.

Thisis because, as indicated in s. 718.1 of the Code, the fundamental principle of sentencing is that a sentence must be proportionate to thegravity of the offence and “the degree of responsibility of the offender”. [32] But, the issue raised by s. 72(1)(

a) of the YCJA is subtly different. The question it poses is whether the presumption of reducedmoral blameworthiness common to all young people because of their youth has been rebutted so as to make an adult sentence appropriate.Thus, s. 72(1)(

a) involves a threshold-type inquiry focused specifically on what might be called the level of moral maturity of the youngperson. It is not an inquiry that, as per Gladue and Ipeelee, considers how the circumstances of an offender might limit their culpabilityand thereby affect the particulars of the appropriate bottom-line sanction. That said, W.M.’s difficult history certainly serves as thebackground for any consideration of his moral blameworthiness and informs the analysis required to determine if he should be sentencedas an adult.

Those Gladue factors that are relevant to his moral blameworthiness, as per s. 72(1)(a), must be taken into account. [33] With that point made, let me now deal with the detail of the s. 72(1)(

a) analysis. To begin, W.M. was 17 years and 4 monthsold when the offences in issue here were committed. In other words, he was almost an adult in chronological terms. [34] W.M. has no intellectual impairments. Dr. Torrens testified that his IQ is well within the normal range with strengths in someareas and at least average levels in everything else. A Weschler Adult Scale of Intelligence test revealed that W.M.’s overall intellectualability was estimated at equal to or better than 58 percent of same-aged peers. [35] W.M. was not found by Dr. Quinn to be suffering from any kind of psychosis. Dr. Quinn also found that W.M.’s self-reported

executive functioning – his ability to pay attention, regulate his mood, initiate multiple activities and stay focused – was normal. Dr. Torrens concluded that W.M. was not in a testing range that was indicative of strong psychopathic tendencies. [ 36 ] In her first report, Dr. Torrens described W.M. as largely showing good emotional self-control and anger management. She further observed that he appeared capable of thinking ahead and weighing consequences before acting.

Those assessments were made while W.M. was at Kilburn Hall but there is no suggestion that these were characteristics or qualities that somehow developed only after W.M. had been taken into custody. That said, I note Dr. Torrens also observed, somewhat inconsistently at page 10 of her first report, that W.M. had not “fully developed” in his capability to make wise decisions. [ 37 ] W.M. was found by Dr. Torrens, in her first report, to meet the criteria for a diagnosis of conduct disorder.

It is not clear from the record, however, how or if that condition impacted W.M.’s level of moral sophistication, independent judgment or maturity more generally. I note that Dr. Torrens did not mention conduct disorder in the

section of her report headed “Maturity”. [ 38 ] In her first report, Dr. Torrens also concluded that W.M. had substance-related disorders, referring to his self-reported abuse of alcohol, cocaine and cannabis. It is not at all clear from the record how or if this condition can be said to impact the variables relating to W.M.’s maturity – matters such as his capacity for empathy, his level of impulsiveness, his susceptibility to peer pressure, and his ability to reason and appreciate consequences. As for the impact of drugs and alcohol on the offence itself, I observe that W.M. apparently advised Dr.

Torrens and Mr. Seidler that he had been under the influence of alcohol and cocaine on the night when Mr. Grant was assaulted. However, this is not a point made in the agreed statement of facts and, as a result, I am loathe to attach a great deal of significance to it. [ 39 ] W.M. functioned quite well at school. According to the principal, there were not many problems that he was aware of in terms of W.M.’s ability to relate to people. W.M. was reported as making an effort to be respectful of teachers, to get along with other students and to make an attempt at doing his work.

His attendance record in the period leading up to the offence was perfect and he made a point of being at school for tests and important events. [ 40 ] W.M. had been in the workforce. He had been employed, albeit apparently only briefly, at True North Rentals and the Co-op Marketplace in La Ronge. [ 41 ] As indicated by the author of the pre-sentence report in his testimony, W.M. preferred to associate with older people who he called “homies”. The younger people that he spent time with were “just there for money”. W.M. did not get anything else from his relationship with them.

He had a reputation for violence and these individuals knew that he was not someone to cross. [ 42 ] W.M. is socially skilled, according to Dr. Torrens, and a leader in the opinion of Jamie Kidd, a facility worker at Kilburn Hall. Dr. Torrens, in her testimony, also said that W.M. has good social skills and a good sense of humour and is able to be quite friendly. She observed that he can be manipulative. There is no suggestion, in any of the circumstances relating to W.M.’s drug trafficking or lifestyle more generally, that he in any way was under the sway of someone else or acting as a result of peer pressure.

This said, while in custody, it appears W.M. was influenced by an incarcerated relative to become involved in the escape plot. [ 43 ] W.M.’s demonstrated ability to manage his difficult personal circumstances is also revealing. Although it yielded only a marginal and rough existence, W.M. was able to sustain himself by running a drug trafficking business. He exercised adult-like skills by recruiting a gang to assist him, by exploiting his social inferiors in that regard and by strategically aligning himself with a larger gang. [ 44 ] W.M. expressed remorse over Mr.

Grant’s death and indicated a willingness to take responsibility for his actions. Dr. Torrens observed, at page 6 of her first report, that W.M. had what she termed “selective elements of remorse and empathy”. [ 45 ] Dr. Quinn was asked, when he testified, whether he had made an assessment of W.M.’s maturity, either compared to other youth his age or to adults. In responding, he made reference to such matters as the ability to understand things, to have insight into feelings, and to understand the implications of actions.

He then said, “Yesterday, there was a young girl that, if I had been given the false ID that she was 22, I would’ve believed it, but I know she’s 15, and she’s had her difficulties. But she is a person who presents with the qualities that are very workable. And this was my impression with [W.M.]. That I could see him potentially having a role as a leader in a -- in a group setting, if he can leave some of the things behind and get beyond them”. I take this to mean that, in Dr. Quinn’s view, W.M. presented as someone well beyond 17 years of age. [ 46 ] I come then, more specifically, to the evidence of Dr.

Torrens concerning W.M.’s level of maturity. She began, at page 7 of her first report, by suggesting that W.M. “appears to have a mixture of both maturity and immaturity”. I take her to have advised that W.M.’s remorse and his preparedness to take responsibility were signs of maturity. She went on, at page 9, to offer a

summary of her views by indicating that, while W.M. is “an intelligent, street-wise ‘survivor’, it is not thought that he has developed emotionally, behaviourally or judgment-wise to the maturity level of an adult offender”. [ 47 ] This bottom-line assessment must be considered in context. First, of course, it was not Dr. Torrens’s province to offer an opinion on the issue of whether the presumption of moral blameworthiness, as per s. 72(1)(a), had been rebutted and I do not understand her to have done that. Second, as Dr. Torrens explained in her testimony, there is no formal “test” for maturity.

Rather, an assessment of maturity is a subjective exercise that takes into account a variety of factors. It is a judgment call. Third, Dr. Torrens’s assessment of W.M.’s maturity has to be understood with an appreciation of the fact that, in her apparent view, criminal offending is almost by definition an indicator of immaturity. For example, while acknowledging that W.M. had “streetwise maturity”, she characterized his initiative to get masks and weapons before robbing Mr. Grant as being “criminal, not mature”. There is reason, therefore, to give Dr.

Torrens’s views about W.M.’s maturity less weight than W.M. suggests that they should be given. [ 48 ] Finally, it is necessary to consider the central offence itself. W.M. suggests that his conduct on the night in question should be seen as involving impulsiveness and a diminished ability to appreciate the consequences of his actions. However, given the governing standard of review, there is no basis to take issue with the sentencing judge’s conclusions that the planning and execution of the crimes in issue here were sufficiently sophisticated as to be “adult-like”, and “anything but impulsive”.

Nor is there room to contest the sentencing judge’s conclusion that W.M. had not in any way been subject to peer pressure in relation to the offence. The following findings of the

sentencing judge are of particular note in this regard: (

a) W.M. had spoken frequently and for some time about Mr. Grant’s Rolex watch and its value and the fact that he wanted it; (

b) W.M. recruited his two co-accused to help him; (

c) W.M. planned a food order and delivery to entrap Mr. Grant; (

d) W.M. obtained masks for the three confederates to conceal their identities. He also secured weapons; (

e) W.M. patiently waited for 40 minutes for Mr. Grant to arrive with the food that had been ordered; (

f) W.M. developed an alternate plan when Mr. Grant failed to arrive; (

g) In developing the plan to go to the restaurant, W.M. discussed and predicted how Mr. Grant would react; (

h) W.M. made a conscious decision, in the course of the robbery, to escalate the level of violence against Mr. Grant in order to achieve his goal of stealing the Rolex watch; (

i) During the robbery, W.M. moved Mr. Grant away from the range of view of the security camera; and (

j) W.M. created an escape plan and ignored the inner voice telling him that Mr. Grant was seriously injured and quite possibly dying. [ 49 ] It is true, of course, that the killing of Mr. Grant was not itself planned in advance. But, nonetheless, the sentencing judge had ample evidentiary grounds for concluding that the armed robbery – with its inherent and substantial risk of serious violence – had been laid out in an adult fashion and that, once the robbery began, W.M. made a conscious decision to escalate the attack on Mr. Grant. Notably, Mr.

Seidler testified that, in his experience, the robbery involved a lot more planning and was more organized than would usually be the case for an offence committed by a youth. [ 50 ] In

summary, there is no doubt that W.M. has had a difficult and compromised life. The answer to the question raised by s. 72(1) (

a) in this case is not entirely clear cut but, considering all of the factors and indicators relevant to a determination of the question raised by s. 72(1)(a), I am satisfied that the Crown has rebutted the presumption of reduced moral blameworthiness or culpability. W.M.’s argument on this point therefore fails. C. Adequacy of a youth sentence [ 51 ] Section 72(1) (

b) of the YCJA sets out the second burden that the Crown must meet before an adult sentence may be imposed on a young person. It provides that a sentencing judge must be satisfied that a youth sentence would not be of sufficient length to hold the young person accountable for his or her offending behaviour. [ 52 ] The basic approach to the analysis demanded by s. 72(1)(

b) was summarized as follows by Tholl J.A. in R.D.F. : [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. [ 53 ] In dealing with s. 72(1) (b), the sentencing judge began by indicating that he was required to examine the seriousness and circumstances of the offence, the age, maturity and character of W.M., the background and criminal record of W.M., and other relevant factors.

He indicated that the real problem he had with an IRCS sentence was that it would be for a maximum length of three years and was optional in the sense that there would be nothing to stop W.M., after the sentence was imposed, from simply walking away from the relevant programming and serving out the balance of his time. The sentencing judge then commented on the nature of the offence in issue, describing it as “quite literally an orgy of violence and blood” and stating that, given the kindness Mr. Grant had shown to W.M., it was “difficult to think of a more evil and unjustified attack” (at paras 49 and 52).

He found that, given the extreme violence involved in the offence, the relatively sophisticated robbery plan and the kindness that Mr. Grant had shown to W.M., a youth sentence would not reflect the shock and horror of right-thinking members of society. The sentencing judge went on to find that the risk posed by W.M. after he was out of custody could not be safely managed with a youth sentence. Referencing Dr.

Quinn’s evidence, he said that three years would not be enough time for W.M. to address the various challenges he faces. [ 54 ] W.M. points to what he submits are a number of errors in the sentencing judge’s analysis. In general terms, his arguments on this front amount to an invitation for the Court to simply remake the decision of the sentencing judge. This sort of approach is, of course, precluded by the governing standard of review.

I will nonetheless examine the particulars of the submissions made by W.M. in relation to s. 72(1) (b). [ 55 ] First, W.M. suggests that the sentencing judge erred by overlooking the time he had spent in custody prior to the sentencing decision and thereby failed to appreciate that, by virtue of an IRCS sentence, he would ultimately have had the advantage of more than just the three years of programming involved in the IRCS sentence itself. I see little merit in this argument.

The sentencing judge was clearly aware of the time W.M. had spent in pre-sentence custody and he had heard considerable evidence about W.M.’s performance during that period. During her sentencing submissions, W.M.’s counsel had specifically argued that a three-year IRCS sentence would amount to what

would be, in effect, “a five-year IRCS sentence” when pre-sentence custody was taken into account. Further, the sentencing judge had acknowledged during argument that W.M., by virtue of his time spent in pre-sentence custody, already had “two years of -- of treatment”. Therefore, in the end, the sentencing judge’s comments about the adequacy of an IRCS sentence can only be reasonably understood as being a reference to a three-year sentence that would be served in addition to the time spent, and programming received, by W.M. in pre- sentence custody.

The judge cannot be taken to have somehow overlooked W.M.’s time in pre-sentence custody. [ 56 ] W.M. also contends that the sentencing judge erred by rejecting an IRCS sentence on the basis that it could not guarantee his full rehabilitation by the end of its three-year term. In my view, this line of criticism misreads the sentencing judge’s decision. The sentencing judge did summarize Dr. Quinn’s testimony as being to the effect that some of W.M.’s issues could take five to ten years or longer to “correct”.

However, that comment was made in the context of a recognition that the point in issue was one of risk management, not risk elimination. This is clear from paragraph 55 of the sentencing judge’s decision where he said, by way of an overview comment, that “the risk posed by W.M. once he is out of custody cannot in my view, be safely managed with a youth sentence” (emphasis added). I do not accept the suggestion that the sentencing judge believed that an IRCS sentence would be appropriate only if it could somehow guarantee W.M.’s rehabilitation or guarantee that he would not reoffend.

It is self-evident that no sentence, adult or youth, involves any such assurance. See: M.W. at para 80 ; R v A.O. , 2007 ONCA 144 at para 58 , 218 CCC (3d) 409 [ A.O. ]; and R v H. (C.T.) , 2015 MBCA 4 at para 26 , 318 CCC (3d) 240 [ H. (C.T.) ]. [ 57 ] W.M. further suggests that the sentencing judge overemphasized the seriousness of the offence in his s. 72(1) (

b) analysis and failed to give effect to his prospects of rehabilitation under an IRCS sentence. His counsel stresses that W.M. had expressed remorse, was seen as being motivated and was reported to be making progress toward rehabilitation. She says this was not properly taken into account by the sentencing judge. I am not persuaded by this argument either. [ 58 ] The term “accountability” is not statutorily defined. However, I agree with the appellate-level decisions that have concluded that, while sentencing under the YCJA is “offender-centred”, it is not “offender exclusive”.

See, for example: M.W. at para 40 ; R v S.N.J.S. , 2013 BCCA 379 at para 28 , 305 CCC (3d) 160; and R v Okemow , 2017 MBCA 59 at para 67 , 353 CCC (3d) 141. Rehabilitation and integration are important aspects of the inquiry demanded by s. 72(1) (

b) but they are not the whole inquiry or determinative of it. See: R v Anderson , 2018 MBCA 42 at para 83 , 361 CCC (3d) 313; H. (C.T.) at para 23 ; R v Ellacott , 2017 ONCA 681 at para 38 ; A.O. ; and R v A.A.Z. , 2013 MBCA 33 at para 94 , 298 CCC (3d) 59. For a sentence to hold a young person accountable in the relevant sense, it must reflect “the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct”. See: A.O. at para 47 .

The normative inquiry requires a consideration of societal values including, for example, whether the offence was shocking to the community. See: R v McClements , 2017 MBCA 104 at para 45 , 356 CCC (3d) 79; and A.O. at para 48 . In other words, there is no doubt that accountability includes consideration of the nature and seriousness of the offence, the role played by the young person in its commission, and its impact on the community. [ 59 ] None of this is to say that a serious offence, even a very serious offence like murder or manslaughter, must invariably attract an adult sentence.

Any such idea is irreconcilable with the terms of s. 42 of the YCJA and with s. 72 itself. The appropriate approach in any particular case depends on the factual specifics of that case. Here, the sentencing judge could have perhaps laid out his analysis somewhat more elegantly, but he made no reversible error in emphasizing the particulars of the offence that he was dealing with. It was extremely serious in normative terms. Mr. Grant had acted with great kindness and generosity toward W.M. He was repaid with a robbery and brutal beating that led to his death. W.M.’s role in the offence was central.

He planned the robbery, directed his confederates to attack Mr. Grant and he himself delivered several blows to Mr. Grant’s head with a baseball bat. Moreover, the harm done by W.M. was considerable. His crime shocked the local community and devastated Mr. Grant’s family. All of these matters are ones that the sentencing judge was entitled to weigh in his consideration of accountability.

Regardless of the possible efficacy of an IRCS sentence, he was not obliged to treat rehabilitation as the dominant or controlling consideration in his decision-making. [ 60 ] W.M. also takes issue with the sentencing judge’s reservations about an IRCS sentence because, in the judge’s view, it would be “truly optional”, i.e., W.M. could avoid its programming elements if he so chose. While it is technically correct that, after the imposition of an IRCS sentence, W.M. could walk away from the programming side of that sentence, this was a highly speculative concern on the part of the sentencing judge.

There was nothing in the record to suggest that W.M. was not committed to the programming he had been taking or that he might somehow be manipulating the system so that he could secure a three-year IRCS sentence and then turn his back on its programming dimension. Further, Jennifer Peterson, the provincial IRCS coordinator, testified that, to her knowledge, there had never been a situation where an IRCS sentence had been discontinued because of an offender’s failure to participate in programming.

Accordingly, I find that the sentencing judge erred by speculating about W.M. abandoning the programming aspect of an IRCS sentence. [ 61 ] However, I am not persuaded that the sentencing judge’s error in this regard is enough to upset his overall conclusion about the accountability issue under s. 72(1) (b).

Read in its entirety, his analysis on this point went well beyond this particular issue and included, most significantly, a conclusion that an IRCS sentence, in principle, would not adequately reflect the seriousness of W.M.’s crime and the role he played in its commission and, in addition, a conclusion that an IRCS sentence would in any event not be long enough to make W.M.’s risks manageable in the community. Given the governing standard of review, there is no proper basis for overturning his assessment of those points.

This is important and ultimately determinative because they carry enough independent weight to sustain the sentencing judge’s overall conclusion about s. 72(1) (b). [ 62 ] In the end, therefore, I am not persuaded that the sentencing judge made any error in respect of s. 72(1) (

b) that went to the bottom line of his decision. There is no basis for interfering with his assessment that a youth sentence would not hold W.M. accountable for his offending behaviour. [ 63 ] Given my conclusions that the sentencing judge’s findings about both ss. 72(1) (

a) and (

b) must stand, it follows that he made no reversible error in holding that an adult sentence should be imposed on W.M. D. The sentence imposed [ 64 ] W.M.’s final line of argument is that the nine-year sentence imposed by the sentencing judge should be set aside. He submits the judge placed an inappropriate reliance on the sentence that had been given to his co-accused, Mr. Bird, and failed to consider several

factors relevant to the determination of an appropriate sentence. This is framed as an argument about the overall fitness of the sentence,but I take W.M. to also argue that the sentencing judge erred in principle by proceeding as he did. [65] Sentencing decisions are entitled to a considerable amount of deference. This Court cannot simply reweigh the evidence andsubstitute its sense of an appropriate sentence for the conclusion of the sentencing judge.

All of this was explained as follows by theSupreme Court in Friesen: [26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrablyunfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principleinclude an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor.

Theweighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight toanother, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135 C.C.C.(3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can onlyintervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44).

If an error inprinciple had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if thesentence is demonstrably unfit. [27] If a sentence is demonstrably unfit or if a sentencing judge made an error in principle that had an impact on the sentence, anappellate court must perform its own sentencing analysis to determine a fit sentence (Lacasse, at para. 43). It will apply the principles ofsentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range.

Thus,where an appellate court has found that an error in principle had an impact on the sentence, that is a sufficient basis for it to intervene anddetermine a fit sentence. It is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or fallsoutside the range of sentences imposed in the past. [66] The sentencing judge’s analysis with respect to the question of an appropriate sentence was abbreviated.

After making a two-sentence reference to the Gladue factors bearing on W.M.’s situation and indicating that he had paid close attention to W.M.’s “diagnosedand suspected psychological and psychiatric conditions” (at para 58), the sentencing judge commented that, but for Gladue factors, hewould likely have considered a higher sentence than the one he was about to impose. [67] The sentencing judge then set out the whole of his analysis in these terms: [59] The co-accused Austin Bird was sentenced to seven years.

I agree with the Crown that there is no evidence that either co-accusedwould have tried to rob Simon Grant but for the influence of W.M. In fact, there is no evidence that Simon Grant was even on their radarscreen. I find that clearly W.M. is the architect of this robbery and this attack. His sentence must be greater than that of the co-accusedAustin Bird. By way of editorial comment, the co-accused T.T. is likely the very youth contemplated by the many cases who wasimmature and easily led by peer pressure. Not W.M. [60] I am aware that W.M. had no criminal record when this occurred.

However, I will not ignore the severe violence and senselessnessof this attack. If one decides to rob a victim, just do it. Get it over with. But when one beats and beats and beats the victim with a baseballbat and encourages others to beat a defenseless victim with guns and to kick and punch him while he is down, it moves this offence intovirtually the most serious violent offence possible in a manslaughter context. I therefore sentence this accused to nine years in custody. Hehas earned credit for roughly 25 months, he has been in remand which when enhanced by a factor of 1.5 equals 37.5 months.

I chose toround that off to 38 months. Thus, the sentence going forward is 70 months or alternatively five years and ten months. [68] In my view, this line of reasoning fails to properly respect the fundamental principle that sentencing is a highly individualizedprocess where, as Caldwell J.A. explained in R v Whitehead, 2016 SKCA 165 at para 26, 344 CCC (3d) 1 [Whitehead], “the gravity of theoffence and the role the offender played in its commission must be considered alongside the degree of responsibility of the offender,having had regard to the offender’s unique individual circumstances.

Differences in these considerations may well account for variationsin sentence even as between co-accused provided the predominant goal of sentence proportionality is achieved” (emphasis added). In thiscase, just as in Whitehead, there was a subordination of the unique circumstances of the offender to an overemphasis on sentencecomparability with the offender’s co-accused. See: Whitehead at para 51. [69] The sentencing judge’s decision to tie W.M.’s sentence directly to the one imposed on Mr. Bird is especially problematicbecause there was nothing on the record about Mr. Bird’s personal circumstances.

The sentencing judge was not presented with anyinformation to help him understand Mr. Bird’s background or how it might have affected the idea of an appropriate sentence in Mr. Bird’scase. There was a statement by the prosecutor during argument to the effect that the sentencing judge could take “judicial notice” of thefact that Mr. Bird had had no criminal record but there was no more than that assertion for the sentencing judge to work with. Moreover,the seven-year sentence imposed on Mr. Bird was apparently arrived at by way of a guilty plea and a joint submission.

This, as explainedin Whitehead at paragraph 50, called for an even greater level of caution on the part of the sentencing judge. [70] I also agree with W.M. that the sentencing judge failed to consider mitigating factors relevant to his sentencing. These includedthe entering of a guilty plea, his repeated and heartfelt expressions of remorse and his lack of a criminal record.

The sentencing judge alsomade no reference to W.M.’s positive performance in pre-sentence custody. [71] Thus, as is apparent, I conclude that the sentencing judge made errors of principle in the course of his sentencing analysis.Those principles clearly affected the bottom line of his decision. As a result, it falls to this Court to determine a fit sentence.

This is bestaccomplished by considering, first, the gravity of W.M.’s offence and, second, his degree of responsibility, all as per the fundamentalprinciple of sentencing as set out in s. 718.1 of the Criminal Code. [72] There can be no doubt that W.M.’s crime was very grave. Mr. Grant had opened his home to W.M., a complete stranger. W.M.repaid that generosity with a robbery and an extremely brutal beating that led to Mr. Grant’s death. The crime had a deep impact on thecommunity and it devastated Mr.

Grant’s family, both emotionally and financially. [73] Turning to W.M.’s degree of responsibility for the offence, I note, to begin, that he was the architect of the robbery, that he

directed his confederates to attack Mr. Grant and that he, himself, struck Mr. Grant several times on the head with a baseball bat. On the other hand, W.M.’s young life has been extremely difficult. He grew up with little or no family structure or similar supports and he had lived in a state of great impermanence, suffering various kinds of abuse and being plagued by drug and alcohol problems. W.M. had essentially lived by his own wits since a young age. He was, in many ways, a case study in Gladue factors. [ 74 ] I note, as well, that W.M. has offered his heartfelt apologies to Mr.

Grant’s family, that he pled guilty to the offence of manslaughter and that, since being taken into custody, he has made progress to realize his self-pronounced goal of rehabilitation. [ 75 ] It can be somewhat difficult to identify the appropriate sentence for a manslaughter offence because the underlying facts of the offence vary a great deal from case to case. Nonetheless, there are some Saskatchewan decisions that shed light on the question of an appropriate sentence. I will mention two decisions of this Court in particular: (

a) R v Thorne , 2000 SKCA 131 , 199 Sask R 278, involved an 18-year-old accused with no criminal record. She was, however, on bail awaiting trial on other charges. She was a drug addict and hatched a plan with her co-accused. They attended the deceased’s residence under the pretense of buying drugs and then forced their way in with tire irons while demanding money and drugs. Her two co- accused began attacking the victims with the tire irons. A third confederate stabbed one of the victims and he died from his wounds. Her sentence was increased from two and one-half years to five years of imprisonment by this Court. (

b) R v Littlewolfe , 2002 SKCA 143 , 227 Sask R 245, involved the accused and others beating a man to death with a wooden board. One of them stole his wallet. The accused played a major role in the offence but had no criminal record and had been responsive to programs accessed while on bail. His sentence was reduced from ten years to eight years by this Court.

See also: R v Strongquill , 2016 SKQB 397 ; R v Janvier , 2020 SKPC 12 ; R v Watetch , 2019 SKQB 147 ; and R v Key , 2000 SKCA 127 , 199 Sask R 239. [ 76 ] Taking into account all of the relevant circumstances in this case, including Gladue factors, I find that a fit sentence would be one of seven years of incarceration, less credit of 38 months for remand time. V. CONCLUSION [ 77 ] W.M.’s appeal is allowed to the extent of reducing his sentence from nine years to seven years. All other aspects of his sentence remain in place. “Richards C.J.S.” Richards C.J.S. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.

I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.