IN THE COURT OF APPEAL OF MANITOBA

Transcription

1 Citation: R v Anderson, 2018 MBCA 42 Date: Docket: AY IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella B ETWEEN : ) S. B. Simmonds and HER MAJESTY THE QUEEN ) K. J. Advent ) for the Appellant Respondent ) ) A. Y. Kotler - and - ) for the Respondent ) BO JUNIOR ANDERSON ) Appeal heard: ) January 31, 2018 (Young Person) Appellant ) ) Judgment delivered: ) April 19, 2018 NOTICE: Pursuant to section 110(2)(a) of the Youth Criminal Justice Act, the prohibition on publication set out in section 110(1) does not apply when the young person received an adult sentence. On appeal from R v BJA, 2016 MBQB 207 MAINELLA JA Introduction [1] This appeal is about the fitness of an adult sentence for a horrific murder where one teenager killed another. After having sexual intercourse with the cognitively challenged victim, the young person followed her, attacked her from behind and then viciously bludgeoned her to death. His motive for doing so was the fear that she might tell others about having sex

2 Page: 2 with him and he didn t want to be considered the laughing stock of his small community for, as he put it, banging a half-retarded girl. [2] The murder went unsolved for almost three years and cast a dark shadow over the normally peaceful community. During that time, the young person hid in plain sight and carried on with his life. He was ultimately arrested and confessed to the murder only after an intensive and lengthy interrogation. [3] The young person pleaded guilty to second degree murder. The Crown successfully moved to have him sentenced as an adult pursuant to section 72(1) of the Youth Criminal Justice Act, SC 2002, c 1 (the YCJA). Central to the decision of the youth justice court judge (the judge) is the significant weight he gave to the post-offence conduct of the young person successfully concealing his involvement in the murder for a lengthy period. [4] In his appeal, the young person challenges the reasonableness of the judge s finding that the Crown had rebutted the presumption of diminished moral blameworthiness or culpability (see section 72(1)(a) of the YCJA); the judge s conclusion that a youth sentence would not be long enough to hold him accountable for the crime because of his high moral blameworthiness despite his excellent prospects for rehabilitation and safe reintegration into society (see section 72(1)(b) of the YCJA); and, finally, the judge s application of the principles in R v Gladue, [1999] 1 SCR 688, in reaching his decision to impose an adult sentence. The legislation relevant for this appeal is attached as appendices to my reasons. [5] For the following reasons, I would grant the young person leave to appeal his sentence but would dismiss his appeal.

3 Page: 3 Background Circumstances of the Offence [6] Wabowden is a community of less than 500 people located in northern Manitoba on the railway line between Winnipeg and Churchill. Its population is diverse but with strong influences of the Métis and the nearby Cross Lake First Nation. The murder occurred in Wabowden on June 8, At that time, the young person was 16 years and six months old, living at home, studying in high school and working part-time. The victim was 14 years old. She was described as an innocent, naïve and trusting person. She functioned at the mental equivalent of a seven or eight year old. [7] The young person had known the victim for three years. The two had engaged in sexual intercourse on previous occasions. There were rumours in the community of the sexual relationship. [8] On the day in question, the young person ran into the victim on his way home. When he came upon her, she was looking for some money she had lost. He propositioned her to have sex if he paid her five dollars; she agreed. The couple walked into the bush. During sex, the young person s penis began to bleed. This was the event that led to the murder. [9] The young person had deflected rumours and teasing from friends and family about a sexual relationship with the victim by lying about it. He was confident nobody would believe the victim because she was different ; she was handicapped and unpopular. Once he saw his penis bleeding, he realized, if she said anything, she would be believed because her story would be similar to others. He had recently had sex with another girl and his penis had also bled during intercourse. In order to protect his reputation from the

4 Page: 4 embarrassment of others learning about his sexual relationship with the victim, he decided, in the heat of the moment, that he would make sure she can t say anything by killing her. [10] The young person used one of his socks to wipe the blood off his penis. While he was doing this, the victim walked unsuspectingly away. He followed her. When he saw a large rock, he picked it up with the intention of using it to kill her. He held the rock only with his fingertips because, as he later told police, he was thinking that [he] didn t want [his] full handprint on [the rock]. He took 20 steps to close the distance with the victim and then threw the rock at her head, striking her. [11] The victim collapsed to the ground, flat on her back. He approached her, looked into her eyes and saw she was still alive. He, in his words, finished the job by picking up the rock with both hands, raising it over his head and striking her skull at least three times, stopping only when he could see brain tissue. [12] He then took the murder weapon and hid it in a nearby derelict car. He covered up the victim s body with vegetation. As he was leaving the scene, he inadvertently dropped the sock covered with his blood. He went home, changed, washed his penis and threw out his bloody underwear. He then went to bed as if nothing had happened. [13] When the victim did not come home that night, the community mobilized to look for her. One of the searchers was her older sister; she located the victim s body the next day. The victim s murder had a devastating effect on the community. The unusual and unsolved nature of the brutal crime aroused general concerns for public safety. The deep sense of loss over the

5 Page: 5 victim s death caused the community to create a memorial park in her name, as well as celebrating her life in ceremonies for missing and murdered women and girls. The victim impact statements evidence how her murder irreparably shattered the lives of many family members through anxiety, depression, substance abuse and an acute risk of suicide. The fact the crime was not quickly solved compounded their trauma. [14] In the course of making inquiries, on June 13, 2011, police took a video-recorded statement from the young person to ask him a few questions as to the last time he had seen the victim. He lied throughout that statement. His recollection of her whereabouts on the day of the murder changed during the interview. Also, when asked if he had a sexual relationship with the victim, he denied having one, saying he barely knew her. The officer took a break and left him alone. Knowing he was being recorded, the young person launched into a soliloquy saying, who the hell would even try to do that to her and I don t even know her. [15] When the officer returned to the room, he asked the young person about the possibility of his DNA being on or inside her body. The young person then admitted to having sex with her occasionally, the last time being the day before she was murdered. After denying responsibility, he pointed the police towards others. He began with the vague suggestion that maybe one of the town drunks that the victim hung out with may have done it. He then alluded to the possibility of his best friend being a potential suspect. He advised that his best friend was angry with the victim for spreading gossip and he had violent tendencies. At this point in the interview, the officer took another break and left the young person alone. The young person launched

6 Page: 6 into a second soliloquy about the idea of his best friend killing the victim and how he would feel like a dick if his best friend had done it. [16] The police continued to investigate the murder for almost three years. The young person finished high school and continued to live and work in the community until 2013 when his father moved the family to Thompson, Manitoba for business reasons. Once he arrived there, the young person found a full-time job. The murder caused him daily anguish. He used alcohol and drugs regularly as, what he called, a coping mechanism. He also contemplated suicide. Nevertheless, he was able to guard his secret and function in society in an ordinary way. [17] As a result of the young person providing police with a voluntary DNA sample, which matched the DNA located on the sock found at the crime scene, he was arrested for murder on April 15, He was 19 years old at the time. Police interrogated him for over seven and one-half hours. [18] For approximately six and one-half hours of the interrogation, the young person continued to deny the murder and deflected blame for it on a neighbour of the victim who had committed suicide after the victim s murder. Some people in the community had suspected this individual of being the murderer. [19] When the officer confronted the young person with the forensic evidence related to the sock, the young person questioned its significance. He said he hunted in the area and that could explain the bloody sock. He also asked the police if they knew how long his DNA had been on the sock. As the police continued to challenge him and appeal to his conscience, he told them they were looking for a confession and [y]ou re not gonna get anything

7 Page: 7 outta me. Police were only able to obtain a confession from him after resorting to the stratagem of using a personal and emotional appeal for the truth from the victim s grandmother, a respected member of the community. Circumstances of the Young Person [20] The young person has Indigenous heritage as his late mother was a Swampy Cree from the Chemawawin First Nation (which consists of three reserves about 300 kilometers southwest of Wabowden). Through her, he has treaty status as a member of that First Nation. [21] His parents separated when he was very young. Until he was six years old, he was raised primarily by his paternal grandparents in a stable but non-indigenous setting in Selkirk, Manitoba. His father then moved the young person and his five siblings to Wabowden. The young person s father merged the family with a new partner who had two children of her own. Later, he and his new partner had a daughter together. [22] The young person s mother died when he was 14 years old. She had a significant substance-abuse problem. She grew up in a home plagued by poverty, neglect, domestic violence, sexual abuse and addictions issues. Her family suffered from the dislocation caused to her community from its traditional way of life by hydro development in northern Manitoba. As a parent, she was never able to provide stability to her own children. She had little contact with the young person except for six months when he was eight years old when he lived with her in Easterville, Manitoba. This brief period was the only time prior to being arrested for the murder when the young person had much in the way of exposure to his Indigenous culture and the maternal side of his family.

8 Page: 8 [23] Family life in Wabowden was not without its challenges. When the young person was about 10 years old, three of his siblings were apprehended by child welfare officials as the children were totally unmanageable. This separation affected his long-term relationships with these siblings who moved from foster care into the criminal sub-culture. Growing up, the young person was exposed to his father and his father s partner openly consuming drugs and alcohol. Corporal discipline was practiced on the children. The young person fought from time to time with his siblings. At age 11, the young person was sexually assaulted by an adult neighbour who made a pass at him and kissed him romantically on the lips. This was a one-time incident. The young person was able to avoid contact with the neighbour. [24] The young person, however, does view many aspects of his family life growing up positively. He is respectful of his father and his direction. He told police that he had been raised with some sense in my head to go to school and not misbehave like his brothers did. His long-term plan when he is released from custody is to upgrade his training in carpentry and business administration and work in his father s home renovation business in Thompson, Manitoba. [25] Prior to the murder, the young person s involvement in the criminal justice system was limited to a youth sentence from 2011 for petty property offences and failing to attend court which resulted in a period of supervised probation which he was serving at the time of the murder. Pre-Sentence Custody and Forensic Assessments of the Young Person [26] Court proceedings took about two and one-half years during which the young person was in custody. While there, his behaviour was generally

9 Page: 9 positive. He took carpentry training and he completed a number of programs designed to foster positive lifestyle choices. He also re-established a connection with his maternal grandmother and began to demonstrate an interest in his Indigenous heritage and traditions. Many of his family members continue to support him. [27] The judge was provided with a pre-sentence/gladue report prepared by a probation officer and forensic assessments prepared by Dr. Fisher and Dr. Somers. Both psychologists also testified at the sentencing hearing. [28] The unique background and systemic factors of the young person (i.e., the Gladue factors) highlighted by the probation officer in her report were the negative impacts of hydro development on the maternal grandmother s family; the maternal grandmother s attendance at a residential school; the young person s exposure to substance abuse and family dysfunction; abandonment by the young person s mother; suicide attempts; and loss of culture. [29] The probation officer advised that the young person felt a sense of relief when he was arrested. In her view, he verbalized minimal victim empathy, and expressed concern as to how the murder will affect his life. She assessed him as a medium risk to re-offend based on risk factors she set out in her report. In her view, he was not yet a suitable candidate for immediate community supervision. [30] Both Dr. Fisher and Dr. Somers were more optimistic as to the young person s rehabilitative and reintegration prospects than the probation officer.

10 Page: 10 [31] According to Dr. Fisher, the young person has no cognitive issues and required no special needs in his education. He observed no confusion in the young person s thought process or signs of mental illness. He described the young person as an articulate young adult for whom there were no obvious comprehension limitations. However, the young person did exhibit signs of post-traumatic stress associated with murdering the victim. [32] In Dr. Fisher s opinion, at the time of the murder, the young person was functioning relatively well in the community despite some emotional and social issues and the disruptive Gladue factors in his background. Dr. Fisher believed that the murder seemed out of character and likely occurred as a result of limited coping and problem-solving skills to deal with the perceived embarrassment he would be exposed to by his peer group for having sexual relations with the victim. In Dr. Fisher s view, the young person s level of maturity at the time of the murder would likely have been typical for adolescents of his age. In terms of rehabilitation, Dr. Fisher was of the view that, from a psychological or clinical perspective, the needs of the young person could be dealt with by way of a youth sentence as opposed to an adult sentence. [33] In his testimony, Dr. Fisher conceded that his assessment of the young person was based on impressions over four and one-half years after the murder. He did not review either of the video-recorded statements of the young person to police. He also explained that his opinion favouring a youth sentence did not take into account any concerns beyond the psychological. In his view, there were resources for the young person for his rehabilitation and reintegration if an adult sentence were imposed and, unlike a youth sentence, an adult sentence provided longer monitoring.

11 Page: 11 [34] Dr. Somers s opinion was generally similar to that of Dr. Fisher. He had no concern as to the young person having any condition that would affect his cognitive abilities or moral-reasoning capacity at the time of the murder. Dr. Somers administered various standardized tests to evaluate the young person s intellectual abilities and personality. The young person fell within the average range of intellectual ability for young adults. The results of his personality test did not give rise to a concern for various forms of anti-social behaviour. Dr. Somers observed no signs of a psychopathic personality. He described the young person as chronically mildly impulsive. Dr. Somers noted that drug or alcohol use after the murder was the primary cause for difficulties in the young person s personal and work life until his arrest. [35] In Dr. Somers s view, the young person does not present an elevated risk of offending in the future; the murder was out of character. According to Dr. Somers, despite experiencing some trauma from the murder, the young person has the intellect, capacity for moral reasoning and attitude to live a prosocial life. Dr. Somers agreed with the probation officer that the young person s substance abuse and negative peer associations, which he developed after the murder, are the greatest future risk factors. However, Dr. Somers disagreed with the probation officer s overall assessment of a risk for future violent behavior. In his view, the risk was one of low to moderate. [36] Like Dr. Fisher, Dr. Somers believed that the young person had the maturity of a conventional 16 year old at the time of the murder. Dr. Somers agreed with Dr. Fisher that a youth sentence would be adequate to address the young person s needs from a psychological or clinical perspective to ensure his rehabilitation and reintegration. In coming to that conclusion, he disagreed

12 Page: 12 with Dr. Fisher as to the adequacy of mental-health resourcing in the adult system to assist an offender s rehabilitation. [37] Unlike Dr. Fisher, Dr. Somers had the opportunity to view the two video-recorded statements of the young person to police. He agreed that, in the first interview, shortly after the murder, the young person displayed no signs of remorse. According to Dr. Somers, the young person immediately understood he had done something quite wrong by his efforts to hide the murder weapon and the body, and to deny responsibility to police. Dr. Somers testified that the act of murdering someone of lower status to protect the murderer s image is egocentric behaviour. However, in his view, the risk of the young person engaging in such behaviour going forward was not likely such that he required monitoring on parole as an adult sentence for murder necessitates. The Judge s Decision [38] The test for the imposition of an adult sentence on an offence committed by a young person is set out in section 72(1) of the YCJA. Because of the offence date and when proceedings were commenced against the young person, the judge did not have the discretion to consider the sentencing objectives of denunciation of unlawful conduct or specific deterrence (see section 195(c) of the Safe Streets and Communities Act, SC 2012, c 1). [39] The parties agree that the judge approached the Crown s application in the correct manner. Section 72(1) of the YCJA creates a two-pronged test involving separate inquiries but where there is some overlap in the relevant factors to consider (R v Okemow, 2017 MBCA 59 at para 52). Before an adult sentence can be imposed, the Crown must satisfy the Court that the

13 Page: 13 presumption of diminished moral blameworthiness or culpability of the young person has been rebutted and that, taking into consideration the enumerated purposes and principles of the YCJA, a youth sentence would not be of sufficient length to hold the young person accountable. Failure to prove both prongs of the test mandates the imposition of a youth sentence notwithstanding the seriousness of the offence or the degree of moral blameworthiness of the young person (see sections 72(1.1), 73(2) of the YCJA; and Okemow at paras 53-54). [40] Both counsel for the young person made submissions to the judge. Each touched on the application of Gladue principles (i.e., the analysis required by section 718.2(e) of the Criminal Code and section 38(2)(d) of the YCJA). Mr. Simmonds s only Gladue-related comment to the judge was that there aren t specific Gladue factors as such in the case. In contrast, Mr. Advent argued that the probation officer s report did mention Gladue factors. He said that the judge was obligated to apply Gladue principles in light of those factors but, as he put it, the seriousness of the crime certainly has impact as to how much those factors will take play in [the] sentence. Mr. Wilford, on behalf of the Crown, made no mention in his submissions of the Gladue factors in the case or the application of Gladue principles. [41] In finding that the Crown had rebutted the presumption of diminished moral blameworthiness or culpability, the judge stated (at paras 32-33): Considering all of these circumstances as a whole, I am satisfied that the presumption of diminished moral blameworthiness has been rebutted. While I accept that he appeared to be a boy of normal maturity for his age, I am particularly swayed by the facts that when he killed her he:

14 Page: 14 was sober, free of any emotional or psychological issues and highly aware of what he was doing; thought through his choice - being embarrassed or silencing her by death; had the resolve to complete this gruesome killing after the first strike; and had the steadiness to quickly cover it up. Further, he displayed a great deal of nerve and composure in the following days, dealing with the RCMP and behaving innocently in the tight knit community in a way that did not attract any undue attention to him. B.J.A. s personal circumstances up to that time, why and how he killed HM, and how he behaved in the days and months after, belie any notions that he had the traits of diminished moral blameworthiness. To the contrary, he showed no vulnerability. He demonstrated moral and intellectual capacity and foresight to understand the consequences of what he was doing when he did it, and after. While the crime had a degree of impulsiveness to it, in that it was on the spur of the moment, and was conceived by juvenile thinking, nonetheless, overall, his actions demonstrated a maturity and reflection inconsistent with diminished culpability. [42] In his assessment of the presumption of diminished moral blameworthiness or culpability, the judge made the following Gladue comments (at para 24): In sum, he was born in Thompson and has four siblings and several stepsiblings. His upbringing was fairly unremarkable except that his parents separated and his mother died when he was 13. He was primarily raised by his father in Wabowden except for a short period, around age eight, when he lived with his mother. Up until the time of the offence, he was a fairly average mid-teenage boy who did well enough in school, was interested in sports, had a parttime job and had friends and a connection to the community in which he lived. He did not have any emotional, cognitive, learning or psychological issues. Nor were alcohol or drugs an

15 Page: 15 issue for him. He had a minor youth record that has no impact. Gladue factors are notionally relevant here. However, considering his upbringing, the absence of any impact of his aboriginal heritage to him or this crime, and the grave nature of the murder, it would defy common sense here to assess him or his blameworthiness through the Gladue lens. [emphasis added] [43] Subject to the review procedures in the YCJA, the maximum youth sentence for second degree murder is seven years, allocated as up to four years in custody from the date of sentencing with the balance under conditional supervision in the community (see section 42(2)(q) of the YCJA). In imposing a youth sentence for murder, there is a discretion for credit to be given for presentence custody and, if credit is given, the amount of credit (see R v P (NW), 2008 MBCA 101 at para 23). [44] In contrast, an adult sentence for second degree murder for a 16 year old is automatically life imprisonment with no chance of parole for seven years (see section 745.1(c) of the Criminal Code). In the calculation of parole eligibility, credit for pre-sentence custody is automatic, running from the date of arrest (see section 746(a) of the Criminal Code). [45] On the question of accountability, the judge found that a youth sentence would be long enough to provide a reasonable assurance of achieving the objectives of rehabilitation and the safe reintegration of the young person into society. However, the judge was not satisfied that a youth sentence would be long enough to hold him accountable because of his assessment of proportionality. He stated (at paras 46-47): I have found that the presumption of diminished blameworthiness has been rebutted. This is significant, but in itself cannot be the only or final factor respecting retribution. More is required to

16 Page: 16 raise the moral culpability beyond the point that a youth sentence cannot be a just or meaningful sanction. The YCJA is geared for all sorts of young killers to receive youth sentences. Having noted this, equally clear is that the circumstances of the offence and the offender are critical qualitative circumstances in measuring the degree of moral blameworthiness, for that is the key to a proportionality assessment. Thus, that this murder was one of specific intent and was aimed at a vulnerable younger person are important, as is the cruelty and hands-on nature of it and his senseless explanation for the crime. Especially critical though, is that B.J.A. by his own actions tried to, and almost did, get away with murder. Almost three years had passed. He had no intent to confess or accept responsibility. He did not do so until many hours into a grueling interrogation, and then only when begged to confess by HM s grandmother s plea. His determination to get away with the murder highlights the need for a more meaningful consequence than any youth sentence can signify. Standard of Review [46] The standard of review on an appeal of a decision under section 72(1) of the YCJA to impose a youth or an adult sentence is governed by the same principles that apply to other sentence appeals (see Okemow at para 41). Parliament has given judges wide latitude to weigh the relevant principles to the individual circumstances in order to craft what they consider is a fit and appropriate sentence (R v Lacasse, 2015 SCC 64 at para 11). The threshold for appellate interference is therefore very high (Lacasse at para 52) and is reserved only for cases where an error in principle or in law has occurred that impacted the sentence in more than just an incidental way (see Lacasse at para 44) or where the sentence imposed is demonstrably unfit (see Lacasse at paras 52-55; see generally R v Houle, 2016 MBCA 121 at para 11).

17 Page: 17 Discussion The Presumption of Diminished Moral Blameworthiness or Culpability Section 72(1)(a) of the YCJA Issues [47] The young person argues that the judge erred in principle in concluding that the Crown had rebutted the presumption of diminished moral blameworthiness or culpability because he says the evidence is overwhelming that he exercised adolescent maturity and moral reasoning in murdering the victim. He also submits that the judge erred by his comment that it would defy common sense here to assess [the young person] or his blameworthiness through the Gladue lens (at para 24). The young person says this was an abdication of the legal duty to apply Gladue principles because of the severity of the crime (see R v Ipeelee, 2012 SCC 13 at paras 84-87). The Law [48] In Okemow, this Court explained the analysis on the question of whether the presumption of diminished moral blameworthiness or culpability has been rebutted in the following manner (at paras 62-63): On the question of the first requirement of section 72(1) of the YCJA, rebutting the presumption of diminished moral blameworthiness, the Crown must demonstrate to the court s satisfaction that the young person had the moral capacity of an adult at the time of the offence(s). Relevant are the circumstances of the offence(s) and the young person (BL [2013 MBQB 89] at para 38) as to whether adult-like judgment was exercised (see DB [2008 SCC 25] at para 77; MW [2017 ONCA 22] at paras 96-98; and R v JFR, 2016 ABCA 340 at para 25).

18 Page: 18 The comments of Abella J in DB; and AC v Manitoba (Director of Child and Family Services), 2009 SCC 30, are helpful in determining whether a young person engaged in adult moral judgment when committing an offence. The starting point is of course the presumption that he or she did not. The law presumes that, because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment (DB at para 41). That said, the presumption in section 72(1)(a) of the YCJA is a rebuttable one. Whether a young person has exercised adult moral judgment in a particular instance in his or her life is a case-specific and contextual exercise (see AC [2009 SCC 30] at para 4). Assessment of the decisionmaking of young persons is a situation where the youth justice court judge must engage in careful fact finding relating to the offence and the offender. Analysis [49] The circumstances of the murder and its immediate cover-up reasonably dispel the presumption that this was the action of an individual with heightened vulnerability, less maturity and a reduced capacity for moral judgment (R v DB, 2008 SCC 25 at para 41). Several features of the commission of the offence are relevant. To begin, the decision to murder was based on the exercise of judgment and a foresight of the long-term consequences of what would occur to the young person s reputation if the victim told others about his penis bleeding during intercourse. Significant and brutal violence was then intentionally inflicted on a defenseless and vulnerable individual to eliminate the risk to the young person s reputation. Highly relevant is the fact that the intellectual disability of the victim was a factor the young person weighed in his decision to murder because he realized she would likely be believed if she spoke about having sex with him, despite her disability. The actions were also the product of a sober individual who lacked any form of cognitive limitation. Finally, during the commission of

19 Page: 19 the murder, the young person had the presence of mind to consider whether he might leave handprints on the murder weapon if he held it in a certain way. [50] In the consideration of whether adult-like judgement was exercised, it is also relevant to consider the young person s post-offence conduct to cover up his involvement immediately after the murder up to and including his first interview by police five days later. It has long been a sentencing principle that an offender s attitude after the commission of the crime sheds light on his or her degree of criminality and character (see Regina v Iwaniw (1959), 127 CCC 40 at 51 (Man CA)). [51] Callous behaviour to a victim post-offence or attempting to cover up the commission of an offence may support a finding of a heightened degree of moral blameworthiness (see Rex v Warner, Urquhart, Martin & Mullen (1946), 87 CCC 13 at 18 (Ont CA); R v Carrière (2002), 164 CCC (3d) 569 at para 13 (Ont CA); R v McLeod, 2016 MBCA 7 at para 24; and R v JCS, 2017 BCCA 87 at para 75). Here, the lack of panic and display of selfassuredness by the young person after the initial blow and his successful efforts to cover up the murder and hide from detection in the small community was evidence which was open to the judge to accept as demonstrating heightened moral blameworthiness or culpability. In my view, the record here surrounding the circumstances of the offence reasonably supports a finding that the young person displayed critical thinking in carrying out the murder with the intention of successfully completing it and attempting to avoid detection for it (R v BL, 2013 MBQB 89 at para 4). [52] In terms of the circumstances of the young person, his argument that the judge should have placed more weight on his dependent lifestyle at the time of the offence, the opinions of Drs. Fisher and Somers that he was

20 Page: 20 functioning as a normal adolescent and the other evidence suggesting that his moral reasoning at the time was adolescent, is unpersuasive. In his reasons, the judge took into consideration the young person s age, maturity, character, lifestyle, motive, record and other background. He was entitled to assign weight to the various pieces of evidence and evaluate the opinion evidence of the experts in light of the young person s actions during and immediately after the murder. The role of this Court is not to re-weigh the circumstances of the offence or the young person as to whether the presumption of diminished moral blameworthiness or culpability has been rebutted (see DB at para 101). [53] In my view, the more difficult question in terms of the judge s determination on the rebuttal of presumption of diminished moral blameworthiness or culpability is the young person s argument that the judge abdicated his legal duty to consider Gladue principles in light of the Gladue factors because the crime was very serious. [54] The Crown concedes there is some merit to this argument. It says that the judge s comment that it would defy common sense here to assess [the young person] or his blameworthiness through the Gladue lens (at para 24) was inelegant and unfortunate. [55] Gladue principles are rooted in the sentencing principle of restraint which takes two forms: the first being the favouring of non-custodial sentences instead of custodial sentences wherever possible, and the other being the imposition of shorter custodial sentences instead of longer ones (see Andrew Ashworth, Sentencing and Criminal Justice, 5th ed (New York: Cambridge University Press, 2010) at 288). In section 718.2(e) of the Criminal Code and section 38(2)(d) of the YCJA, Parliament has codified the principle of restraint into our sentencing laws for all offenders, but has also

21 Page: 21 gone further by giving a specific direction that Indigenous offenders be sentenced through a different method of analysis (Gladue at para 33). [56] The rationale for this different approach is well known. The unfortunate reality of Canadian society is that a host of intergenerational disadvantages have negatively impacted many Indigenous people and brought them into conflict with the law because of choices they have made over their actions. In Gladue, and the subsequent cases of R v Wells, 2000 SCC 10; and Ipeelee, the Supreme Court of Canada explained that Parliament s specific direction regarding the principle of restraint and Indigenous offenders was an attempt, however imperfect, to recognize the unique Indigenous experience and reality within the traditional Anglo-Canadian approach to sentencing because, for the reasons discussed in Gladue (see paras 58, 61, 64, 70), that traditional approach has failed Indigenous people. [57] Accordingly, absent a waiver, sentencing judges have the legal duty in every case involving an Indigenous offender to alter their method of analysis in the assessment of moral culpability in order to achieve a truly fit and proper sentence in terms of the circumstances of the offence, the offender, the victim and the wider community (see Gladue at paras 75, 82; Wells at para 41; and Ipeelee at paras 59, 68, 85-87). There is no discretion to ignore this legal duty even in cases where the offence is serious (see Gladue at para 82; and Ipeelee at para 87). The failure of a sentencing judge to fully engage in their legal duty is an error in principle justifying appellate intervention (see Gladue at para 85; and Ipeelee at para 87). [58] The Crown argues that [n]either Criminal Code s (e) nor YCJA s. 38(2)(d) strictly apply to the imposition of adult sentences, which has its own test contained in [YCJA] s. 72(1). That said, it submits that, where

22 Page: 22 Gladue factors inform the analysis of either the presumption of diminished moral blameworthiness or culpability, or accountability, such factors are relevant and must be considered. There is some support for the Crown s position at least with respect to section 72(1)(a) of the YCJA (see R v KM, 2017 NWTSC 26 at para 28). [59] In my respectful view, this is an incorrect interpretation of the YCJA. The subtle, but important, flaw with the Crown s argument is it would introduce some discretion for sentencing judges, using the threshold of relevance, to not embark on the different analysis required for Indigenous offenders despite the mandatory duty placed on judges by legislation to do so. [60] Section 72(1)(a) of the YCJA must be read in light of section 50(1) of the YCJA. That provision states that eight aspects of the Criminal Code relating to adult sentencing, including section 718.2(e), also apply to proceedings under the YCJA with any modifications that the circumstances require. The leading decision on the meaning of section 50(1) of the YCJA is R v BWP; R v BVN, 2006 SCC 27. In that case, Charron J explained that Parliament made a deliberate (at para 23) choice as to which aspects of adult sentencing would apply to the YCJA. [61] As explained in Okemow, the underlying purpose of the YCJA is to restrict the use of custody in sentencing a young person (at para 42). Custody, and particularly an adult sentence, is reserved for a very narrow set of offences and offenders. [62] One of the key aspects of deciding whether the presumption of diminished moral blameworthiness or culpability has been rebutted is the circumstances of the offender (see DB at para 77). Given the importance of

23 Page: 23 the principle of restraint under the YCJA and related principles, such as the prospects for rehabilitation and safe reintegration into society, in my view, Parliament s intention for deliberately choosing to incorporate section 718.2(e) of the Criminal Code into the YCJA was so that it would be mandatory that Gladue factors that may have played a part in bringing the Indigenous young person before the courts, as well as sentencing procedures and sanctions that may be appropriate because of the offender s Indigenous background, would have to be considered in any sentencing proceeding under the YCJA, including both requirements for an adult sentence under section 72(1) of the YCJA. Such an approach is consistent with Parliament s general desire to ameliorate the problems of overrepresentation of, and discrimination against, Indigenous people in the criminal justice system (see Sherri Davis-Barron, Youth and the Criminal Law in Canada, 2nd ed (LexisNexis, 2015) at ). [63] It is noteworthy to point out that there are two traps that can ensnare a sentencing judge in his or her application of Gladue principles. One is to automatically reduce a sentence or warranted period of incarceration simply because an offender is Indigenous without some principled reason (see Ipeelee at para 71). The other is to avoid the legal duty imposed by statute to apply Gladue principles robustly by taking too narrow an approach as to what Gladue factors have to be considered and weighed to arrive at a proportionate sentence or by foregoing a proper analysis altogether due to the severity of the crime (see Ipeelee at paras 83-85). [64] To decide whether the judge abdicated his legal duty, as the young person alleges, his reasons have to be read in light of the record and the submissions of counsel on the standard of adequacy as to whether he fully

24 Page: 24 engaged the application of Gladue principles to the question of the rebuttal of the presumption of diminished moral blameworthiness or culpability (see Gladue at para 85; R v REM, 2008 SCC 51 at para 16; and R v Whiteway (BDT) et al, 2015 MBCA 24 at para 75). [65] In fairness to the judge, the Gladue submissions of counsel at the sentencing hearing were non-existent from the Crown and consisted of a mixed message from the young person. Despite this reality, a full record as to the applicable Gladue factors was before the judge in a lengthy and thorough report from the probation officer, as well as additional relevant information from the reports and testimony of Dr. Fisher and Dr. Somers. [66] While the judge s choice of words was regrettable, he did not specifically say he was not applying the Gladue framework. His comment about not applying the lens (at para 24) of Gladue has to be read together with his other comments that, given the background of the young person, Gladue factors are notionally relevant here in [assessing] him or his blameworthiness (at para 24). That language is reasonably open to the conclusion that the judge was of the view that, given the circumstances, little weight should be placed on the Gladue factors in terms of whether the presumption of diminished moral blameworthiness or culpability had been rebutted. Read in this light, his comment about not applying the lens (at para 24) of Gladue could be attributed to be nothing more than awkward language as opposed to the error in principle of failing to apply his legal duty. [67] Although judges are presumed to know the law, where a judge s reasons are reasonably open to doubt as to whether he or she properly engaged in the application of Gladue principles based on the relevant Gladue factors, it is incumbent on an appeal court to satisfy itself, based on its own analysis,

25 Page: 25 as to whether appellate intervention is necessary (see Gladue at para 85; and Lacasse at para 44). To do otherwise would not be in keeping with the Supreme Court of Canada s direction in Gladue, Wells and Ipeelee, to ensure that proportional sentences are imposed on Indigenous offenders in accordance with the remedial aim of the legislation and the methodology outlined by Gladue. [68] In my view, the Gladue factors in this case do not play a significant role (Gladue at para 69) in terms of the analysis required under section 72(1)(a) of the YCJA for the following reasons. [69] The context here, as Dr. Somers explained in his report, is that the young person s development was of someone without emotional, psychological or cognitive problems or of having suffered significant trauma as a child. A similar view was taken by Dr. Fisher. [70] The probation officer s report explains there have been negative consequences for the young person because of intergenerational disadvantages on the maternal side of his family. I take judicial notice of two facts. Many Indigenous people in Manitoba have suffered dislocation and loss of traditional ways of life, such as living off the land, because of damming and flooding related to hydro development. Also, while the maternal grandmother denied to the probation officer suffering any abuse at the residential school she attended, that system has negatively contributed to the loss of culture for Indigenous people. It is one of the legacies of colonial thinking. Today, the negative effects of residential schools are seen on a daily basis in the civil, family and criminal courts of Manitoba; it is intellectually dishonest, or worse, to not recognize this reality in the proper administration of justice.

26 Page: 26 [71] The indirect consequence of these historical disadvantages on the maternal side of the young person s family has contributed to him losing his Indigenous identity and culture, and it also impacted his mother s ability to parent him due to her severe substance-abuse problem. [72] There have also been other negative events in the young person s life, such as the loss of connection with some of his siblings, the one-time minor sexual assault, and being exposed to drug and alcohol use by his father and his father s partner. [73] Despite these challenges, and a far-from-perfect home life at the time of the murder, the young person was a fairly typical healthy 16 year old. As such, he made the intentional decision to kill a vulnerable person in a brutal fashion and cover it up successfully for a lengthy period of time despite living in a small community. [74] While a direct causal link between the young person s unique and systemic background factors and the commission of the offence is not required, I am not satisfied that the Gladue factors here diminish the young person s moral blameworthiness or culpability in a meaningful way. The Gladue factors here do not [tie] in some way the young person to committing murder; they do not appear to have played a part in bringing him before the courts as it was agreed by the experts that this murder was out of character; and, finally, they do not bear on his culpability for the murder or indicate which sentencing objectives can and should be actualized (Ipeelee at para 83; see also Gladue at para 69). On my view of the record, taking into consideration the circumstances of the offence and the young person, I am satisfied that he had the moral capacity of an adult at the time of the offence,

27 Page: 27 thereby rebutting the presumption of diminished moral blameworthiness or culpability. [75] Accordingly, I see no basis to disturb the judge s finding that the Crown had rebutted the presumption of diminished moral blameworthiness or culpability (see section 72(1)(a) of the YCJA). Adequacy of a Youth Sentence to Hold the Young Person Accountable Section 72(1)(b) of the YCJA Issues [76] The errors that the young person alleges on the question of accountability relate to the judge s conclusion on his heightened degree of moral blameworthiness for the offence. He contends these errors skewed the judge s proportionality assessment and, thus, led to a wrong conclusion that a youth sentence would not be of sufficient length to hold him accountable for the murder. First, he says that the judge placed too much weight on his efforts to conceal the crime. Next, he argues that the judge placed too much weight on the seriousness of the murder given his diminished moral blameworthiness. Finally, he submits that the judge abdicated his legal duty to apply Gladue principles because of the severity of the crime (see Ipeelee at paras 84-87). The Law [77] The second prong of an application for an adult sentence focusses on the question of whether the Crown can demonstrate that a youth sentence would not be of sufficient length to hold the young person accountable for the offence. According to the wording of section 38(1) of the YCJA, accountability requires just sanctions that have meaningful consequences for

28 Page: 28 the young person and that promote his or her rehabilitation and reintegration into society. [78] Historically, this Court has followed the Ontario Court of Appeal s reasoning in R v O (A); R v M (J), 2007 ONCA 144, that, in order to reach a proper conclusion regarding accountability under the YCJA, the sentencing judge must consider what, in adult sentencing, would be described as the sentencing objective of retribution (see R v ZTS, 2012 MBCA 90 at para 65; R v H (CT), 2015 MBCA 4 at para 23; Okemow at paras 66-67; and R v McClements, 2017 MBCA 104 at paras 44-48). [79] Retribution, as it has been classically understood, is the theory of punishment where offenders receive a sentence proportionate to their culpability for what they have done, a so-called just-desert. This approach justifies punishment because it is necessary in a civil society for the state to equalize an injustice by a penalty appropriate to the wrong; in layman s terms, the punishment must fit the crime. As Lamer CJ explained in R v M (CA), [1996] 1 SCR 500 (at para 80): Retribution in a criminal context [in contrast to vengeance], represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risktaking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. As R. Cross has noted in The English Sentencing System (2nd ed. 1975), at p. 121: The retributivist insists that the punishment must not be disproportionate to the offender s deserts.

29 Page: 29 [80] Retribution can be contrasted with utilitarian theories, such as deterrence and rehabilitation, which emphasize the relationship between punishment and the positive consequences of it in preventing future crimes. Professor George P. Fletcher describes the distinction this way: Punishment can either be deserved on retributive grounds or it can be useful as an instrument of social protection (George P Fletcher, The Place of Victims in the Theory of Retribution (1999) 3:51 Buff Crim L Rev 51 at 52). [81] Retribution can also be distinguished from the objective of denunciation (which can be seen as a variation of either retributive or utilitarian thinking) (see Sir Rupert Cross & Andrew Ashworth, The English Sentencing System, 3rd ed (London, UK: Butterworths, 1981) at ; HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law, 2nd ed (New York: Oxford University Press, 2008) at ; and R v Morrisey, 2000 SCC 39 at para 54). The starting point for the principle of denunciation is the symbiotic relationship between law and shared community values, such as the prohibition against homicide or the protection of sexual integrity. The aim of denunciation is to maintain respect for the law by society as a whole for such norms. A denunciatory sentence communicates society s disapproval of the wrongdoing while also affirming the importance of the values that the criminal law enforces for the benefit of everyone (see M (CA) at para 81). [82] The language used in section 38 of the YCJA incorporates both retributivist and utilitarian theories of punishment. The process for determining whether a youth sentence will hold a young person accountable was discussed by my colleague, Steel JA, in H (CT) in the following manner (at para 26):