COURT OF QUEEN S BENCH OF MANITOBA

Transcription

1 Date: Docket: YO (Winnipeg Centre) Indexed as: R. v. Green Cited as: 2017 MBQB 181 COURT OF QUEEN S BENCH OF MANITOBA BETWEEN: ) APPEARANCES: ) HER MAJESTY THE QUEEN ) Cindy Sholdice ) and Chantal Boutin ) for the Crown - and - ) ) Bill Armstrong ) for the accused DELANEY MICHAEL GREEN, ) ) Judgment delivered: Accused. ) November 21, 2017 TOEWS J. Introduction [1] Mr. Green, who is now 21 years of age, has been convicted by a jury of the offence of second degree murder which he committed while he was a 17-year-old youth. Pursuant to s. 64(2) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the YCJA), the Attorney General gave notice of the intention to seek an adult sentence. Counsel for Mr. Green did not oppose the imposition of an adult sentence and following the sentencing hearing, I sentenced Mr. Green to life imprisonment with a period of parole

2 Page: 2 ineligibility of seven years. I ordered a placement report and advised counsel that I would provide my written reasons for my decision prior to the placement hearing. These are my written reasons. [2] I wish to acknowledge that my reasons are based substantially on the extensive submission made to the court by Crown counsel. After considering that submission, and given the assenting position of defence counsel, I am satisfied that the submission properly sets out the matters which I must consider in imposing the sentence. Circumstances of the offence [3] Although it is the jury that decided the factual basis upon which it convicted Mr. Green of second degree murder, it is apparent by virtue of the conviction of second degree murder that it did not accept that Mr. Green was acting in self defence and therefore entitled to an acquittal on that basis, or that he should only be convicted of manslaughter on the grounds that he was intoxicated to the point that he did not have the intent to commit second degree murder. [4] On that basis, it can be properly concluded that the jury agreed with the position of the Crown contained in my final instructions. That position may be summarized as follows: On February 14, 2014, at the First Nation community at Bloodvein, Manitoba, Mr. Delaney Green killed the deceased, Mr. Timothy Goosehead by stabbing Mr. Goosehead once in the neck, outside a residence at Bloodvein and six more times after Mr. Goosehead was on the ground. The Crown says that in stabbing Mr. Goosehead, Mr. Green either meant to kill

3 Page: 3 Mr. Goosehead, or meant to cause bodily harm that he knew would likely cause Mr. Goosehead s death and was reckless as to whether or not death ensued. The Crown s position is that Mr. Green was not acting in self defence when he stabbed Mr. Goosehead. Rather, Mr. Green wanted payback for Mr. Goosehead s actions earlier that night at Mr. Goosehead's residence where Mr. Green, Mr. Goosehead and two other youths had been drinking. The opportunity to do so arose a short time later when Mr. Goosehead apologized to Mr. Green and handed Mr. Green the knives he was carrying when they met outside the residence where Mr. Goosehead was killed. In addition, the Crown s position is that while there certainly was drinking and possibly drug use prior to Mr. Goosehead s death, there was no evidence that this negated the required intent for murder and the Crown therefore asked the jury to return a verdict of guilty to second degree murder. This, the jury did. Additional Background Material [5] A number of exhibits were submitted at the sentencing hearing, including: a) A pre-sentence report written by Jennifer Williams dated September 9, 2016; b) A supplementary report written by Leann Mastin dated August 2, 2017; c) A forensic report written by Dr. Garry Fisher dated July 12, 2017;

4 Page: 4 d) A Manitoba Corrections "Running record Report" covering the time period February 11, 2014 to June 21, 2017; e) A pre-sentence report written by Sharon Wood dated April 14, 2012; f) A probation order imposed by Provincial Judge Lerner on October 7, 2013 at Winnipeg, Manitoba; and g) A probation order imposed by Provincial Judge Schille on April 18, 2012 at Bloodvein, Manitoba. [6] Crown counsel referred to those materials extensively in her submission to the court and I rely on that material in arriving at my conclusions in this case. Overview of the Law [7] By way of introduction, I note at the onset that various amendments to the YCJA came into effect on October 23, While the amendments removed many of the enumerated considerations relevant to the test for imposing an adult sentence, those factors remain important in the context of assessing an offender's moral blameworthiness. [8] In R. v. Okemow, 2017 MBCA 59, [2017] M.J. No. 173 (QL), Mainella J. in his decision on behalf of the court, reviewed the 2012 amendments. His conclusions may be summarized as follows: First, although the wording of the YCJA s. 3(1)(a) changed, making it clear that the YCJA is intended to protect the public in both the short term and the long term, the principle of protection of the public is not more important than the other

5 Page: 5 principles set out in ss. 3 or 38. Judges must continue to balance conflicting principles in order to arrive at a fit sentence. In the words of Mainella J. at para. 47 of his decision, "... the revised wording of the YCJA still has at its core the philosophy that the custodial remedy is a last-resort option (see section 39(2) of the YCJA), reserved for a discrete type of offender and, when used, it must be for the shortest duration possible in the circumstances." Second, the presumption of diminished moral blameworthiness has now been codified in ss. 3(1)(b) and 72(1). He relied on the decision of the court in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, which held that, although rebuttable, a young person is presumed to be less accountable than a similarly situated adult based on their "heightened vulnerability, less maturity and reduced capacity for moral judgment". Third, while specific deterrence and denunciation can now be considered in determining an appropriate sentence for a youth, their application is discretionary and are subject to the principles of proportionality and diminished moral responsibility. These sentencing objectives will be most relevant when dealing with a narrow set of violent or repeat offenders and should not result in a departure from using custody as a last resort, particularly for non-violent and non-repeat offenders. As Mainella J. held (see Okemow at para. 69): This new feature of the YCJA must, however, be understood properly in its limited context and applied cautiously in practice. Parliament has not called for increasing the rate of incarceration of young persons or changing its approach to sentencing for the vast majority of young persons who fall into trouble with the law. Rather, it has built measures into the YCJA to address deficiencies

6 Page: 6 in the process that it perceived existed in relation to a small but important subset of offenders, those committing serious crimes or serial offenders, where the presumption of diminished moral blameworthiness is rebutted in relation to the particular offence(s). [9] Section 64 of the YCJA provides that a young person may be liable to an adult sentence if the young person has been found guilty of an offence for which an adult is liable to a term of more than two years and which offence was committed after the young person attained the age of 14 years. Mr. Green committed the offence of second degree murder when he was 17 years of age and an adult would face a sentence of life imprisonment for this offence. Accordingly, the offence committed by Mr. Green is eligible for an adult sentence. [10] Section 72 sets out the substantive legal principles which govern the adult sentence hearing and provides at subsections (1) and (2): 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. (2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General.... [11] The Crown points out in its argument that pursuant to s. 42 of the YCJA, the longest eligible youth sentence for this offence is seven years. The seven years would,

7 Page: 7 at a maximum, be comprised of four years of custody and three years of community supervision. [12] However, this maximum is impacted by the fact that Mr. Green is currently serving a youth sentence for his role in a second degree murder committed some 40 hours before committing this offence. He received the maximum youth sentence comprised of four years in custody and three years of community supervision, which began on October 19, 2016, the date of sentencing for the first murder offence. [13] Accordingly, if the court were to impose another youth sentence in respect of the second murder, and because his last sentence has not expired, pursuant to s. 43 of the YCJA, both will be deemed to be one youth sentence, starting on October 19, 2016, when the first sentence began and ending on the expiration of the second sentence. [14] Pursuant to the operation of ss. 44 and 46 of the YCJA the total custodial portions of a young person s youth sentences cannot exceed six years, even if the court decided that the maximum sentence available under the YCJA, should be imposed. Accordingly, the only youth sentence available for this second murder would be a lesser sentence than what he received for committing the first murder. Background of the Young Person [15] A review of the exhibits filed with the court discloses a very troublesome and difficult past. Mr. Green is an indigenous person who spent the early years of his life on the Bloodvein First Nation in the care of his grandmother. He remained in the care of his grandmother until 2005, when he was placed in care under a voluntary placement as he would no longer listen to his grandmother and she could no longer care for him.

8 Page: 8 [16] His mother had consumed alcohol throughout her pregnancy. Following the birth of Mr. Green and his younger sister, his mother was unable to care for her children. She passed away under grim circumstances in Mr. Green only learned who his father was at age 13. [17] His connection with a traditional indigenous language and culture is minimal and the last ten years of his life have been marked by displacement and instability. During this time he has lived in foster homes in a number of rural communities and was placed at a treatment centre in Winnipeg. While at the treatment centre, he obtained high school credits from the public high school which he attended. He absconded from his placement in 2013 and until the time of the first murder in 2014, he was either in custody or his whereabouts were unknown. [18] In respect of his use of alcohol and drugs, Mr. Green started using drugs and alcohol at the age of 11 and joined a Winnipeg street gang at age 12. He apparently recruited gang members and sold drugs for the gang. He was exposed to substance abuse and its effects at an early age in his community. Leading up to the offence in February 2014, Mr. Green explained that he had been binging on whiskey and vodka and had experimented with cocaine and prescription pills. [19] While in custody, Mr. Green has taken some programming aimed at addressing his risk areas such as substance abuse, anger management and negative peers, but the reports indicate that he lacks the motivation to complete it. He has been involved in numerous reported incidents of institutional violence involving aggressive, violent, gang

9 Page: 9 mentality and other anti-social behaviour and substance abuse. Testing conducted while in custody has resulted in an assessment that he is a very high risk to re-offend. Analysis Onus of Proof [20] It is the Crown that bears the onus of proof that a young person should receive an adult sentence. As stated in s. 72(1) of the YCJA the court must be satisfied after careful consideration of all relevant factors, including the principles set out in s. 3(1)(b)(ii) and s. 38 of the YCJA and weigh and balance all of those factors before imposing an adult sentence. [21] As with the case of sentences imposed on crimes committed by adults, youth sentencing is fundamentally concerned with the assessment of moral blameworthiness. As Abella J. noted in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3 (QL) (at para. 41): [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. [22] However, as the court also held in D.B., that presumption can be rebutted since there are wide variations in the maturity and sophistication of young persons over the age of 14 who commit serious offences. In order to do so, the Crown must satisfy the court that at the time of the offence the young person had the moral capacity of an adult. As the court stated in D.B. (at para. 94):

10 Page: 10 [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 or the lifting of a publication ban 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. The Circumstances of the Offender [23] While it is clear that Mr. Green's upbringing was chaotic, the information contained in the exhibits does not indicate that Mr. Green had any cognitive or emotional disability which prevented him from appreciating the moral consequences of his actions. The forensic assessment report written by Dr. Fisher revealed that the assessed areas of functioning, including attention regulation, memory and executive functioning, found relatively average abilities. There is no evidence of difficulty from a traditional mental health perspective. [24] With respect to the evaluation conducted by Dr. Fisher, which focused upon sentencing in a youth versus adult context, Dr. Fisher stated in his report that "there is no compelling information from a psychological (sic) that directly speaks to this issue". However, he summarizes the shortcomings of the youth system in respect of the needs exhibited by Mr. Green as follows: From a behavioural management perspective, however, given difficulties he has exhibited in the past in youth correctional facilities, in many ways he appears to have "aged out" of the youth system. He was relatively clear that from his viewpoint he would prefer an adult sentence with a federal penitentiary placement, and in a review of information provided in his Pre-Sentence Report, I would concur that when considered from an actuarial perspective, he presents as a high-risk individual."

11 Page: 11 [25] I am satisfied that the circumstances of the offender identified in the materials filed as exhibits at this hearing call for a placement in an adult setting. The Circumstances of the Offence [26] I agree with the position of the Crown, that the circumstances of the second murder which he committed approximately 40 hours after the first murder, confirm that Mr. Green has the moral capacity of an adult. While there may be an element of impulsiveness in seeking out his victim, it is also clear that his conduct demonstrates adult bravado and decision making in his efforts to search out the victim for the purpose of causing him bodily harm. [27] The circumstances leading up to the commission of the murder of Mr. Goosehead, including his identification with the criminal lifestyle and behaviour of a gang member, demonstrates the exercise of independent judgment and decision making. He had chosen a criminal lifestyle before his arrest and supported that choice and represented that decision in photographs, in his posturing and in his actions. [28] In short, when all of the circumstances of the offence, together with his personal circumstances are assessed, I am satisfied that Mr. Green was not an adolescent of heightened vulnerability who requires the resources offered pursuant to the YCJA, but rather a resourceful and street smart, experienced individual who was almost 18 years of age at the time of the offence and who demonstrated the independent judgment and decision making of an adult. I am satisfied that the Crown has rebutted the presumption of diminished moral blameworthiness or culpability of Mr. Green.

12 Page: 12 The Adequacy of the YCJA to hold Mr. Green Accountable [29] Accountability for the purposes of s. 72 of the YCJA balances the punishment against the moral culpability of the offender and is akin to the principle of retribution in adult sentencing. [30] The court in its decision in R. v. Z.T.S., 2012 MBCA 90, 284 Man.R. (2d) 55 (QL), quoted McCombs J. in R. v. Ferriman, [2006] O.J. No. 3950, 71 W.C.B. (2d) 139 (S.C.J.) with approval, stating at para. 65 that for a sentence to hold a young person accountable it must achieve two objectives: It must be long enough to reflect the seriousness of the offence and the offender's role in it, and it must also be long enough to provide reasonable assurance of the offender's rehabilitation to the point where he can be safely reintegrated into society. If the Crown proves that a youth sentence would not be long enough to achieve these goals, then an adult sentence must be imposed. [31] In determining if a youth sentence is sufficiently long enough to hold the offender accountable for the offence of murder, I have considered the purpose and principles of sentencing set out in s. 3(1)(b)(ii) and s. 38 of the YCJA. A review of the exhibits, which include a thorough examination of his background, criminal offences and a record of his behaviour while in youth custody, and the consideration of the factors identified in the legislation along other relevant factors, including the interest of society, Gladue considerations and the prospects for rehabilitation within the duration of an available youth sentence, satisfy me that a youth sentence is not sufficiently long enough to hold the offender accountable for the offence that he has committed. [32] In this case, Mr. Green's moral blameworthiness is high and his criminal record as a youth is egregious, particularly when one considers his response to court orders and

13 Page: 13 the attempt of youth corrections personnel to assist him in rehabilitation. His response to the extensive assistance and programming which he had access to, is appalling and a significant concern to public safety, especially in view of the fact that he committed two separate murders within two days, only a few months short of his 18th birthday. Conclusion [33] Considering all of the factors here, including: the principles and purposes of sentencing under the YCJA; just sanctions; meaningful consequences; long-term protection of the public; a proportional sentence to the seriousness of the offence; the degree of Mr. Green's responsibility; the degree of Mr. Green's participation in the offence he committed, including the fact that the jury concluded he had the requisite intent or foreseeability to be found guilty of second degree murder; the harm done to the victim and the impact on his family as disclosed in the victim impact statements and submissions which the court read and heard; and the aggravating and mitigating factors outlined by the Crown in its submission to the court, I am satisfied that the Crown has met the onus of establishing that Mr. Green should be sentenced as an adult.

14 Page: 14 [34] Accordingly, as I stated on September 12, 2017, following the submission of counsel, Mr. Green is sentenced to life imprisonment with the seven-year period of ineligibility for parole as mandated by law. [35] In respect of ancillary orders, there will be an order for DNA and a lifetime weapons prohibition. [36] As required by the YCJA, a placement hearing will be set by the court and counsel is to contact the court to provide a suitable date. A placement report has been ordered. J.