COURT FILE NO.: YC-23-97, CR-23-98

DATE: 2024-06-11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King

P. Keen and K. Srolduski, for the Crown

• and -

C.R.

R. Amy, for the Accused

Accused

HEARD: May 2, 2024, at Kenora, Ontario

Mr. Justice J.S. Fregeau

WARNING

A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING

UNDER S. 110 OF THE YOUTH CRIMINAL JUSTICE ACT

Reasons on Application for Adult Sentence

Reasons on Sentence

Youth Criminal Justice Act s. 71

INTRODUCTION.. 2

BACKGROUND.. 4

THE PRE-SENTENCE REPORT. 11

PSYCHOLOGICAL REPORT AND RISK ASSESSMENT UNDER SECTION 34 YCJA.. 15

THE LAW... 19

The Youth Criminal Justice Act 19

The Relevant Jurisprudence. 20

(i) The Presumption of Diminished Moral Blameworthiness. 20

(ii) Whether a Youth Sentence would be of Sufficient Length to hold the Offender Accountable 25

THE POSITION OF THE CROWN.. 28

THE POSITION OF THE YOUNG PERSON.. 31

ANALYSIS. 34

Has the Presumption of Diminished Moral Blameworthiness been Rebutted?. 34

The Relevant Factors. 35

The Seriousness and Circumstances of the Offence. 35

The Circumstances of the Young Person. 38

Conduct After the Offence. 39

Conclusion s. 72(1)(a) YCJA.. 42

The Appropriate Youth Sentence. 44

Legal Parameters. 44

Positions of Crown and Defence. 45

The Crown. 45

The Defence. 45

Case Law.. 46

YCJA Declaration of Principle. 51

INTRODUCTION

[1] On July 14, 2023, C.R., a young person within the meaning of the Youth Criminal Justice Act, pled guilty to the following offences:

1. That between August 8, 2018 and July 24, 2020, knowing that B.L. and S.P. had murdered H.S-A., did assist B.L. and S.P. for the purpose of enabling B.L. and S.P. to escape, contrary to s. 240 of the Criminal Code; and

2. That on or about August 8, 2018, did by electronic communication, knowingly convey a threat to H.S-A. to cause bodily harm to H.S-A. contrary to s. 264.1(1)(a) of the Criminal Code.

[2] On July 14, 2023, C.R., as an adult, also pled guilty to the following offence:

1. That on or about January 6, 2023, did while bound to comply with an order under s. 515(12), 516(2) or 522(2.1) of the Criminal Code, fail to comply with that order, to wit: abstain from communicating directly or indirectly with any person named in the order, namely B.L., contrary to s. 145(5)(b) of the Criminal Code.

[3] Pursuant to section 64(1) of the Youth Criminal Justice Act (“YCJA”), before a young person is sentenced, the Crown may make an application to the Youth Justice Court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years and which was committed after the young person attained the age of 14 years.

[4] A person convicted of the offence of accessory after the fact to murder, contrary to section 240 of the Criminal Code, is liable to imprisonment for life. C.R. was born on July 25, 2002. The s. 240 offence occurred over a span of time following the August 8, 2018, murder of H.S-A.. C.R. was 16 years of age at the time of the s. 240 offence.

[5] On June 20, 2022, the Crown gave notice of its intention to seek an adult sentence for C.R. in relation to the offence of being an accessory after the fact to B.L. and S.P.’s August 8, 2018 murder of H.S-A.. It is not in dispute that the procedural requirements for an adult sentence have been met.

[6] The Crown seeks a custodial sentence of seven years, less credit for pre-sentence custody calculated on a 1.5 to 1 basis. It is agreed that C.R. has served 540 days pre-sentence custody as of the date of this hearing, namely May 2, 2024. She has served a further 40 days of pre-sentence custody while this decision has been on reserve, for a total of 580 days pre-sentence custody. A seven-year custodial sentence less credit for time served would result in an adult custodial sentence of approximately 4.5 years going forward.

[7] The maximum youth sentence available for being an accessory after the fact to murder is two years custody, followed by one-year supervision, which can be imposed without credit for any pre-sentence custody.

[8] C.R. is also to be sentenced, as a young person, on the charge of threatening to cause bodily harm to H.S-A. on the day that he was murdered, contrary to s. 264.1(1)(a) of the Code, and as an adult, on the charge of fail to comply with the non-communication terms of a detention order in relation to B.L., contrary to s. 145(5)(b) of the Code.

BACKGROUND

[9] Counsel have filed an Agreed Statement of Facts on this application.

[10] H.S-A. was a 28-year-old, developmentally delayed adult, yet capable of maintaining employment, when he was murdered on or about August 8, 2018. He was involved in the drug subculture in Dryden, Ontario, and in particular, was a "user" of methamphetamines. Shortly prior to his death, he had been arrested, charged and released for possession of methamphetamines. As a result of his quick release from custody, he was regarded as a “rat” within the Dryden drug subculture. C.R. was a friend/acquaintance of H.S-A..

[11] B.L. was 17 years old at the time of H.S-A.’s death. In August 2018, he and C.R. were involved in a romantic relationship. In the period prior to H.S-A.’s murder, B.L. believed him to be a “rat” and a pedophile and believed he had an inappropriate romantic interest in C.R.. B.L. has pled guilty to the second degree murder of H.S-A. and the Crown has applied to have him sentenced as an adult for this murder.

[12] S.P. was 15 years old at the time of H.S-A.’s death. He is B.L.’s cousin. In August 2018, S.P. lived at 82 Trist Road, the location of H.S-A.’s murder. This is a rural property outside of Dryden, consisting of a house, outbuildings, a fire pit and burn barrel. S.P. has also pled guilty to the second degree murder of H.S-A. and the Crown has applied to have him sentenced as an adult for this murder.

[13] Prior to August 8, 2018, C.R. and B.L. had expressed animus toward H.S-A., including:

1. On August 1, 2018, B.L. told a cousin of his that he is going to kill H.S-A. for “narcing” on him; and

2. On August 8, 2018, at 10:50 pm, C.R. texted a third party as follows:

C.R. : “Okay… [I’m going to] deal with H.S-A. before then”

Third Party: “Deal with him”

C.R. : He’s a snitch. Ratting all his plugs out…people getting raided cause of him…he’s a bitch and [I’m going to] knock his ass out [laughing my fucking ass off].

[14] C.R.’s August 8, 2018, text message forms the basis of the August 8, 2018, threatening charge to which she has pled guilty.

[15] It is acknowledged that C.R. had expressed animus toward H.S-A. prior to his murder. C.R. was aware that H.S-A. was being invited to 82 Trist Road by B.L., and that B.L. intended to assault him. It is further admitted that C.R. was involved in discussions with B.L. and S.P. in which their joint dislike of H.S-A. was discussed, and that some of these discussions involved voicing an intent to harm H.S-A..

[16] H.S-A. arrived at 82 Trist Road at approximately 10:30 pm on August 8, 2018, and was murdered by B.L. and S.P. at some point prior to 3:00 am on August 9, 2018. On August 9, 2018, as a result of H.S-A.’s mother reporting him missing, police attended 82 Trist Road and spoke with S.P. who allowed police to look in the residence. S.P. told the police he had not seen H.S-A. in approximately two months.

[17] A missing persons search began for H.S-A.. In the period of time following H.S-A.’s disappearance, police began to receive reports of rumours circulating in Dryden that he had been murdered and possibly dismembered.

[18] C.R., B.L. and S.P. were spoken to by the police informally and they were also formally interviewed. Each of these three individuals put themselves together at 82 Trist Road on the night of August 8-9, 2018, and all three advised police that they had not seen H.S-A. in a long time.

[19] On August 17, 2018, police searched the outbuildings and property at 82 Trist Road. A human bone was found in the fire pit and a foul smell was noted coming from the burn barrel. A comprehensive search of the house, outbuildings and surrounding property at 82 Trist Road followed. Parts of H.S-A.’s body were located in a number of locations, including:

• his head and part of his intestines were located in the burn barrel; and

• a shoulder blade, spine and attached tissue were located in and around a garbage bag found in the bush.

[20] Inside the residence at 82 Trist Road, evidence of a significant bloodletting scene and blood splatter was located in the living room, and evidence of an attempted clean-up was located in the kitchen. The blood located was determined to be that of H.S-A..

[21] Several weapons and objects were found that had blood on them:

• a Nike baseball bat with H.S-A.’s blood on the barrel and C.R.’s DNA on the grip. B.L. and S.P.’s DNA could not be excluded as being on the handle of this bat;

• an Easton baseball bat with H.S-A.’s blood on the barrell and C.R.’s DNA on the grip. B.L. and S.P.’s DNA could not be excluded as being on the handle of the bat;

• a hatchet with H.S-A.’s DNA on it and C.R’s DNA on the handle. B.L. and S.P.’s DNA could not be excluded as being on the handle of the hatchet;

• a machete. B.L., S.P. and H.S-A.’s DNA could not be excluded as being on the handle of the machete; and

• a pair of shears with H.S-A.’s blood on them.

[22] The partial remains of H.S-A. that were found were examined by a forensic pathologist and a forensic anthropologist. Their reports indicate, among other conclusions, that:

• the cause of death was blunt and sharp force head injury – the skull had been split in two, possibly with a hatchet;

• the body cavity had been eviscerated;

• the head had been decapitated;

• there was evidence of blunt force trauma to the body, possibly caused by blows with a hatchet and baseball bat;

• the body had been dismembered with sharp instruments; and

• there had been an attempt post-mortem to burn the body prior to dismemberment. Decapitation occurred after the attempt to burn the body.

[23] Prior to and after the murder of H.S-A., B.L. made numerous inculpatory statements to a number of witnesses. Police seized C.R.’s cell phone and found incriminating text messages between B.L. and C.R. from September 2, 2018. Police also located a post-murder Facebook exchange between C.R. and S.P. in which the two of them appear to be joking about the effect that the mace had on them in and around the time of the murder.

[24] Eventually, in 2021, a prolonged undercover operation was conducted to determine exactly what had happened to H.S-A.. Police had to wait until the suspects were adults to begin this portion of their investigation. The undercover operation concluded in 2022.

[25] B.L. provided incriminating information about the murder of H.S-A. to undercover operators on May 2, 2022, and again on May 25, 2022. The two accounts differed. However, in each of these accounts, B.L. described how he and S.P. had viciously murdered H.S-A. with the hatchet and baseball bats, attempted to burn his body, and then dismembered him.

[26] In each of these accounts, B.L. told undercover operators that he, S.P., and C.R. were present at 82 Trist Road with H.S-A., immediately prior to the murder. He further told undercover operators that he either told C.R. to go upstairs and not to come back down, or that he took her upstairs, locked her in a room and told her not to come out no matter how much screaming she heard.

[27] On June 2, 2022, S.P. provided an account of the murder to undercover operators. For the purposes of this application, his version of events did not differ materially from B.L.’s versions. S.P. told undercover operators that C.R. was upstairs at 82 Trist Road “the entire time and left the next day”.

[28] A DNA warrant was executed on C.R. on September 6, 2022. As noted, her DNA was located on the murder weapons and she was subsequently arrested and charged with murder. Over the course of this entire investigation, C.R. gave a number of statements to the police:

• August 10, 2018 – C.R. returned a call from an officer and advised the officer that she had not seen H.S-A. since July 29;

• August 10, 2018 – C.R. was interviewed by a detective during the initial search for H.S-A.. C.R. told this police officer that she had not seen H.S-A. since May 2018, and that she had last seen him on July 25, 2018, when he came to 82 Trist Road. She further told this detective that she had been at 82 Trist Road overnight August 8-9, 2018, and that she had not seen H.S-A.;

• August 23, 2018 – By this time police understood that H.S-A. had likely been murdered, but how and by whom, was unknown. C.R. was interviewed by police with her father present. Among other things, C.R. provided the following statement as to her whereabouts August 8-9, 2018:

I went out to the Trist house and I went back to town and stayed in town till like 7:00 that night and then I went back out there and then I went to bed and then Brayden and Skyler were downstairs and then I was sleeping the whole night and then I woke up in the morning and then I heard that Henry’s mom showed up out there saying that Henry was missing and then I didn’t hear anything about that and I was like what the frig and then I went back home and I stayed at home for a bit and then I went to Manitoba after all that stuff happened.

When she was questioned further about this, C.R. provided a detailed, exculpatory account of her activities in and around August 8-9, 2018. After the police left the interview room, C.R. is heard whispering to her father that “I fucked up.”

• June 15, 2022 – C.R. told police that she had been at 82 Trist Road on August 8-9, 2018, with B.L. and S.P.. She stated that she knew that H.S-A. was supposed to come over but that she did not see him arrive. C.R. told police that after she had gone upstairs for the night, she heard loud bangs coming from downstairs. The next morning when she came downstairs, she saw B.L. and S.P. cutting out a section of carpet and cleaning up blood. She refused to help clean up. She was picked up by her mother between approximately 11 am to noon on August 9, 2018. C.R. told police that she did not see H.S-A. while at 82 Trist Road August 8-9, 2018, but given what she had seen, she knew something bad had happened.

C.R. further told police that she met with B.L. and S.P. at school later in the day on August 9, 2018, and that they told her how they had murdered H.S-A. and that they had “taken care” of the body without providing details. C.R. told police that she was told that if she said anything she would be met with the same fate. C.R., when questioned about the murder weapons found at the scene, denied that there was any way her DNA could be on those items.

• November 23, 2022 – After C.R.’s DNA was located on the murder weapons, she was arrested for first degree murder, was questioned by police, and provided another version of the events of August 8-9, 2018. C.R. told police that B.L. believed that H.S-A. had “ratted” on him, resulting in B.L. ’s arrest on July 20, 2018. She also told the police that B.L. had asked her to help him kill H.S-A., and that she refused. She further told police that she had overheard B.L. ask S.P. to help him kill H.S-A. and tell him that if they did so, they could get into the Native Syndicate gang, and that S.P. agreed to help B.L. commit H.S-A.’s murder.

C.R. told police that she arrived at 82 Trist Road on August 8, 2018, around supper time, and that B.L. and S.P. were talking about hurting H.S-A.. C.R. was aware that H.S-A. was coming to 82 Trist Road that night. She told police that she cautioned B.L. and S.P. against using a bat to beat H.S-A. because it could easily kill him.

C.R. told police that she went upstairs and that B.L. came upstairs at about 9:00 pm, took her phone so that she could not call 911 “when stuff goes down” and told her to stay upstairs. C.R. told police that she fell asleep soon after B.L. went back downstairs.

C.R. told police that she woke up at about 2:00 am as a result of hearing H.S-A. screaming and begging for his life. She got up and began to walk towards the stairs but was stopped at the top of the stairs by B.L., without seeing anything. B.L. told C.R. that he had struck H.S-A. in the head with the hatchet, that he was likely going to die, and that she was to stay in the bedroom and not come downstairs.

C.R. told police that she went downstairs in the morning and saw B.L. cutting up carpet and cleaning up blood. She walked outside and saw S.P. holding garden shears. She asked what he was doing and he replied “cutting up Henry’s bones.” C.R. told police that she asked her mother to pick her up, which she did a short time later, but also told the police that she met with B.L. later that day and that he threatened her life if she told anyone what she knew.

[29] The Agreed Statement of Facts states that during the period following the murder, C.R., knowing that B.L. and S.P. had murdered H.S-A., provided extensive information to the police diverting their attention from 82 Trist Road, and hiding the fact that they had committed the murder.

[30] The Agreed Statement of Facts further acknowledges that the evidence establishes that C.R.’s “predominant purpose in lying to the police was for the purpose of helping B.L. and S.P.” avoid culpability in the murder.

[31] It is agreed that for the purposes of this application, the bulk of C.R.’s “offending behaviour” in relation to the charge of being an accessory after the fact to murder occurred between August 8, 2018 and the late fall of 2018.

[32] In or about December 2022/January 2023, while C.R. and B.L. were in custody and charged with the murder of H.S-A., B.L. initiated the illicit exchange of a series of letters between himself and C.R.. In these communications, B.L. suggests that he and C.R. conspire to “pin” the murder charge on S.P.. C.R. responded to B.L. by telling him to do whatever he has to do to get her out of this. This communication forms the basis of the s. 145(5)(b) Criminal Code charge for which C.R. has, as an adult, pled guilty.

THE PRE-SENTENCE REPORT

[33] As required by section 72(3) of the YCJA, a Pre-Sentence Report (the “PSR”), dated December 13, 2023, was filed for this application.

[34] C.R. has no prior involvement with the criminal justice system. By all accounts, she enjoyed a loving, happy, safe, stable and supportive family life, free of any form of abuse or neglect and free from exposure to any form of drug or alcohol abuse.

[35] C.R. has an older half-brother and an older biological brother, both of whom she maintains a close relationship with. C.R.’s parents separated amicably in 2012, when she was 10 years old. After her parents separated, C.R. resided primarily with her mother but enjoyed extended visits with her father in the context of an active and positive co-parenting regime. Both of C.R.’s parents have been responsible, contributing members of society throughout their lives.

[36] C.R. was a gifted and highly motivated athlete during her formative years. While doing well in all sports she participated in, she excelled in hockey and made the Dryden Eagles High School team in her Grade 9 year. However, C.R. suffered multiple serious concussions in a short period of time while playing hockey in Grade 9. This abruptly ended her hockey career and caused her to suffer serious, lingering physical symptoms, including migraines, vomiting, neck and back pain and vision changes.

[37] C.R. and her parents described these events as precipitating a significant and ultimately tragic change in C.R.’s life. At first blush, this may seem overdramatic. However, it appears obvious that this was in fact the case, particularly when viewed through the eyes of a 14-year-old adolescent.

[38] After her injuries, C.R.’s former teammates and the “hockey crowd” abandoned her such that she lost both the sport she was passionate about and the close friendships that went with it. C.R. quickly gravitated to a new and extremely negative peer group, many of them significantly older than her and known to the author of the PSR as being involved in the criminal justice system. C.R. began to skip school and, as a young teenager, experiment with alcohol and drugs, including the regular use of marijuana, crystal meth, magic mushrooms, MDMA and the occasional use of cocaine.

[39] During this period of time, C.R.’s parents were unaware of who she was now associating with and were unaware of the extent of her drug and alcohol use. However, they were aware of C.R.’s struggles academically and socially and each of them reached out to her to help her in any way they could. Unfortunately, their efforts were unsuccessful, and C.R. dropped out of school prior to the completion of Grade 10.

[40] In 2018, C.R. began a brief romantic relationship with B.L., whom C.R. alleges physically and sexually abused her and further drew her into the criminal and drug subculture in Dryden. This relationship apparently ended in the fall of 2018.

[41] Surprisingly, given what was going on in her life as a young teenager, C.R. was regularly employed and held in high regard by her employers. When C.R. was 15 years old and in Grade 9 playing on the high school hockey team and was doing well in school, she also worked at McDonald’s for approximately seven months. In 2019, C.R. got a job working at the Starbucks coffee shop at the local Safeway store. She held this employment for three years. In 2021, she began working at Pizza Hut in a variety of roles, including shift manager. She held this employment until her arrest in 2022. Notably, the General Manager of Pizza Hut has maintained a personal relationship with C.R. during her incarceration and has confirmed that a job is available to her when she is released from custody.

[42] The PSR notes that many people describe C.R. in “very positive terms”, despite her past association with negative peer group, drug use and recent criminal behaviour. C.R. was in detention for 12 days (June 16-27, 2022) at the Donald Doucet Youth Centre. The Discharge Summary described her as compliant and interacting positively with staff.

[43] C.R. has been in detention at the Kenora District Jail since November 24, 2022. The only “misconduct” noted during this extended period of time is that C.R. was the victim of a sexual assault by another inmate. The PSR notes that Amy Kristalovich, Addiction Counsellor at the Kenora District Jail, described her interactions with C.R. as “pleasant, understanding and patient”. In an extremely positive letter of reference dated May 17, 2023, and which was filed with the court on this application, Ms. Kristalovich states that C.R. has “demonstrated program readiness and positive engagement with institutional programming and staff” and that she has “participated in all programming…available to her…from life skills to mental health and substance abuse”, including the completion of 16 “program workbooks”.

[44] Ms. Kristalovich further notes that C.R. has, since December 2022, completed all but three of her high school credits through the distance education program. On a more personal note, Ms. Kristalovich describes C.R. as having been “nothing but kind, respectful and patient” during their interactions.

[45] The PSR notes that Alicia Scott, Regional General Manager, Pizza Hut, Dryden, in a character reference dated May 31, 2023, described C.R. as “honest, trustworthy, kind, caring, efficient and punctual”.

[46] However, the PSR also details the very negative opinions of C.R. expressed by Inspector C. Davidson, Victim Response Support Unit, Criminal Investigation Support Services, OPP, and by Detective Constable B. Armit, OPP. Inspector Davidson has served as the victim liaison officer with H.S-A.’s family since 2018, and D/C Armit has been the lead investigator on this case for six years.

[47] These officers describe C.R. as “a compulsive liar, selfish, deceptive, a heavy drug user from a young age” and extremely rude to and demanding of her parents. Notably, the officers described C.R. as having been “cognizant” of police presence and having employed “cautious” behaviour (i.e., avoided leaving a cigarette butt on the ground) during a six-year investigation. The officers specifically commented on C.R.’s ability, as a teenager, to maintain the life that she did following the 2018 murder of H.S-A. without any apparent remorse or change in her demeanour throughout this lengthy police investigation. The officers reasonably attribute the prolonged investigation, and its very traumatic impact on the family of H.S-A., to C.R.’s compulsive lying and deceit.

[48] The officers described to the author of the PSR the devastating impact the loss of H.S-A. has had on his entire family, to the extent that they were simply unable to speak to the PSR writer directly. This family, because of their son having been brutally murdered and dismembered, coupled with the nature and length of the police investigation, has suffered and continue to suffer exceptional trauma from which they will never recover.

[49] The PSR did note that C.R. “takes accountability for her actions and expressed remorse for her involvement in the offence.”

PSYCHOLOGICAL REPORT AND RISK ASSESSMENT UNDER SECTION 34 YCJA

[50] Pursuant to section 34(2)(b) of the YCJA, Dr. P. Klassen, Forensic Psychiatrist, provided a Psychiatric Assessment, dated January 18, 2024, for the purposes of this application. Dr. Klassen met with C.R. at the Kenora District Jail on September 21, 2023 and December 22, 2023, for a total interview time of approximately three hours. Dr. Klassen also reviewed collateral information, including the Agreed Statement of Facts and the PSR, and spoke with numerous collateral sources.

[51] Dr. Klassen’s report comprehensively recites C.R.’s family history, much of which has been covered in my review of the PSR. I will comment only on the portions of this history, as recited by Dr. Klassen, which differ in a material and relevant way from the PSR or that may help explain, from a psychological perspective, C.R.’s level of maturity, moral sophistication and capacity for independent judgement in and around the time that H.S-A. was murdered.

[52] C.R. told Dr. Klassen that she never posed a behavioural problem at school, and that her social experience was good until she was dropped from her hockey peer group in the winter of 2017, and began to associate with B.L., S.P. and others (males more than females) who engaged in criminal activity and substance abuse.

[53] C.R. advised Dr. Klassen that she was first sexually active at 13 years old, and at the time of this report, had had 12 or 13 sexual partners, four of whom were within dating relationships. C.R. told Dr. Klassen that she briefly dated B.L. in 2018 after she had dropped out of school. C.R. described B.L. as sexually, physically and emotionally abusive toward her, none of which she disclosed to anyone at the time.

[54] C.R. informed Dr. Klassen that her first serious relationship was at age 17 or 18 years old, with a 24-year-old male. C.R. described this partner as physically and emotionally abusive, causing her to end the relationship after six months.

[55] C.R. was in another on/off relationship between 2020 and 2022. C.R. reported that this partner drank too much and was seriously physically abusive to her, which she did not report to police or ever discuss with family or friends.

[56] Dr. Klassen specifically asked C.R. how she managed to withhold the information she had regarding H.S-A.’s murder. She reported that she did not want to see her family hurt, that she “felt a good deal of stress” but that work occupied her. She further told Dr. Klassen that she was “close to telling the police, at times.”

[57] In Dr. Klassen’s formal diagnosis of C.R., he started by considering the time period around late 2016 when C.R. experienced multiple losses. She was unable to play hockey, gravitated away from athletic friends and towards more “marginalized individuals” and then left school and a job at age 15, all seemingly due to a combination of post-concussive symptoms, academic struggles, anxiety, conflict with a teacher and then some family challenges.

[58] Within this context, Dr. Klassen opined that “C.R. appears to have regressed, in terms of her adolescent development.” Dr. Klassen noted that C.R. :

• did not return to school or employment until after the events of August 2018;

• associated with troubled partners and friends and engaged in “significant substance misuse”; and

• her romantic relationships involved aggressive and/or sexually aggressive behaviour toward her.

[59] Dr. Klassen also noted that all the above appears to have taken place outside of effective parental surveillance and without any form of disclosure from C.R..

[60] Dr. Klassen, having noted the multiple losses suffered by C.R. beginning in late 2016 and the regression of her adolescent development after 2016, diagnosed C.R. as having suffered from “an adjustment disorder with mixed depression and anxiety”. Dr. Klassen explained that the DSM-5 sets out that a person may be so diagnosed when they face a set of stressors that tax or exceed their coping capacity, resulting in symptom formation.

[61] Dr. Klassen further diagnosed C.R. with an “other specified trauma-or-stressor-related disorder”. Dr. Klassen explained how this diagnosis applies when an individual suffers some post-traumatic symptoms, but the severity of the symptoms do not arise to a PTSD diagnosis. Dr. Klassen noted that C.R. was reporting symptoms of PTSD, identifying trauma symptoms flowing from the time of the offence, from her abusive experiences with ex-partners, and from a fellow inmate.

[62] Dr. Klassen also noted that while C.R. did not suffer from a "personality disorder per se", he opined that C.R. suffered from avoidant and dependent personality traits. Accordingly, Dr. Klassen identified concerning patterns in C.R.'s behaviour which suggest that she may be at risk for continuing such behaviour in the future. Specifically, Dr. Klassen identified C.R. 's pattern of behaviour in; (1) consistently choosing troubled male partners who were, according to C.R., aggressive and substance-misusing and (2) her non-disclosure of her challenges and misuse of substances, and her non-reporting of violent behaviour, both internal and external of the romantic relationship.

[63] However, Dr. Klassen also noted that “admittedly both are quite characteristic of adolescence.” He opined that such patterns reflect underlying anger in the context of a sense of loss of control over one's life and loss of self-efficacy. Nevertheless, Dr. Klassen candidly concluded the diagnostic section of his report by noting that:

Whether C.R. has a lasting tolerance for social deviance, or whether her participation in social deviance was predicated on distress and alienation, perhaps compounded by fear of retribution, is very difficult to opine on.

[64] Dr. Klassen concluded his report by opining that C.R. is at low risk of violent behaviour, “depending on release considerations” and risk management.

THE LAW

The Youth Criminal Justice Act

[65] The relevant provisions of the YCJA are as follows:

71 Hearing – adult sentences

The youth justice court shall, at the commencement of the sentencing hearing, hold a hearing in respect of an application under subsection 64(1) (application for adult sentence), unless the court has received notice that the application is not opposed. Both parties and the parents of the young person shall be given an opportunity to be heard at the hearing.

72(1) Order of adult sentence

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 purposes 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.

72(1.1) Order of youth sentence

If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.

72 (2) Onus

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

73 (1) Court must impose adult sentence

When the youth justice court makes an order under subsection 72(1) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.

73(2) Court must impose a youth sentence

When the youth justice court makes an order under subsection 72(1.1) in respect of a young person, the court shall, on a finding of guilt, impose a youth sentence on the young person.

The Relevant Jurisprudence

(i) The Presumption of Diminished Moral Blameworthiness

[66] In R. v. D.B. [2008] 2 S.C.R. 3, 2008 SCC 25, (“D.B.”), the Supreme Court of Canada considered a s. 7 Charter application challenging the constitutionality of a previous iteration of the YCJA which stipulated that an adult sentence is presumed to apply in the case of certain “presumptive offences”. In striking the impugned provisions, the Court held that the presumption of diminished moral culpability to which young persons are entitled is a principal of fundamental justice which requires the Crown to justify the loss of a youth sentence.

[67] At para. 41 of D.B., the court stated the following:

What the [reverse] 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 a heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. [Emphasis in original.]

[68] In R. v. M.W., 2017 ONCA 22, 245 C.C.C. (3d) 319 (“M.W.”) two youths were sentenced as adults before the YCJA was amended to expressly include the presumption of diminished moral culpability. At para. 23, the court held that since the decision in D.B., youth court judges have been required to presume diminished moral blameworthiness for all young persons:

Before a youth court judge can sentence a young person as an adult, the Crown must satisfy the court that the presumption of diminished moral blameworthiness to which the young person is constitutionally entitled has been rebutted and that a youth sentence would not be of sufficient length to hold the young person accountable for his or her offending behaviour. As can be seen from the wording of the legislation, to be successful in an application to impose an adult sentence, the Crown must satisfy both parts of the test. [Citations omitted.]

[69] Recently, in R. v. S.B., 2023 ONCA 369, 426 C.C.C. (3d) 367, at para. 38 (“S.B.”), the Court of Appeal for Ontario reiterated what they referred to as “this critical youth sentencing principle”:

The Supreme Court of Canada in R. v. D.B., established that the presumption of diminished moral culpability is a principal of fundamental justice. As such, there should be no offence for which a youth should be presumptively sentenced as an adult. Rather, in all circumstances, the Crown bears the onus of showing that the presumption has been rebutted, and that a youth sentence under the YCJA would not be sufficient to hold the offender accountable for their criminal conduct. [Citations omitted.]

[70] Section 72(1) of the YCJA is expressly structured as a “two-pronged test in which the Crown must satisfy both prongs.” In M.W., at para. 95, the Court of Appeal emphasized the importance of undertaking separate analyses for each prong of the test:

The two prongs address related but distinct questions and, although similar factors are applicable to both, there is not a complete overlap. It is not necessarily the case that every factor relevant to an assessment of whether a youth sentence would hold a young person accountable is relevant to the question of whether the Crown has rebutted the Presumption.

[71] Section 72(1) of the YCJA places the onus to satisfy both prongs of the test on the Crown. If the youth court judge is not “satisfied” that both requirements of s. 72(1) have been established, a youth sentence must be imposed. The nature of the onus placed on the Crown by the use of the word “satisfied” in s. 72(1) of the YCJA was subject to comments by the Court of Appeal for Manitoba in R. v. Okemow, 2017 MBCA 59, [2017] M.J. No. 173, at para. 61 (“Okemow”):

The task placed on a youth justice court by Parliament under section 72(1) of the YCJA is a difficult and delicate one. In R. v. L. (B.), 2013 MBQB 89 (Man. Q.B.), I explained the nature of the onus on the Crown under section 72(1) of the YCJA in the following manner (at para. 36):

The Crown bears the onus of proof in this application. The onus to order a young person liable for an adult sentence is neither proof beyond a reasonable doubt nor proof on a balance of probabilities. Rather, the standard is one of satisfaction after careful consideration by the court of all the relevant factors.

[72] At the first prong of the s. 72(1) test, the Crown, in order to rebut the presumption of diminished moral blameworthiness or culpability, must satisfy the court that, at the time of the offence, the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to him or her: M.W. at para. 98.

[73] Paragraph 98 of M.W. was recently reiterated and applied by Tulloch, J.A. of the Court of Appeal for Ontario in S.B. at para. 60:

I find that the Crown has successfully rebutted the Presumption. SB’s actions demonstrate a “level of maturity, moral sophistication, and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply” to him: R. v. M.W. at para. 98.

[74] The seriousness of the offence and the circumstances of the offender must be considered in determining whether the Crown has rebutted the presumption of diminished moral blameworthiness. However, in M.W., at para. 112, the Court of Appeal for Ontario cautioned trial judges as follows:

The seriousness of the offence does not, in itself, lead to the conclusion that an adult sentence should be imposed. This is apparent from the fact that the YCJA provides for a penalty for first degree murder.… Rather, what is relevant to an analysis of whether the presumption has been rebutted is the level of moral judgment or sophistication demonstrated in the planning and implementation of the offence, and the young person’s role in carrying out the offence.

[75] R. v. Chol, 2018 BCCA 179 (“Chol”), was an appeal of an adult sentence imposed on a young person convicted of manslaughter. The primary ground of appeal was that the trial judge erred in finding that the Crown had rebutted the presumption of diminished moral blameworthiness in s. 72(1)(a) of the YCJA because she blended the two-prong test in s. 72(1)(a) and (b). At paras. 43 and 44, the Court of Appeal for British Columbia re-affirmed that s. 72(1) of the YCJA establishes two distinct steps in the analysis of whether an adult sentence should be imposed on a young person. The court went on to note, as did the Court of Appeal for Ontario at para. 95 of M.W., that the same factors may be considered on each prong of the test, but apply differently on each:

43 Parliament has created two distinct steps in the analysis of whether an adult sentence should be imposed on a young person. If the Crown fails on the first prong of the test, s. 72(1)(a), it is unnecessary to consider the other prong, s. 72(1)(b). The judge correctly noted that moral blameworthiness is relevant to both questions, but the questions themselves are of a different character. One considers whether the offender’s moral blameworthiness is that of a youth or adult, whereas the other considers whether a youth sentence would be proportionate to the level of moral blameworthiness to hold the young person accountable, among other factors. The answers are related, but one is not determinative of the other.

44 Further, it may be that the same factor weighs differently in each prong of the test. For example, considering the presumption prong, violent conduct may be evidence of immaturity, lack of judgment and/or a failure to appreciate the consequences of one’s actions; but considering the accountability prong, it may also suggest the need for increased accountability.

[76] At para. 60 of Chol, Stromberg-Stein J.A. noted that “the assessment of the presumption prong is a case-dependent, fact-dependent determination and not all of the same factors will be present or relevant in each case. Consideration of this issue requires looking at both the circumstances of the offence and of the offender.”

[77] At para. 61, Stromberg-Stein J.A. very helpfully compiled a non-exhaustive list of factors to be considered when engaging in a s. 72(1)(a) analysis:

Circumstances of the young person

• The young person’s age.

• The young person’s background and antecedents

• At the time of the offence was the young person living like an adult and, if so, was that by choice?

• Has the young person committed previous offences?

• At the time of the offence was the young person dependent on others and/or vulnerable to the influence of others?

• At the time of the offence were there any cognitive limitations or emotional or mental health issues?

• The young person’s cognitive limitations and emotional and mental health, while relevant to this prong, should not overwhelm the analysis. The presumption is founded on reduced moral culpability as a result of youthfulness. In some cases, it may be that it is more appropriate to take these factors into account in the s. 72(1)(b) analysis, or in determining an appropriate sentence.

Circumstances of the offence

• Is the offence indicative of impulsiveness, bravado or a sense of invincibility?

• Was the offence planned or premeditated?

• Is the motive for the offence indicative of mature or immature reasoning?

• What was the young person’s role in the offence?

• Did the young person choose to engage in the impugned activity?

• Do the young person’s actions demonstrate critical thinking and adult-like judgment?

• Once the offence was initiated, did the young person take steps to follow through or to cover it up afterwards?

• Did the young person understand the consequences of his or her actions, in terms of criminal sanctions and impact on others?

Conduct after the offence

• Did the young person take responsibility after the offence or demonstrate remorse?

• Does the young person’s personal growth since the offence (or lack thereof) indicate anything about the young person at the time of the offence?

[78] At para. 62 of Chol, the Court of Appeal for British Columbia observed that no one factor alone is determinative of the result and that some factors may weigh both for and against the presumption being rebutted.

[79] To the above list of factors noted by the court under Circumstances of the young person, the Court of Appeal for Ontario would add “the young person’s level of moral judgment, intelligence and sophistication demonstrated in the planning and implementation of the offence.”: M.W. at para. 112; see also R. v. I.M., 2023 ONCA 378, 426 C.C.C. (3d) 468.

(ii) Whether a Youth Sentence would be of Sufficient Length to hold the Offender Accountable

[80] C.R. has been convicted of two offences as a young person. However, the application for an adult sentence is in relation only to the conviction for being an accessory after the fact to murder, contrary to s. 240 of the Criminal Code.

[81] In R. v. Wisdom, [1992] O.J. No. 3110, 1992 CarswellOnt 1757 (Ont. Gen. Div.) (“Wisdom”), Watt J. (as he then was) commented extensively on the gravity of the offence of being an accessory after the fact to murder. At para. 25, Watt J. noted that upon conviction for being an accessory after the fact to the commission of an indictable offence for which an accused may be sentenced to imprisonment for life, the accused accessory is liable to imprisonment for a term not exceeding 14 years. However, the Criminal Code has made an exception for conviction of accessory after the fact to murder, in which case the maximum punishment is life imprisonment, thus making this offence one of the most serious crimes under our law.

[82] At paras. 27, 28 and 29 of Wisdom, Watt J. described, in words I find germane to the issue before me, the very serious nature of “accessoryship after the fact to a crime”:

Accessory after the fact to a crime is an offence which constitutes an interference with the administration of justice. An offence has been committed by a principal offender, in this case the crime of murder. It is the purpose of the accessory…to enable, indeed to facilitate, the principal offender to escape detection and/or punishment for his or her criminal conduct. By the means adopted, whatever they may be, the accessory interferes with the investigation of crime and the detection of the offenders. Serious crimes may go unsolved and dangerous criminals left at liberty only to re-offend. The resourceful accessory stifles the investigation and deflects attention from the true principal….

Accessoryship after the fact frustrates the legitimate investigation of crime. It is as much a part of such investigation to clear the innocent, as it is to convict the guilty. To the extent that accessories deflect the investigation and investigators from their proper or true course, the attendant risks are obvious.

[I]t is of the utmost public importance that all who are knowingly in touch with criminals and who might be minded, for whatever reason, to offer or furnish their assistance, ought to be alive to and fully cognizant of the fact that should they receive, comfort or assist them in order to enable…a principal to escape, then they, the accessories, themselves run a substantial risk of losing their own liberty for a very significant period of time.

[83] As noted, an adult convicted of being an accessory after the fact to murder is liable to imprisonment for life. There is no minimum sentence for being an accessory after the fact to murder.

[84] In sentencing a young person for being an accessory after the fact to murder, a youth court judge is required to apply the fundamental principles set out in s. 3(1)(b)(ii) of the YCJA and the purpose and sentencing principles set out in s. 38(1) and (2) of the YCJA.

[85] R. v. H. (C.T.), 2015 MBCA 4 (“H.C.T.”), was a sentence appeal where a young person was sentenced as an adult after pleading guilty to seven violent offences committed on two separate dates. In dismissing the appeal, the Court of Appeal for Manitoba, at paras. 24 and 26, commented on the concept of accountability in the context of sentencing a young person:

Accountability reflects the moral culpability of the offender. Section 3(1)(b)(iii) [of the YCJA] requires the court to consider the principle that the accountability of adolescent offenders is limited in comparison to that of adults, given their lack of maturity. Therefore, when determining accountability, young people are entitled to a presumption of diminished moral blameworthiness or culpability. [Citation omitted.]

For a sentence to hold a young person accountable, it must achieve two objectives: it must be long enough to reflect the seriousness of the offence and the offender’s role in it; and it also must be long enough to provide reasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society. Reasonable assurance… means a reasonable prediction of future behaviour based on an evaluation of all the evidence. If the sentencing judge finds that a youth sentence would not be long enough to achieve both of these goals, then an adult sentence must be imposed. [Citations omitted.]

[86] If C.R. is sentenced as a youth for the offence of being an accessory after the fact to murder, the maximum sentence available is three years, comprised of two years custody followed by one year of supervision. However, on sentencing a young person, the treatment of pre-sentence custody is discretionary and a sentencing judge is not required to deduct pre-sentence custody from a youth sentence, but is obliged to consider it.

[87] Whether and to what extent credit is given for pre-sentence custody against a youth sentence is within a youth court judge’s discretion, particularly in the context of a Crown application to sentence a youth as an adult. In such cases, pre-sentence custody can be considered in determining whether the young person would serve an adult or youth sentence as opposed to through an actual credit to length of sentence imposed: M.W. at para. 78.

[88] If C.R. is sentenced as a young person for the offence of being an accessory after the fact to murder, it is therefore within my discretion to impose the maximum youth sentence of three years (two years custody and one year of supervision) without giving credit to the approximately 19.5 months (“straight time”) of pre-sentence custody she has already served.

[89] Of note, C.R.’s pre-sentence custody has most certainly not been “dead time”. During this time, she has been an exemplary inmate, having earned 62 Certificates of Completion and essentially completing her high school education with a realistic view toward post-secondary education.

THE POSITION OF THE CROWN

[90] The Crown submits that C.R. ’s accessoryship to B.L. and S.P.’s murder of H.S-A. is at the more serious end of the spectrum for that offence and that her involvement was close to that of a party to the offence of murder.

[91] In addressing s. 72(1)(a) of the YCJA, the Crown submits that this court should be satisfied that the presumption of diminished moral blameworthiness has been rebutted for the following reasons:

• C.R. was involved in discussions during which harming H.S-A. was voiced, that she was aware that he was being invited to 82 Trist Rd. August 8, 2024, and that he was to be harmed that night. These were not the actions of a child. This is evidence of planning and participation in a sustained animus against H.S-A., according to the Crown.

• C.R. was present in the house during the homicide, her DNA was found on three murder weapons and, according to one of her statements, she heard the victim screaming and she knew the murder itself and the subsequent treatment of the body were horrific.

• C.R. engaged in a sustained and committed effort to assist B.L. and S.P. escape liability, including lying to the police numerous times over an extended period of time, resulting in a very prolonged police investigation and incredible trauma to the family of H.S-A..

• C.R.’s lies mirrored those told to the police by the other two accused, leading to the obvious inference that the three of them came up with the story together, evidencing “adult-like” planning to deceive the police.

[92] The Crown acknowledges that there is evidence before the court suggesting that aspects of C.R.’s behaviour at the relevant time were “adolescent-like”. However, the Crown submits that a holistic view of all facts and circumstances shows that her offending behaviour before and, more importantly in the period immediately after the murder, included callousness, conscious planned behaviour in the context of anticipated violence, and goal directed behaviour after the murder, which are adult-like qualities.

[93] The Crown accepts that B.L. was abusive to C.R. and that there was a component of fear in C.R.’s offending behaviour. However, the Crown suggests that C.R. has “overplayed” her fear of the two co-accused in the PSR and in her interviews with Dr. Klassen. The Crown emphasizes that C.R.’s fear did not amount to her acting out of duress when interacting with the police over a prolonged period. To the contrary, the Crown points to an August 15, 2018, text exchange between C.R., in Manitoba at the time, and her mother in which her mother tells C.R. that the police want to interview her about H.S-A.’s disappearance. C.R. responded as follow: “Put it on a milk carton for people who give a fuck…I really don’t have any morals to give a fuck about that guy.”

[94] The Crown also notes that as recently as January 2023, C.R.’s deceptive behaviour continued when she engaged in illicit communications with B.L. in which she requested that he “do whatever he had to do to get her out of this”. The Crown submits that this consistency in C.R.’s planned and goal-directed behaviour between 2018 and 2023 leads to the inference that her conduct in 2018 was adult-like behaviour.

[95] The Crown submits that this court should be satisfied that the presumption of diminished moral blameworthiness has been rebutted.

[96] The Crown further submits, in addressing s. 72(1)(b) of the YCJA, that the maximum youth sentence available, that being two years custody and one year supervision, would not be of sufficient length to hold C.R. accountable for being an accessory after the fact to this murder given the facts and circumstances of this case.

[97] The Crown recognizes that C.R. is a youthful, first-time offender. However, the Crown submits that Parliament has made a life sentence available for the offence of being an accessory after the fact to murder, making this offence one of the most serious crimes in the Criminal Code. The Crown contends that the aggravating features of C.R.’s behaviour, including her presence at the murder scene, creating a false alibi, and lying to the police over a prolonged period of time to deflect attention from the murderers, should result in an adult sentence of seven years custody.

[98] The Crown recognizes that the court can, if sentencing C.R. as a young person, impose a two-year custodial sentence plus one year supervision, consecutive to the approximately 19.5 months (“straight time”) of pre-trial custody she has already served to the date of this decision. The Crown suggests that this would be equivalent to a three-year, five-month period of actual custody, which would be the approximate time spent in custody by someone who received a five-year penitentiary sentence.

[99] The Crown maintains that even when considered in this light, the maximum youth sentence available would not, given the aggravating facts in this case, be of sufficient length to hold C.R. accountable for her offending behaviour.

[100] The Crown submits that it has satisfied the burden set out in s. 72(1)(a) and (b) of the YCJA and that C.R. should be sentenced as an adult to seven years custody for the offence of being an accessory after the fact to the brutal murder of H.S-A..

[101] C.R. will be sentenced as a youth, regardless of the outcome of this application, for the offence of threatening to cause death to H.S-A. on August 8, 2018. The Crown submits that she be sentenced to 30 days custody and 15 days of supervision for this offence. Finally, the Crown submits that C.R. be sentenced to 30 days’ time served for the s. 145(5)(b) offence, committed when she was an adult.

THE POSITION OF THE YOUNG PERSON

[102] C.R. submits that the presumption of diminished moral blameworthiness or culpability to which she is entitled under the YCJA has not been rebutted and that the Crown’s application to have her sentenced as an adult for being an accessory after the fact to murder should fail at stage one of the s. 72(1) YCJA analysis.

[103] C.R. submits that she had just turned 16 years of age as of August 8, 2018, and that she was an adolescent exhibiting the behaviour and living the lifestyle of an adolescent.

[104] C.R. notes that Dr. Klassen, at page 15 of his report, opined that she appeared to have regressed in terms of her adolescent development beginning in late 2016, when she was approximately 14 years, six months old. This regression continued until after the events of August 8, 2018, and included behaviour such as friendships and/or relationships with older partners who were troubled and abusive, significant substance misuse, absence from school and from the workforce, repeatedly allowing herself to be a victim of intimate partner violence and an inability or unwillingness to disclose the abuse she suffered or to seek help.

[105] C.R. submits that her behaviour in the period leading up to and following August 8, 2018, is more consistent with immature, adolescent rebellion than it is with the maturity and capacity for independent judgment of an adult.

[106] C.R. submits that in the period immediately following August 8, 2018, she was extremely vulnerable to the influences of the two co-accused and that her offending behaviour - in the context of being an accessory after the fact to murder - was impulsive and partially due to fear of her co-accused who had just murdered and dismembered H.S-A. in the most violent and horrific fashion imaginable.

[107] C.R. submits that the overwhelming evidence of her significant personal growth since 2018, and in particular while incarcerated over the last 19.5 months, is indicative of a complete lack of maturity and adult judgment at the relevant time.

[108] C.R. submits that a holistic assessment of all facts and circumstances should fail to satisfy this court that, at the time of the offence, when she was just 16 years old, she demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that the presumption of diminished moral blameworthiness has been rebutted.

[109] C.R. further submits that she is a youthful, first offender and that a youth sentence imposed in accordance with the purposes and principles in s. 3(1)(b)(ii) and s. 38 of the YCJA, and in recognition of the principle of restraint, would be of sufficient length to hold her accountable for being an accessory after the fact to murder.

[110] C.R. submits that adult sentences for accessory after the fact to murder vary widely and that the Crown’s suggestion that she should receive an adult sentence of seven years is, on the facts of this case, simply unreasonable. C.R. suggests that, if sentenced as an adult for being an accessory after the fact to murder, the proper sentencing range would be 18 – 30 months incarceration. Assuming that to be the case, C.R. suggests that a youth sentence of sufficient length could easily be imposed to hold her accountable.

[111] C.R. submits that she has now served 19.5 months of pre-sentence custody. This should be considered the equivalent of 29 months custody on the accountability analysis, according to C.R.. C.R. notes that the maximum youth sentence available to this court is two years custody and one year supervision, all of which can be in addition to the 19 months of pre-sentence custody she has served.

[112] Given what C.R. suggests is the appropriate range for an adult sentence for being an accessory after the fact to murder, this illustrates that a youth sentence would be of sufficient length to hold her accountable for her offending behaviour such that the Crown has failed at the second stage of the s. 72(1) YCJA analysis, requiring this court to sentence her as a young person, according to C.R..

[113] In addressing the appropriate youth sentence for the offence of being an accessory after the fact to murder and for the threatening charge, C.R. points to her very positive PSR, Dr. Klassen’s positive psychological report, her 62 Certificates of Completion that she achieved while in custody, 16 very positive letters of reference filed on this hearing, and an extremely positive and complimentary letter from the Rehabilitation Officer at the Kenora Jail. C.R. further submits that she has been accepted for substance abuse treatment at the Dilico Anishinabek Adult Treatment Centre in Thunder Bay upon release.

[114] Simply put, according to C.R., the 19.5 months of pre-sentence custody she has served has been sufficient to reflect the seriousness of her offending behaviour, and lengthy enough to allow for rehabilitation to have occurred.

[115] C.R. submits that a youth sentence of three years’ probation on terms recommended by Dr. Klassen and the PSR author, in addition to time served, properly reflects the principle of restraint and is appropriate in the circumstances.

[116] Finally, C.R. submits that time served is an appropriate sentence for the January 23, 2023, s. 145(5)(b) breach conviction.

ANALYSIS

Has the Presumption of Diminished Moral Blameworthiness been Rebutted?

[117] In D.B., the Supreme Court of Canada confirmed that the presumption of diminished moral blameworthiness or culpability to which young persons are entitled is a principal of fundamental justice, founded on the premise that a young person has heightened vulnerability, less maturity and a reduced capacity for moral judgment.

[118] On this application for an adult sentence, s. 72(1)(a) of the YCJA places the onus on the Crown to satisfy me that the presumption has been rebutted. This onus is neither proof beyond a reasonable doubt nor proof on a balance of probabilities. The standard is one of satisfaction after a careful, holistic consideration by the court of all the relevant factors. The Crown must satisfy the court that, at the time of the offence, the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for judgment of an adult such that an adult sentence and adult sentencing principles should apply: M.W. at para. 98; S.B. at para. 60.

The Relevant Factors

The Seriousness and Circumstances of the Offence

[119] The offence of being an accessory after the fact to murder is an extremely serious offence, potentially attracting a sentence of life imprisonment. I accept the submission of the Crown that C.R.’s commission of this offence is on the more serious end of the spectrum.

[120] C.R. was angry at H.S-A. in August 2018, believing him to be a “rat”. She has pled guilty to threatening to cause him bodily harm on August 8, 2018. She was aware that B.L., also angry at H.S-A., was luring him to 82 Trist Road on August 8, 2018, with the intention of assaulting him. From the contents of her November 23, 2022, statement to police, it appears that C.R. was also generally aware at some time prior to August 8, 2018, that B.L. and S.P. had been discussing murdering H.S-A..

[121] C.R. was present, albeit upstairs, in the house at the time of the murder. She heard the victim screaming and begging for his life. According to one of her statements to the police, she also became aware the next morning that the victim’s body had been gruesomely dismembered.

[122] C.R.’s DNA was found on three murder weapons – on the grips of two baseball bats and on the handle of a hatchet. However, the Agreed Statement of Facts stipulates that “DNA transference is a reasonable explanation for how [her] DNA got onto [two of] the items. On the third, DNA transference could have occurred”. Given this stipulation, I do not take this fact into account in determining if the presumption of diminished moral blameworthiness has been rebutted.

[123] During the period following the murder, knowing the B.L. and S.P. had murdered and dismembered the victim, C.R., just beyond her 16th birthday at the time, repeatedly lied to investigators. C.R. has acknowledged that the “predominant purpose in lying to the police was…to help B.L. and S.P.” avoid culpability for the murder. It is also apparent from the consistency of their respective statements to the police that at some point in time immediately following August 8, 2018, C.R., S.P. and B.L. colluded regarding what each of them would tell the police when questioned.

[124] As noted by Watt J. in Wisdom at para. 27, the offence of being an accessory after the fact to a crime constitutes an interference with the administration of justice, with the accessory facilitating the principal offenders’ escape from detection and/or punishment. The accessory interferes with and stifles the investigation of the crime and the detection of offenders.

[125] This is precisely what C.R. did in the period following the murder of H.S-A.. Her ongoing deceit prolonged this investigation for six years. During this time, the murderers of H.S-A. remained free, and his family was left to suffer and grieve without a complete answer as to what had happened to their loved one and why. Had C.R. been truthful with the police, this investigation could potentially have been concluded within weeks or months.

[126] However, the seriousness of the offence is one of several factors to be considered in determining if the presumption of diminished moral blameworthiness has been rebutted. This factor is relevant to the analysis only to the extent that it may assist in determining the level of moral judgment, sophistication and maturity demonstrated by the young person in the planning and implementation of the offence and the young person’s role in carrying out the offence.

[127] I accept the submission that C.R. was, to a limited extent, acting out of fear of her co-accused, particularly B.L.. He had been abusive to her during their relationship and C.R. was obviously aware after August 8, 2018, that he and S.P. were capable of extreme violence. I further note that Dr. Klassen diagnosed C.R. as, during that period of time, suffering from an adjustment disorder with mixed depression and anxiety, “with an other specified trauma-or-stressor-related disorder” short of PTSD, as well as avoidant and dependent personality traits.

[128] It is difficult to understand exactly what C.R.’s motivation was for repeatedly lying to the police. As noted, there was collusion with, and some fear of, her co-accused. She was also in a brief, romantic relationship with B.L. at the time of the offence. To the extent that her actions may have been prompted by fear of her co-accused and/or her affections for B.L., this is, in my view, indicative of immaturity and diminished moral judgment, characteristic of adolescents.

[129] On the other hand, C.R. displayed an incomprehensible callousness and a complete lack of empathy when, one week after the murder, she responded to a text message from her mother stating, in part, “I really don’t have any morals to give a fuck about that guy”, referring to the 28-year-old developmentally-delayed H.S-A., whom she knew had just been brutally murdered and dismembered. Further, as recently as January 2023, C.R. was asking B.L. to “do whatever he had to do to get her out of this.”

[130] In my view, the particular circumstances of C.R.’s admitted conduct in relation to being an accessory after the fact to B.L. and S.P.’s murder of H.S-A. militates in favour of a finding that C.R, in August 2018, demonstrated the level of maturity and moral sophistication of an adult. However, this is only one of several factors to be considered in the analysis.

The Circumstances of the Young Person

[131] C.R. turned 16 years of age 13 days prior to the August 8, 2018 murder of H.S-A.. She had no prior experience with the criminal justice system, nor, to my knowledge, had any of her family members. C.R. had the benefit of a supportive family and is of average intelligence. C.R. was an average student who did not display any behavioral issues at home or at school as a young teenager. She also excelled in sports, particularly hockey.

[132] However, for reasons set out above, C.R.’s hockey career abruptly ended in Grade 9 and she went into an extremely unfortunate and tragic “tailspin” in all aspects of her life. At a vulnerable age, she quickly became enmeshed with the older drug/criminal subculture in Dryden, abused numerous types of illicit drugs on a regular basis, dropped out of school and entered successive short-term relationships with abusive partners. From these facts, Dr. Klassen diagnosed C.R. with an adjustment disorder with mixed depression and anxiety, and it is reasonable to infer that C.R. was vulnerable to the influence of others, in particular, her new anti-social and generally older peer group. In my view, her vulnerability – in the context of this older and negative peer group – is compounded by her avoidant and dependent personality traits, as diagnosed by Dr. Klassen.

[133] However, Dr. Klassen declined to opine on whether C.R. “has a lasting tolerance for social deviance, or whether her participation in social deviance” was a result of the multiple losses and alienation she suffered from beginning in late 2016. Dr. Klassen added that C.R.’s general behaviour at the relevant time (not her offending behaviour) is “quite characteristic of adolescence” and sometimes “reflects underlying anger in the context of a sense of loss of control over one’s life, and loss of self-efficacy.” Dr. Klassen further opined that C.R. presented a low risk for [future] violent behaviour.” This latter opinion, being a prediction of future conduct, is irrelevant to the stage one analysis.

[134] At the time of her offending behaviour, C.R. was living primarily with her mother and was not employed or in school. I conclude that she was totally dependent on her parents, financially and otherwise.

[135] The circumstances of C.R. in the period prior to and at the time of her offending behaviour, together with the insights and opinions of Dr. Klassen, suggest to me that this 16-year-old young person was, at the time of the offence, a relatively immature adolescent, functioning with a reduced capacity for moral judgment. In my view, this factor weighs against a finding that the presumption of reduced moral culpability has been rebutted.

Conduct After the Offence

[136] C.R.’s recent acceptance of responsibility and expressions of remorse are far removed from her offending behaviour, the bulk of which occurred in August and the fall of 2018. Further, her expressions of remorse and acceptance of responsibility are inconsistent with her January 2023 communications with B.L.. C.R., more than four years after the murder of H.S-A., and several months after being arrested and charged with first degree murder, directed B.L. to do whatever he could to get her out this situation, or words to that effect. These are not the words of an empathetic, remorseful offender. For the purposes of the stage one analysis, I place little weight on C.R.’s recent expressions of remorse and acceptance of responsibility.

[137] Also to be considered in the context of her conduct between 2016 and 2022, and her very serious offending behaviour in 2018, is what C.R. has accomplished while incarcerated over the last 18 months, as well as the very high regard in which she is held by many people, including former employers, the Rehabilitation Officer, and the Addiction Counsellor at the Kenora Jail. The details of this have been set out above.

[138] At stage one of the analysis, the question is how this may be relevant to the issue of whether the presumption of diminished moral blameworthiness has been rebutted. C.R. submits that her recent accomplishments are indicative of a lack of maturity and an absence of adult-like judgment at the time of her offending behaviour.

[139] This question was addressed by the Court of Appeal for Ontario in M.W., a case involving three 16 year olds charged with first degree murder for the execution-style murder of another 16 year old and in which the youth court judge granted a Crown application to have the young persons sentenced as adults. For various reasons, the Court of Appeal set aside the adult sentences and proceeded to sentence the appellants de novo.

[140] In addressing the first stage of the two-part s. 72(1) test, the court began its analysis at para. 97 by noting that “the focus must necessarily be on the issue of maturity.” Both young persons had done very well while in custody after the offence. At para. 130, the Court stated the following about one of the appellants:

The contrast between TF at the time of the offence and TF at the time he was sentenced demonstrates two things. First, his evolving maturity while in the provincial system highlights the lesser degree of TF’s maturity in 2010 [at the time of the murder]. Second, TF has demonstrated that he is motivated to learn, is open and amenable to treatment, and is capable of developing leadership skills when placed in an environment with customized programming and well-managed support. [Emphasis added.]

[141] In Chol, the Court of Appeal for British Columbia, at para. 54, referred to and adopted this passage from M.W.:

In my view, post offence behaviour is relevant to assessing maturity and moral capacity. Significant progress and growth can be indicative of immaturity at the time of the offence, as was the case in W.(M.).

[142] While I accept that, in some cases, post offence growth and evolving maturity can be indicative of a previous reduced maturity, in the circumstances of this case, I am not persuaded that C.R.’s recent achievements inform the analysis as to her level of maturity at the time of the offending behaviour.

[143] Essentially, all of C.R.’s achievements have occurred only after she was charged with first degree murder and incarcerated in the fall of 2022, and after the Crown had served notice of intent to seek an adult sentence. In the four years between the fall of 2018 and the fall of 2022, C.R. did not further her education or address her drug abuse issues. I acknowledge that she was employed at a variety of “entry level” jobs between 2018 and 2022 and that she was well regarded by her employers.

[144] C.R. is to be commended for her long and very impressive list of recent achievements. However, in my view, this aspect of her post-offence conduct should be given little weight in the stage one analysis.

Conclusion s. 72(1)(a) YCJA

[145] The assessment at stage one of the s. 72(1) YCJA test is a case and fact dependent exercise in which no one factor is determinative and in which some factors may weigh both for and against the presumption being rebutted. After considering all the factors, I must decide whether the Crown has satisfied me that, at the time of the offence, the evidence supports a finding that C.R. demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to her.

[146] For the following reasons, I am not so satisfied.

[147] C.R. was just 16 years old in August 2018. She was living with and totally dependent on her mother and, indirectly her father. She was neither employed nor in school. She was suffering from an adjustment disorder with mixed depression and anxiety, and was vulnerable to the influence of others and had gravitated to an extremely negative and older peer group. She was abusing a variety of illicit drugs at a vulnerable age and stage of development. At that time, C.R. had no previous involvement with the criminal justice system, perhaps only because of good luck.

[148] I am cognizant of the fact that a young person’s emotional and mental health should not overwhelm the analysis at the first stage of the test. However, a young person’s emotional and mental health is nonetheless relevant to this analysis, particularly when it informs the assessment of the young person’s level of maturity at the time of the offending behaviour, as I believe it does in this case.

[149] I place significant weight on the findings of Dr. Klassen, an experienced and well-respected forensic psychiatrist. In my view, Dr. Klassen’s report is internally consistent and his opinions and conclusions about C.R.’s level of maturity in and around 2018, and accord with objective common sense.

[150] Dr. Klassen linked C.R.’s very negative reaction to the “multiple losses” she experienced in late 2016 to her adolescent level of maturity, going so far as to suggest that “C.R. appears to have regressed in terms of her adolescent development” in the period following those losses. Dr. Klassen also observed that C.R.’s pattern of behaviour between 2016 and 2018 was “quite characteristic of adolescence” and possibly reflective of “underlying anger in the context of a sense of loss of control over one’s life, and loss of self-efficacy.”

[151] As I understand Dr. Klassen’s reasoning, C.R. was an immature adolescent when her “world fell apart” in 2015/2016. As a result, between 2016 and 2018, up to and including the period of offending behaviour, she was coping very poorly with the dramatic changes in her life, causing her to react petulantly and negatively and leading to very poor lifestyle choices.

[152] There is nothing in Dr. Klassen’s very comprehensive report to suggest that, in 2018, C.R. demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult. On the contrary, Dr. Klassen’s report suggests to me that C.R., at the relevant time, due to her age and other prominent issues in her life, had a heightened vulnerability, less maturity and a reduced capacity for moral judgment, the very characteristics which entitle a young person to the presumption of diminished moral blameworthiness.

[153] I appreciate that Dr. Klassen’s opinions are arguably inconsistent with C.R.’s prolonged dishonesty when interacting with experienced police investigators in the context of a horrific murder, and with her callousness and complete lack of empathy in the period following the August 8, 2018, murder of H.S-A.. However, this was a very “close call” and the seriousness and circumstances of the offence cannot be given inordinate weight in the analysis.

[154] Having carefully considered the factors which I find to be relevant to this issue, I am simply not satisfied that C.R., in August of 2018 and following, demonstrated the level of maturity, moral sophistication and capacity for judgment of an adult such that an adult sentence and adult principles of sentencing should apply to her for the offence of being an accessory after the fact to murder. The Crown’s application therefore fails at the first stage of the s. 72(1) YCJA test.

[155] Pursuant to sections 72(1.1) and 73(2) of the YCJA, I order that C.R. is not liable to an adult sentence for the offence of being an accessory after the fact to murder contrary to s. 240 of the Criminal Code. A youth sentence shall be imposed on her for this offence and for the offence of threatening to cause bodily harm to H.S-A. on August 8, 2018, contrary to s. 264.1(1)(a) of the Criminal Code.

The Appropriate Youth Sentence

Legal Parameters

[156] Section 240 of the Criminal Code states that a person convicted of being an accessory after the fact to murder is liable to imprisonment for life. As a result, pursuant to s. 42(2)(n) of the YCJA, the maximum youth sentence which can be imposed on C.R. is a custody and supervision order not to exceed three years.

[157] As of the date of this sentencing, C.R. will have served 580 days, or approximately 19.5 months, of pre-sentence custody. Pursuant to s. 38(3)(d) of the YCJA, in determining a youth sentence, I am required to consider pre-sentence custody. However, my treatment of the pre-sentence custody is discretionary, and I am not required to deduct pre-sentence custody when deciding on an appropriate sentence: M.W. at para. 78.

Positions of Crown and Defence

The Crown

[158] As noted above, on this application the Crown was seeking an adult sentence of seven years custody, less credit for pre-sentence custody granted on a 1.5 to 1 basis, for the offence of being an accessory after the fact to murder. Had the Crown been successful, this would have resulted in an adult custodial sentence of approximately 4.5 years going forward for that offence.

[159] C.R. has also pled guilty, as a young person, to the offence of threatening to cause bodily harm to H.S-A., contrary to s. 264.1(1)(a) of the Criminal Code. The Crown submits that C.R. should be sentenced to 30 days custody and 15 days of supervision for this offence.

[160] C.R. has also pled guilty, as an adult, to the offence of breaching the non-communication terms of her detention order, contrary to s. 145(5)(b) of the Code. The Crown submits that she should receive a sentence of 30 days time served for this offence.

The Defence

[161] C.R. submits that the lengthy period of pre-sentence custody she has served should be accounted for in the exercise of my discretion when determining the appropriate youth sentence for her on the s. 240 and s. 264.1(1)(a) offences. C.R. suggests that her pre-sentence custody represents a meaningful consequence for her conduct, that it is lengthy enough to reflect the seriousness of her offending behaviour and that it has accomplished her rehabilitation. C.R. notes that she has taken every course and all programming available to her, that she has upgraded and essentially completed her high school education, that she has a realistic plan for post-secondary education and/or employment upon release and that she has applied for and been accepted into a residential substance abuse treatment program.

[162] C.R. submits that she is a youthful first offender and that specific deterrence and rehabilitation have been accomplished as a result of her lengthy pre-sentence custody, such that a further period of incarceration is not required. C.R. submits that a youth sentence of three years probation, concurrent on the s. 240 and s. 264.1(1)(a) offences, on terms recommended by the PSR and Dr. Klassen, in addition to time served, properly reflects the principle of restraint and holds her accountable for her conduct.

[163] C.R. submits that time served is an appropriate adult sentence for the January 23, 2023, s. 145(5)(b) offence.

Case Law

[164] Counsel have advised me that they were unable to locate any cases in which a young person has been convicted of being an accessory after the fact to murder. However, the adult sentencing decisions to which I have been referred suffice to illustrate the gravity of the offence of being an accessory after the fact to murder and the broad range of sentences imposed.

[165] In Wisdom, at para. 32, Watt J. provided a non-exhaustive list of factors relevant to the determination of an appropriate sentence for the offence of being an accessory after the fact to murder:

• The nature, extent and duration of the accessory’s involvement.

• The age and experience of the accessory.

• The nature, extent and duration of the relationship, if any, between the accessory and the relevant principle.

• The presence or absence of any coercion or threat to the accessory to obtain the accessory’s participation.

• The nature of the accessory’s assistance.

• The antecedents, present status and realistic prospects of the accessory.

[166] C.R. has provided me with the following authorities for my consideration:

[167] R. v. Hardy-Fox, 2022 ONSC 2786 – The accused, an Indigenous man with no prior record, acted as the driver of a vehicle in a kidnapping and execution-style murder. The accused pled guilty to kidnapping and being an accessory after the fact to murder and was sentenced to three years and eight months imprisonment on the kidnapping charge and to two years concurrent on the s. 240 charge.

[168] R. v. Crawford, 2018 ONSC 7582 – The accused, 30 years old with a lengthy criminal record, pled guilty to being an accessory after the fact to murder. He received, cleaned and concealed the murder weapon- a hammer. The sentencing judge identified denunciation and specific deterrence as the primary sentencing objectives, and sentenced the accused to four years custody, a sentence he described as “harsh” but “not crushing”.

[169] R. v. John, 2011 ONSC 3313 – The accused, 24 years old and with a serious prior record, was found guilty of obstruction of justice for assisting a co-accused (who was convicted of second degree murder) to avoid apprehension and prosecution. The sentencing judge noted the “widely divergent range” of sentences for this offence, which he found was not unexpected given the vastly different circumstances of the offences and the personal characteristics of the offenders. The accused was sentenced to three years imprisonment.

[170] R. v. D. (J.J.), 2014 BCPC 412 – The accused, 23 years old and without a youth or adult record, was 17 years old at the time of the offence but was sentenced as an adult for being an accessory after the fact to murder. The accused loaned his father’s rifle to friends, not knowing that it would be used to kill someone. The accused later retook possession of the rifle and became aware that it had been used in a homicide. The accused later misled police. The accused received a conditional sentence of two years less a day.

[171] The Crown has referred me to the following authorities:

[172] R. v. Barrette, [1983] A.J. No. 71, 1983 ABCA 267 (C.A.) – The Court of Appeal for Alberta dismissed the sentence appeal of an accused who was sentenced to seven years imprisonment, concurrent, on two counts of being an accessory after the fact to murder. The appellant, who was present in the residence where a double murder occurred, removed fingerprints and shared in the spoils of a related theft and fled with his co-accused, was described by the court as “very close to being an accomplice.”

[173] R. v. Nolan, [2001] B.C.J. No. 1098, 2001 BCCA 254 – This was an appeal by the accused from a sentence of four years consecutive on each of one count of aggravated assault and one count of accessory after the fact to murder. The appellant, described as “young” and with no prior record, assisted in dismembering the murder victim. The court described the accused’s offending behaviour as “one of the more serious of its type and is deserving of punishment at the high end of the range.” In allowing the sentence appeal on the accessory conviction, the court found that the trial judge did not give sufficient weight to the appellant’s 22 months of pre-trial custody, and reduced the four-year sentence to 30 months “to reflect a sentence of 5 to 6 years.”

[174] R. v. Wisdom, [1992] O.J. No. 3110, 1992 CarswellOnt 1757 – The accused, 20 years old at the time of the offence and 23 years old at the time of sentencing, was involved in the drug trade, and pled guilty to being an accessory after the fact to murder. His offending behaviour included recruiting the killer, removal of the victim’s body and cleaning up the murder scene. Watt J. found that it was “relevant to assess the degree of his participation, the level of his culpability, in order to propound a fit sentence” and concluded that the accused’s “participation as accessory after the fact was considerable.” The accused was sentenced to five years imprisonment.

[175] R. v. Hodgkin, 2023 ONSC 4523 – The accused, a 53-year-old Indigenous man with “continuous involvement in the criminal justice system for the past 38 years”, pled guilty to being an accessory after the fact to murder. The accused disposed of a barrel knowing that it contained the body of his murdered friend. Tranquilli J., citing Wisdom, held that general deterrence was the primary sentencing objective for this offence and found that “although there are unique outliers at the lower and upper ends of the range, the cases generally support a range of…3 to 5 years for roughly similar offences committed by roughly similar offenders.” The court imposed a sentence of four and one-half years imprisonment.

[176] R. v. Matheson, [2015] N.S.J. No. 52, 2015 NSSC 42 – The accused, 49 years old and with a lengthy criminal record, pled guilty to being an accessory after the fact to murder. The accused initially refused to assist in the disposal of the body of the victim but then relented out of fear of the killer and drove the vehicle which was used to dispose of the body. The court accepted a joint submission and sentenced the accused to 3.5 years imprisonment.

[177] R. v. Gowen, [2011] N.S.J. No. 388, 2011 NSSC 259 – The accused, 21 years old and with one prior conviction, pled guilty to being an accessory after the fact to murder. The accused attempted to provide an alibi for his brother in relation to a second degree murder. The accused was sentenced to three years imprisonment.

[178] R. v. Tutin, [2004] N.W.T.J. No. 80, 2004 NWTSC 20 – The 44-year-old accused, who had a lengthy criminal record, pled guilty to being an accessory after the fact to murder. The accused did not participate in the murder, tried to stop it, and was threatened. He then assisted in the disposal of the body of the victim and provided false information to the police. The accused was sentenced to 3.5 years imprisonment.

[179] As noted, none of these cases address a youth sentence for being an accessory after the fact to murder. What is apparent from this review of the case law regarding adult offenders, as noted in R. v. John, is that there is a widely divergent range of sentences for this offence due to the very different circumstances of the offending behaviour and the personal circumstances of the offenders. I agree with Tranquilli J.’s conclusion in Hodgkin that there are unique outliers at both ends of the range with the cases generally supporting a range of 3 to 5 years for “roughly similar offences committed by roughly similar offenders.” The cases cited also confirm that the primary sentencing objectives to be applied to adults in relation to this offence are denunciation and general deterrence.

[180] In the present case, these general principles must be adapted to determine an appropriate sentence under the YCJA, which provides that the maximum sentence for being an accessory after the fact to murder is two years custody, followed by one year supervision.

YCJA Declaration of Principle

[181] The YCJA, s. 3(1)(a)(i)(ii) and (iii) and (b) states the following:

3(1) Policy for Canada with respect to young persons

The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time;

[182] Section 38(1) of the YCJA sets out the purposes of youth sentences;

38(1) Purpose

The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

[183] As noted above at para. 85, the Court of Appeal for Manitoba in H.C.T., at paras. 24 and 26, commented on the purpose of accountability when imposing a youth sentence, which I will reproduce again:

Accountability reflects the moral culpability of the offender. Section 3(1)(b)(iii) [of the YCJA] requires the court to consider the principle that the accountability of adolescent offenders is limited in comparison to that of adults, given their lack of maturity. Therefore, when determining accountability, young people are entitled to a presumption of diminished moral blameworthiness or culpability. [Citation omitted.]

For a sentence to hold a young person accountable, it must achieve two objectives: it must be long enough to reflect the seriousness of the offence and the offender’s role in it; and it also must be long enough to provide reasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society. Reasonable assurance… means a reasonable prediction of future behaviour based on an evaluation of all the evidence. If the sentencing judge finds that a youth sentence would not be long enough to achieve both of these goals, then an adult sentence must be imposed. [Citations omitted.]

[184] Sections 38(2) and (3) of the YCJA, respectively, set out the sentencing principles to be applied and the factors to be considered when sentencing a young person:

38(2) Sentencing principles

A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

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

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons with particular attention to the circumstances of aboriginal young persons;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community;

(e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if

(i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1),

(ii) the young person will reasonably be able to comply with the condition, and

(iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

38(3) Factors to be considered

In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[185] Subject to the sentencing principle that a youth sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence, a youth sentence may, at the discretion of the youth justice court, address the sentencing objectives of denunciation and specific deterrence: YCJA s. 38(2)(f).

[186] The purpose of a youth sentence is to hold the young person accountable for the offence. To do so, a youth sentence must be long enough to reflect the seriousness of the offence and to provide reasonable assurance of the young person’s rehabilitation. However, accountability reflects the moral culpability or blameworthiness of the offender and, pursuant to s. 3(1)(b)(ii) of the YCJA, young persons are entitled to a presumption of diminished moral blameworthiness.

[187] When analyzing the factors to be considered in determining a youth sentence, as set out in s. 38(3) of the YCJA, in conjunction with the factors relevant to the determination of an appropriate sentence for the offence of being an accessory after the fact to murder noted by Watt J. at para. 32 of Wisdom, I make the following observations:

• C.R. was aware that H.S-A. was being lured to 82 Trist Rd. on August 8, 2018, so that B.L. and S.P. could assault him. She had threatened to cause him bodily harm earlier that day, suggesting an intention to be involved in the assault.

• C.R. was present in the residence at the time of the murder and, as a result of hearing H.S-A. screaming and begging for his life, was aware that, at a minimum, serious bodily harm was being inflicted on him.

• In the day immediately following the murder and for a lengthy period of time thereafter, C.R. repeatedly lied to the police, in collusion with the two individuals who murdered H.S-A., for the purpose of helping these individuals avoid culpability for the murder. Her offending behaviour significantly lengthened the investigation and exacerbated the grief and suffering of the victim’s family.

• C.R. was in a brief romantic, but abusive, relationship with B.L. at the time of the murder and, to a very limited extent, acted out of fear of him.

• C.R. was 16 years old at the time and had no prior involvement with the police or the justice system.

• C.R. enjoys the continued and full support of immediate and extended family and past employers.

• The PSR was very positive and C.R. is spoken of very favourably by both the Rehabilitation Officer and the Addiction Counsellor at the Kenora District Jail where she has been incarcerated since November 2022.

• C.R. has completed virtually every program available to her while in pre-sentence custody, has completed her high school education, has been accepted for residential substance abuse counselling upon release, and has excellent prospects for rehabilitation.

• Dr. Klassen’s s. 34 report suggests that C.R. is a low risk for future violent behaviour.

• As of the date of this sentencing, C.R. will have served 580 days, or approximately 19.5 months of pre-sentence custody. Section 38(3)(d) of the YCJA requires me to take this pre-sentence custody into account in determining the appropriate youth sentence for C.R. and I see no principled reason not to do so.

• I find C.R.’s expressions of remorse to be self-serving and insincere and a neutral factor on sentencing.

[188] The fact that C.R.’s DNA was found on three of the murder weapons is potentially an aggravating fact on sentencing. However, the Agreed Statement of Facts stipulates that this may have been the result of DNA transference. This fact has not been proven beyond a reasonable doubt and I therefore do not consider it to be an aggravating fact on sentencing.

[189] The offence of being an accessory after the fact to murder is a very serious offence which constitutes an interference with the administration of justice and for which an adult is liable for a sentence of life imprisonment. Given the seriousness of the offence and circumstances of C.R.’s offending behaviour, and the observations above, I find that denunciation is a prominent sentencing objective and that specific deterrence is not required. The objective of denunciation must be applied in the context of C.R. being a young person and therefore entitled to a presumption of diminished moral blameworthiness.

[190] The sentencing objective of denunciation mandates that a sentence should also communicate society’s condemnation of the offender’s conduct. A sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law: see R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327.

[191] As a youthful first offender, C.R. is also entitled to the benefit of the principle of restraint. However, the purpose of sentencing under the YCJA is to hold a young person accountable for their conduct and it is principle of sentencing under the YCJA that a sentence be proportionate to the seriousness of the offence.

[192] C.R. has served 19.5 months of pre-sentence custody. Absent such a significant period of pre-sentence custody, I am of the view that the facts and circumstances of this very tragic case would merit the maximum youth sentence available.

[193] C.R. pls stand. C.R., I sentence you as follows:

1. On count 1 of the youth court indictment, for the offence of being an accessory after the fact to the murder of H.S-A. contrary to s. 240 of the Criminal Code, I sentence C.R. to a period of secure custody of 18 months to be followed by 9 months supervision on the conditions set out in s. 97(1) of the YCJA;

2. On count 2 of the youth court indictment, for the offence of threatening to cause bodily harm to H.S-A. contrary to s. 264.1(1)(a) of the Criminal Code, I sentence C.R. to 30 days secure custody to be followed by 15 days supervision, to run concurrently with the sentence on count 1 on the youth court indictment;

3. On count 1 on the adult indictment, for the offence of breaching the non-communication terms of a detention order, contrary to s. 145(5)(b) of the Criminal Code, I sentence C.R. to 30 days time served.

[194] A DNA order shall issue in relation to all convictions.

[195] Finally, I recommend that the Provincial Director include the recommendations of the PSR and Dr. Klassen’s s. 34 report as terms of the supervision order and I direct that both be attached to the warrant of committal.

“originally signed by”

The Hon. Mr. Justice J.S. Fregeau

Released: June 11, 2024

COURT FILE NO.: YC-23-97, CR-23-98

DATE: 2024-06-11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King

Crown

• and –

C.R.

Accused

REASONS FOR SENTENCE

Fregeau J.

Released: June 11, 2024