COURT FILE NO.: YC-23-207-00
DATE: 2024-09-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
L. Tansey, for the Crown
- and -
A.M.
G. Joseph, for the Accused
Accused
HEARD: May 31, 2024,
at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING
UNDER S. 110 OF THE YOUTH CRIMINAL JUSTICE ACT
Reasons For Decision
OVERVIEW:
[1] In the early hours of the morning of April 30, 2021, Liam Slipperjack sustained catastrophic injuries to his brain. Mr. Slipperjack had just turned 18 years old a week before. He succumbed to his injuries and died on May 2nd, 2021.
[2] Liam Slipperjack’s injuries and death were the direct result of an unprovoked and vicious beating he suffered at the hands of two people he believed to be his friends, A.M., a young person within the meaning of the Youth Criminal Justice Act (YCJA), and Desmond Keewaykapow.
[3] Both A.M. and Mr. Keewaykapow were charged with second degree murder on Liam Slipperjack, contrary to s. 235(1) of the Criminal Code. A.M. was 17 years old and 11 months at the time of the offence, while Mr. Keewaykapow was 18 years and 3 months old.
[4] On February 6, 2023, Mr. Keewaykapow pled guilty to the lesser and included offence of the unlawful killing of Liam Slipperjack, thereby committing manslaughter contrary to s. 234 of the Criminal Code. Mr. Keewaykapow was sentenced in the Ontario Court of Justice on December 15, 2023, to five and a half years custody plus a period of probation and other ancillary orders.
[5] On January 22, 2024, A.M. pled guilty to manslaughter, contrary to s. 234 of the Criminal Code. Pursuant to s. 42(2)(o) of the YCJA, the maximum sentence for a young person who commits manslaughter is three years. A.M. has been incarcerated since his arrest on May 31, 2021. Having spent 3 years and 125 days in a youth facility (as of the date of delivery of this decision), if given credit for time served, he has exceeded the maximum sentence that may be imposed by the YCJA.
[6] The Crown says this is still not enough to address the harm done and to properly hold A.M. accountable for his role in Mr. Slipperjack’s death. In this decision I am asked to determine whether A.M. should be sentenced as an adult or a youth, and to determine a just and fit sentence.
[7] The Crown argues that the gravity of the offence, combined with A.M.’s decision-making during the attack, warrant an adult sentence. The Crown position is that only an adult sentence can sufficiently address the harm caused and sufficiently give effect to the applicable sentencing principles. The Crown brings this application pursuant to s. 64(1) of the YCJA for an order that A.M. is liable to be sentenced as an adult. A person convicted of the offence of manslaughter is liable to a maximum adult sentence of imprisonment for life. The Crown argues that a just and fit sentence in this case is 7 years imprisonment.
[8] A.M. opposes the Crown’s request. He argues that the Crown has not met its onus of demonstrating that he is not entitled to the benefit of the principle of diminished moral blameworthiness on which the YCJA is based. He argues that rehabilitation and reintegration should be the primary considerations in sentencing for this serious crime. A.M.’s counsel urges me to delay imposing sentence so that A.M. is kept in custody temporarily, despite having served the maximum sentence permissible under the YCJA for manslaughter, so that an appropriate release plan and probation terms may be developed to ensure his success upon release.
[9] For the reasons that follow I find:
a. A.M. shall be sentenced as a youth.
b. At the request of counsel for the Accused, sentencing shall be delayed for a period of no longer than 60 days to allow for an appropriate release plan to be developed for A.M..
THE FACTS
Circumstances of the Offence:
[10] An Agreed Statement of Facts was filed on the date A.M. entered his plea, as well as video (CCTV) footage depicting the attack.
[11] The video reveals a deeply disturbing, and brutal attack on Liam Slipperjack, in which he was chased, and his head was targeted by A.M. and Mr. Keewaykapow, and beat repeatedly. I do not intend to describe every blow in sequence. This was done by the Crown in submissions, is clear from the video, and was described in some considerable detail in the transcript of the Reasons for Sentencing of Scaramuzza J., in R. v. Desmond Keewaykapow, December 15, 2023 (unreported).
[12] I will note the following for the purpose of this decision. The video starts with Mr. Slipperjack being pursued by A.M. and Mr. Keewaykapow near a parking lot in the Limbrick residential complex. Mr. Slipperjack is tackled to the ground and then held down by A.M. while Mr. Keewaykapow approaches and stomps on Mr. Slipperjack’s head. What follows in a space of less than two minutes is a series of sixteen blows delivered to Mr. Slipperjack’s head by both offenders using their fists, feet, and knees.
[13] A.M. delivered nine of these blows, with Mr. Keewaykapow delivering the balance. The two attackers worked in unison delivering the blows to Mr. Slipperjack’s head. A.M. is seen on a couple of occasions pulling a limp Mr. Slipperjack to a seated position and punching him in the head, then releasing Mr. Slipperjack and allowing his head to hit the pavement. Mr. Keewaykapow takes Mr. Slipperjack’s shoes and disposes of them in a garbage bin. Mr. Slipperjack is seen trying to lift himself up from the ground using a parked vehicle for support, but he was unable to. He did not fight back, and at no point is he seen to even attempt to strike or injure either of his attackers in any way. As the beating continued Mr. Slipperjack was clearly unable to defend himself, and seemed unresponsive, but this did not stop A.M. or Mr. Keewaykapow. At one point they left but quickly returned. Mr. Slipperjack was visibly in distress and flailing his arms. A.M. delivered another blow. Neither A.M. nor Mr. Keewaykapow sought medical or other help for a person they have described as a good friend. They simply left him lying there.
[14] At 2:59 a.m., approximately five minutes after the attack began, police responded to a 911 call and found Mr. Slipperjack face down with blood on his face. He was transported to the Thunder Bay Regional Health Sciences Centre where he was diagnosed with severe head trauma requiring surgery to alleviate the swelling on his brain. He did not regain consciousness.
[15] The motive for the attack was retribution. All three young men had been socializing at 821 Limbrick Place. Alcohol was involved. Mr. Slipperjack reportedly held down and struck his girlfriend, causing her nose to bleed. Mr. Keewaykapow and Mr. Slipperjack got into an argument over this. Mr. Slipperjack left the home and was then pursued by A.M. and Mr. Keewaykapow.
Circumstances of the Offender:
[16] Three reports were prepared and referred to by counsel in their arguments on sentencing:
a. Gladue Report dated March 25, 2024.
b. Pre-Sentence Report (PSR), dated April 4, 2024, as required by s. 72(3) of the YCJA and which was prepared by Terri Dimini, A.M.’s probation officer; and
c. Psychological Report and Risk Assessment, dated May 9, 2024, prepared by the Children’s Centre Thunder Bay pursuant to s. 34(2)(b) of the YCJA.
Each of the reports describe, to varying degrees, A.M.’s background, upbringing, history with the criminal justice system, experience while incarcerated for the past three years, and supports required upon release.
[17] A.M. is a young Indigenous man whose life has been profoundly impacted by a history of trauma and loss.
[18] A.M. is a member of the Eabametoong First Nation, which is more commonly referred to as Fort Hope. Eabametoong is a remote community, located 360 kilometers northeast of Thunder Bay, and only accessible by airplane, water, or winter ice roads. The community has a high unemployment rate, widespread poverty, a shortage of suitable housing, and high cost of living. More significantly, solvent abuse and opiate abuse is a significant problem in the community, which despite the efforts of its leaders, continues to suffer from insufficient services to assist community members in addressing these concerns. The crime statistics for the community at one time was of such a concern that they were published in the Toronto Sun, and the community continues to experience issues with crimes such as arson. The community’s youth face high suicide rates, substance abuse, youth gangs, barriers to completing high school education within the community, and a general lack of services that may otherwise be available in larger communities.
[19] The effects of intergenerational trauma because of residential and day schools have been significant on A.M.’s family. His paternal grandfather and his father attended residential schools. His paternal grandfather suffered various forms of abuse, and in turn, he physically abused his children. A.M.’s father (E.M.) would not speak about his residential school experience, but the impact is significant. While A.M.’s parents were in a long-term relationship and had five children together, the relationship was marred with substance abuse, spousal abuse, and periods when E.M. would leave. He has been frequently incarcerated and is not a consistent presence in the lives of his children.
[20] On the maternal side, A.M.’s maternal grandmother (B.O.) attended Indian Day School. B.O. spoke with the Gladue writer about the physical and sexual abuse associated with Day School. She spoke about the physical abuse she endured in her first marriage, and what her oldest children, which include A.M.’s mother (J.O.) witnessed.
[21] A.M. lived in Eabamatoong until he was 12 years old. He describes his early years with some fondness, speaking to various report writers about his memories of participating in cultural and land-based activities, as well as sports. He presented an idyllic picture of a close family, yet objectively, his childhood was far from ideal. J.O. has reported to the PSR writer that both her and E.M. abused substances while living in Eabamatoong and that she was frequently the victim of domestic assaults that her children witnessed. A.M. reports having tried “weed” as early as age 8 or 9 and having used substances on a sporadic basis from the age of 11 years.
[22] Outside of the home, A.M. was bullied by other youth. At a young age he felt the need, for his own safety, to “pick sides” between rival youth gangs within the community. He felt that the protection of this “brotherhood” was vital to his safety within the community.
[23] Unfortunately, at 12 years old A.M. had his first involvement with the criminal justice system, the effect of which significantly impacted both his and his family’s future. He was with a group of youths who broke into the only community centre in Eabamatoong to steal popsicles. One of the youths started a fire and the centre was destroyed. The youths involved, including A.M. were banished from the community. This necessitated the family relocating to Thunder Bay. With no employment or financial resources, the family moved into the Limbrick housing complex, an area known for violent crime and substance abuse. A.M. sees this as a pivotal experience in his life.
[24] After the move to Thunder Bay, A.M.’ parents’ addictions issues escalated significantly. His mother began using crack, cocaine, and suboxone on a regular basis. His father was intoxicated more often. This heightened the domestic abuse concerns, and A.M.’s mother said that his father was also “mean” to the children. The violence and substance abuse within the home has been described as “extreme”. J.O. feels that of all her children, A.M. and his brother took the brunt of their father’s wrath because they often tried to step in to protect their mother. The older siblings, including A.M., assumed a parenting and protective role for the younger, and A.M. had ongoing attendance issues with school.
[25] In addition to the exposure to domestic violence at a young age, shortly after moving to Thunder Bay in 2016, A.M. witnessed a serious altercation in the Limbrick area when his 14-year-old cousin was attacked by a group of young adults, that resulted in his cousin fatally stabbing one of his attackers. A.M. himself was attacked once by a youth wielding a box cutter, and he notes to a report writer that random attacks by older youth against younger are a common occurrence in the area. The PSR writer has concluded that “[w]itnessing this level of violence at such an early age has impacted the youth.”
[26] After the move to Thunder Bay, A.M.’s substance use became a daily occurrence, and his involvement with the criminal justice system continued. At the age of 13 years, he was charged with the robbery of a convenience store. After breaching conditions of his probation by drinking with friends, he served a custodial sentence at an open custody facility. After leaving the facility unlawfully because of concern for his siblings given his parents’ increasing substance abuse, he was charged and placed into a more secure facility for a short time. Upon his release, he was allowed to return to his home community to live with his grandmother. While in the community, at age 15 years, he was charged with assault after two young adults “tried to jump” him. Those charges were dropped. His next charge came in 2020 when he was 17 years old and was charged with the murder of a woman who was intoxicated and threatening him and his younger cousins with a knife. He tried barricading him and his cousins first, but when that did not work and the threat continued, he hit her with a baseball bat. The woman died from her injuries. He was charged with murder and sent back to a secure youth custody facility in Thunder Bay. While on bail, he had a physical altercation with a youth in the Limbrick housing complex, who A.M. says threatened him with a knife. After spending 8 months in custody, the murder charges were withdrawn, as it was determined that he acted in self-defence. A.M. did plead guilty to an assault on his uncle who was also present during the altercation with the woman. I sentenced A.M. following his plea. He was released from custody and had only been out on probation for approximately six weeks before the attack on Mr. Slipperjack.
[27] A.M. has told the various report writers that despite the circumstances of the woman’s death, it had a significant impact on him. He was sober during this incident and recalls it vividly. He reported to the s. 34 assessors that he continues to experience recurrent, intrusive, and distressing memories. The Personality Assessment Inventory (PAI), a measure of mental health and social functioning revealed that he demonstrates moderately high symptoms related to traumatic stress and clinical level mental health difficulties. He suffers flashback and defensive avoidance (described as trying to forget about painful experiences). His elevated scores for alcohol problems were noted by the assessors, with alcohol and anxiety potentially being related as he has tried to cope with the trauma in his life.
[28] This, A.M. has reported to the various report writers, is exactly what happened when he was released from custody in March 2021. Following his release, he was drinking large quantities of alcohol daily, straight from the bottle, and smoking marijuana multiple times a day to cope. A.M. and his family have a history of turning to substance abuse when dealing with trauma and loss. The s. 34 assessors have noted that A.M. suffers PTSD symptoms associated with traumatic events in his past. Alcohol was involved on the night of Liam Slipperjack’s death. A.M. has described himself as “black out drunk” that night and continues to be unable to recall the events of that night. He has described Liam Slipperjack as a “close friend” that he has known since childhood, and a quiet guy who he often spent time with. The s. 34 assessors recount A.M.’s report that he continues to feel sadness over the death of Liam, and that when he learned of what had happened, he wept. While he wished he could recall what happened that night, he recognizes the potential impact those memories could have on him. The PSR writer does conclude that the “…youth carried a lot of guilt over choices that he has made that have resulted in hurting other people.”
[29] A.M. has spent much of his youth incarcerated. He has a history of aggressive and violent behaviours, and but for a period of 6 weeks, he has been incarcerated for the past 4 of his 21 years. The past three years have seen a change in A.M., and he has used his time at the youth facility wisely. Despite a few incidents during his incarceration, for the most part he has done very well with the structure, stability, and access to programming provided as part of his incarceration. He has been noted to have made some significant strides in behaviour and attitude.
[30] All report writers speak to the significant progress he has made during the past three years of incarceration. Specifically:
a. He works regularly and consistently with Kate Stanley/Hymers, Social Worker, who provides counselling services to assist in building self-esteem, emotional regulation, coping skills, exploring issues surrounding his guilt and trauma, and his substance use and how it has related to his involvement in the criminal justice system. He also has a positive relationship with the facility social worker, Kristopher Story.
b. He has been described by facility staff as having matured significantly during his period of incarceration, and that he is a positive role model and leader for other youth in the facility. He will often assist other youth with learning the routine and expectations of the facility, encourage them to participate in programming, and assist them in the gym. He stays out of any negative dynamics, and often tries to help temper the negative behaviour of other youth.
c. He has earned worker status in the facility because of his good behaviour, which has allowed him to help in the kitchen with the preparation of meals and snacks. He assists with the planting and tending of the garden, as well as the canning and preserving of vegetables. He has also been permitted to work outside flooding and maintaining the ice rink, as well as completing odd jobs around the facility with a maintenance worker. He also assisted in the painting and clean-up of a second living unit at the facility when damage was done by other youth. The administrator for the facility has acknowledged his hard work.
d. He has completed all programming that the facility offers and continues to attend programs even though he is not required to. This includes a cognitive behavioural program designed to address issues with behaviour, emotion regulation, self-control, and problem-solving skills. In addition to other programs, he has completed substance abuse and anger management programming, as well as life skills, and cultural programming.
e. Notably, in April 2023, A.M. completed the requirements for his high school diploma. He applied to college for a remote general arts program, but the facility was unable to facilitate his access to the program at the time. He still wishes to attend college remotely, and has been accepted into programs at Confederation College, Seneca College, and Fanshaw College. While he would like to work in the social services field to help youth like himself, he recognizes that criminal background checks as requirements for employment could hinder his employment opportunities. He is also interested in getting into a trade.
f. Overall, he is described as a “nice kid”, a “very bright young man who displays a lot of motivation, hopefulness, and resiliency…”, and “hard working”, and “very engaging and eager to work on himself”.
[31] Between 2017 and 2022 A.M. has experienced considerable loss. He has experienced the deaths of four close cousins, two close friends, his ex-girlfriend (who he remained close with) committed suicide, and his older sister died in September 2022, leaving four young children. All the circumstances surrounding all these deaths were tragic and unexpected. While A.M. has done well while incarcerated, concern has been expressed that it may be difficult for A.M. to come to terms with these losses again when he is released from custody and the losses become more real.
[32] All report writers have noted a concern for how A.M. will manage once he is released from custody and his life becomes drastically different. He has become institutionalized due to living in a secure environment for the past 4 years, making it difficult for the professionals involved to say how he will do once released and to assess the risk (if any) that he poses.
[33] The need for A.M. to have significant supports when he is reintegrated into the community upon the completion of his sentence has been noted by family and professionals as crucial. A.M. is close to his maternal grandmother, who appears to be a positive support, and to his mother. His mother is recently sober, and therefore it is not clear how much support she is able to offer him, although the s. 34 assessors overall see his family as a “strong strength and protective factor”. There are several recommendations that have been made by the various report writers. There are specific programs that have been identified as potentially helpful. Continued work with Ms. Stanley/Hymers is noted by the PSR writer as important to address any mental health concerns that arise. The PSR writer feels that a slow reintegration with the support of facility and community supports will be crucial. All report writers view ongoing counselling and programming, specifically related to trauma, healthy coping skills and substance use as being necessary, as well as participation in cultural activities, in recreational activities and hobbies, and support to continue his education or receive skills related to obtaining employment. A.M. has expressed a willingness to participate in a residential treatment program, and his family have been placed on a waitlist for a family healing residential program.
Victim Impact:
[34] The family of Mr. Slipperjack prepared victim impact statements for the sentencing of Mr. Keewaykapow. The Crown read and entered those same statements in this matter involving A.M.. There are three statements, as follows:
a. Corrie Slipperjack, Liam’s mother, dated July 25, 2023;
b. Lily Slipperjack, Liam’s grandmother; and
c. Tanisha Slipperjack, Liam’s sister.
[35] All three statements convey the profound and enduring impact that Liam’s senseless death has had on his family. Their pain is made that much worse by the fact that his death came at the hands of his friends. I have no doubt that there are many more family members and friends of Liam who continue to suffer from the enormous loss of this young man and the tragic way in which he lost his life.
[36] Liam’s mother, Corrie, speaks of the anger she often feels towards A.M. and Mr. Keewaykapow. She says that Liam trusted them, and they betrayed him in the worst way possible. She talks about how her “heart broke into a million” pieces when she had to watch her 18-year- old son take his last breath. She speaks of the ongoing heartbreak and pain of losing a second son. She wakes up every morning thinking of her son, who she misses terribly, and who was such a blessing to her after losing her first son. She describes Liam as a good person with a kind heart. She speaks of the tears she continues to shed, and the days she still expects him to walk through the door and tell her he loves her. Her pain is unimaginable and will never heal.
[37] Liam’s grandmother, Lily also describes the constant ache in her heart because of Liam’s death and the way in which he died. Her statement also conveys anger and disbelief that lifelong friends could do this to a friend who had been kind and generous towards them. She too had to watch Liam in the hospital, suffering in his last days, and take his final breath. She describes the trauma felt by the family as hitting “like a big storm”, with the sorrow and hurt experienced by all, including Mr. Slipperjack’s siblings, and which is still felt to this day.
[38] One of those siblings, Tanisha, describes the “nightmare that is never ending” that has been suffered by the family since they tragically lost Liam. She too talks about the wide range of emotions that continue to flood her daily. She talks about the anger, hurt, sadness, and tears she silently cries so as not to upset her younger siblings more than they already are. She talks about wanting to be strong for her mother and her siblings and to take away their pain, but that she feels helpless and often breaks down and cries with them. She too speaks about catching herself some days as she expects Liam to walk through the door the way he used too. But Liam will never walk through the door again and all that his family has left of him are pictures and memories of the times they spent together.
[39] Tanisha clearly loved her brother very much and felt close to him. She describes the kind-hearted person she knew as a brother and how he deserved so much better from people he called friends. Time has not lessened the pain of losing Liam.
[40] There is also no sentence I can impose that will lessen this family’s pain or the feelings of anger and betrayal given that he died at the hands of friends. I have read the family’s statements more than a few times. I have seen Liam’s photograph. I have watched what he had to endure on April 30th. I have felt their pain, anger, and sadness through their statements and in the courtroom. I offer my sincere condolences to Liam Slipperjack’s entire family, his friends, and his community.
[41] I now must turn to an analysis of the legal issues raised, and the applicable principles in imposing a just and appropriate sanction for A.M.’s role in Liam Slipperjack’s death.
ANALYSIS:
Issue #1 – Should A.M. be sentenced as an adult or a youth?
Legislation and General Principles:
[42] The youth criminal justice system in Canada provides a separate and distinct regime for young people that recognizes their stage of development, the immaturity of youth, and the potential for rehabilitation and reintegration with various levels of intervention. There is a strong remedial component to the provisions of the YCJA, which also has a focus on accountability. The principles underlying the YCJA are more fulsomely set out in s. 3 of that Act.
[43] Specifically with respect to sentencing, s. 71 of the YCJA requires this Court to hold a hearing of the application for an adult sentence at the commencement of the sentencing hearing. Both parties and the young person shall be given an opportunity to be heard at the hearing. Defence counsel made submissions on behalf of A.M.. A.M.’s parents did not seek to make any submissions.
[44] The test for an adult sentence is found in s. 72(1) of the YCJA. That section requires the court to 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. that a youth sentence imposed in accordance with the purposes and principles set out in subparagraph 3(1)(b)(ii) and s. 38 would not be of sufficient length to hold the young person accountable for his offending behaviour.
[45] Section 72(2) of the YCJA imposes the Crown with the burden to prove the elements of s. 72(1).
[46] In R. v. O.S., 2023 ONSC 6737, at paras. 41 – 43, Akhtar J., summarized various principles applicable to s. 72. Specifically:
a. Akhtar J., cited R. v. O.(A.), 2007 ONCA 144, 84 O.R. (3d) 561, at paras. 32 to 34 in stating that there is no specified threshold required to meet the burden. In other words, the Crown is not required to prove that the s. 72(1) criteria have been met beyond a reasonable doubt or on a balance of probabilities. What s. 72 requires the sentencing judge to do is to weigh and balance the enumerated factors and then decide whether a youth sentence is sufficiently long to hold the young person accountable for the offending behaviour.
b. In considering s. 72(1) I must be mindful that the two prongs of the test are distinct and must be dealt with separately. While many of the same factors are to be considered under both prongs, there are some factors that are relevant to one but not the other.
c. In R. v. M.W., 2017 ONCA 22, 124 O.R. (3d) 1 (“M.W.”), leave to appeal ref’d 2017 SCCA No. 109 (SCC), at paras. INFO, the Court of Appeal outlined three factors:
i. The seriousness of the offence;
ii. The age, maturity, character (including sophistication, intelligence, and capacity for moral reasoning), background and previous record of the young person; and
iii. Any other factors the Court considers relevant.
[47] The Court of Appeal for Manitoba in R. v. Okemow, 2017 MBCA 59, [2017] M.J. No. 173, at para. 61 (“Okemow”) confirmed that the standard is one of satisfaction after careful consideration by the court of all the relevant factors. In R. v. Anderson, 2015 MBCA 30, at para. 11, the Court of Appeal for Manitoba confirmed that “…the Court is called upon to exercise its judgment and make “a reasonable prediction of [the young person’s] future behaviour based on an evaluation of all the evidence.” [Citation Omitted]
[48] Pursuant to s. 72(1.1) of the YCJA, if I am not satisfied that both prongs of the test are satisfied such that an order should be made under s. 71(1), then I shall order that the young person is not liable to an adult sentence and that a youth sentence shall be imposed. See also: R. v. M. (H)., 2022 MBPC 42, at para. 36.
[49] If I do find that both prongs of the test are satisfied such that an order should be made under s. 71(1), then even though A.M. will be subject to an adult sentence (which could exceed the maximum sentence permitted for manslaughter under the YCJA), in determining an appropriate sentence I must still apply the principles applicable to sentencing a youth as found in ss. 3 and 72 of the YCJA.
The First Prong - The Presumption of Diminished Moral Blameworthiness: s. 72(1)(a)
Legal Framework:
[50] The first step in the analysis requires consideration of whether the young person’s moral blameworthiness is that of a youth or an adult.
[51] In R. v. D.B. [2008] 2 S.C.R. 3, 2008 SCC 25 (“D.B.”), the Supreme Court of Canada 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.
[52] At para. 41 of D.B., the Supreme Court stated the following:
[41] 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 the original]
[53] To satisfy the first prong of the s. 72(1) test and rebut the presumption of diminished moral blameworthiness, the Crown must satisfy the court that at the time of the offence 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 sentencing principles should apply: M.W., at para. 98, and R. v. S.B., 2023 ONCA 369, 426 C.C.C. (3d) 367 (“S.B.”), at para. 60.
[54] As the Court of Appeal explained, in part, at para. 97 of M.W.:
[97] In my view, the focus must necessarily be on the issue of maturity. The presumption assumes that all young people start from a position of lesser maturity, moral sophistication and capacity for independent judgment than adults. Bala and Anand explain, at p. 4:
Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self-awareness, and they may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why they committed a crime most frequently respond: “I don’t know.”…
[55] With respect to the seriousness of the offence and the circumstances of the offender, while these are factors that must be considered, in M.W., at para. 112 the Court of Appeal cautions trial judges that it would be an error to focus solely on the offence:
[112] 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.
[56] In R. v. Chol, 2018 BCCA 179 (“Chol”), at para. 61, Stromberg-Stein J.A. compiled a non-exhaustive list of factors to be considered when engaging a s. 72(1)(a) analysis. At para. 62, Stromberg-Stein J.A. observed that no one factor alone is determinative of the result and that some factors may weigh both for and against the rebuttal of the presumption:
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? This 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?
Discussion:
Seriousness and Circumstances of the Offence:
[57] The Crown points to various factors to suggest that the presumption of diminished moral culpability is rebutted.
[58] I will address first the seriousness of the offence and the circumstances surrounding the offence.
[59] There is no dispute that the offence of manslaughter is one of the most serious offences a person can commit, potentially attracting a sentence of life imprisonment. It arises because of the taking of a life, which although unintentional, may have been reckless, and still represents an unlawful killing of another human being. But the seriousness of the offence alone does not rebut the presumption of diminished moral culpability. It is but one of several factors to be considered. It is relevant to the extent that it assists in determining the level of sophistication, moral judgment, and maturity demonstrated by A.M. in the commission of the offence.
[60] The level of moral judgment or sophistication demonstrated in the planning and implementation of the offence, along with the young person’s role in the offence are, as outlined above, relevant considerations. The Crown argues that A.M.’s role in the commission of this offence, which was a pursuit of Mr. Slipperjack followed by a targeted attack to his head, in a situation in which he was outnumbered and became unconscious, demonstrates a level of maturity and sophistication that is inconsistent with the presumption of diminished culpability associated with youth. Specifically, the Crown argues that multiple choices made by A.M. that led to the death of Mr. Slipperjack and belie any suggestion that this was an impulsive act. The Crown points to the choice to:
a. pursue;
b. attack;
c. target the head;
d. remove the shoes;
e. leave the scene;
f. return to the scene;
g. deliver additional blows to the head;
h. not call for assistance; and
i. party and drink with friends as Mr. Slipperjack lay dying.
[61] The defence denies this is the case, and argues on the contrary, that the haphazard sequence of events and impulsive way the offence was committed are entirely consistent with the immaturity of youth and an inability to fully appreciate the consequences of the youth’s actions.
[62] The circumstances of this offence, as I have already outlined, demonstrate a vicious attack on a friend, who did not fight back, and at one point was unconscious. It was motivated by misguided vigilante justice for an alleged assault perpetrated by the victim against his girlfriend, combined with the bravado brought on by alcohol consumption. There was no evidence of planning associated with this offence.
[63] There is nothing about the offence that suggests a level of sophistication or maturity. While vigilantism could be argued to be moral judgment consistent with that of an adult, that is not always the case. From the start of the chase, this offence took no more than 2 minutes to commit, which included the immature act by Mr. Keewaykapow of throwing Mr. Slipperjack’s shoes in the garbage. I find that this was an impulsive and incredibly misguided reaction to Mr. Slipperjack’s interaction with his girlfriend, that was influenced by alcohol consumption and by Mr. Keewaykapow’s urging. While neither of these factors excuse A.M.’s role in this attack, I do not find that A.M.’s actions demonstrated any form of critical thinking or adult-like judgment.
[64] Similarly, there is nothing in A.M.’s conduct after the offence that demonstrates the capacity of an adult. He returned to the same residence and continued to drink. He showed no appreciation for the seriousness of Mr. Slipperjack’s condition. While he did not immediately turn himself in to police, he did so within days. He expressed sadness for his role in Mr. Slipperjack’s death, and although he does not remember the events and finds it hard to believe he could do that to a friend, he has acknowledged his role through his plea of guilt.
Circumstances of the Young Person at the Time of the Offence:
[65] As for the circumstances of A.M. at the time of the offence, he was just one month shy of his 18th birthday. The Crown argues that the closer the offender is to being an adult the less impact the statutory presumption of reduced culpability should have. Thirty-days later A.M. would not have enjoyed that presumption. The Crown further argues it cannot be said there would be any significant maturing happening within those 30 days. Who he was as a 17-and 11-month-year-old is the same person as who he would have been as an 18-year-old who would not enjoy that presumption. The Crown argues that because of this factor, this is very different from a 15-year-old presenting before the court. The Crown cites the British Columbia Court of Appeal in R. v. Pratt, 2007 BCCA 206 and also R. v. Wong, 2016 BCCA 305, in arguing that I should take into consideration the fact that A.M. was almost 18 years old at the time of the offence.
[66] While I agree with the Crown that the proximity of A.M. to age 18 is a factor militating in favour of a finding that A.M. demonstrated the level of maturity and moral sophistication of an adult, it is but one factor. Age alone cannot rebut the statutory presumption of reduced culpability, and I do not take the Crown submissions to mean that. The legislation has as the age to which the presumption of reduced culpability applies, being under age 18. More than proximity to age 18 is required to rebut the presumption.
[67] The Crown also argues that in addition to his age, and the circumstances of the offence, the fact that A.M. has criminal antecedents is significant. He has a serious and significant criminal record, with this crime representing an escalation in the degree of criminal violence he has engaged in. Furthermore, at the time of the offence A.M. was bound by a probation order, but living quite independently in the sense that he did not report to probation when supposed to, did not register for school when he was supposed to, was often under the influence of substances, and was making decisions free and clear from authority in his life. In other words, he was making adult decisions and doing what he wanted.
[68] I note that when A.M. was released from custody on March 15, 2021, his family was living back in Fort Hope. Like so many Indigenous youth, he was unable to complete high school in his home community. I also do not know what the terms of his probation required of him as far as living arrangements and education (if anything). The Gladue report indicates that A.M. remained in Thunder Bay with the goal of finishing high school, getting a job, and moving out on his own. He did not register for school when he was supposed to but registered for school on March 31st, 2021. It is not known whether he attended any classes. He still required the financial support of family and had to return to the Limbrick housing complex to live with his uncle. What level of supervision and support he was receiving in this living arrangement is not known.
[69] I disagree with the Crown that these facts support a suggestion that A.M. was living as an adult, making his own choices with the maturity of adulthood. A.M. was still dependent on family to assist in meeting his basic living needs. His lack of consistency attending probation appointments and signing up for school are as consistent with the immaturity of youth without proper supervision as they are independent adult-like decision-making. I find that his use of alcohol and other substances was not so much a choice consistent with adulthood as it was a learned response and coping mechanism to deal with the constant trauma associated with his upbringing, including the intergenerational trauma that is the legacy of the residential and Indian day school programs, and circumstances he had been exposed to. He may suffer PTSD. This was not a young man who was consciously or unconsciously making adult choices, but rather one who the reports suggest was simply trying to cope day-to-day the best he knew how given what he had learned growing up.
[70] With respect to his criminal record, A.M.’s crimes are reflective of a misguided and troubled youth who was easily influenced by peers. While his protective actions in the incident involving his uncle and the intoxicated woman suggest some level of maturity, the barricading in a room and not calling for help are equally suggestive of a scared youth. I find that in this case this is a more appropriate factor for consideration under the second prong of the test.
[71] The Crown further argues that by all accounts, A.M. was intelligent, did not suffer any cognitive or other mental deficiencies, and was resilient. In other words, combined with his age and all other factors, he had the capacity of an adult.
[72] There is nothing in the reports to suggest that A.M. was a particularly mature or immature youth at the time of the commission of the offence. There are no known cognitive defects or psychological findings that indicate reduced moral culpability from what one would otherwise expect of someone his age. The Crown is correct in that the reports suggest that A.M. is quite intelligent, but he also lacks self-confidence, is easily influenced by others, and says he consumed so much alcohol on the night of Mr. Slipperjack’s death that he does not remember it. While there are no visible signs of severe intoxication on the video, I also do not know what that looks like for A.M..
[73] The most significant indication of the maturity of an adult was A.M.’s assumption of a caregiving role for his younger siblings as his parents battled their own addictions. While there is some level of maturity that comes with the assumption of this responsibility, this alone does not sway me. I do not have sufficient evidence of what he did. Other actions of A.M., including when he escaped from the open custody facility to check on his siblings suggest a lack of appreciation for the consequences of his actions on his ability to help his siblings, or in other words an immaturity. A.M. was, as he has described himself, a “kid”.
[74] Overall, I cannot conclude that at the time of the offence A.M. demonstrated the level of maturity, moral sophistication, and capacity for independent judgment of an adult such that an adult sentence is appropriate. On the contrary, A.M. was a troubled youth who had endured significant trauma in his then 17 years and 11 months, had been exposed to significant levels of violence, and who abused substances to cope. He came from a community ravaged by the legacy of residential schools and poverty. Surrounded by violence and trauma, he was ill-equipped to make mature decisions. All of this was a factor in the commission of this crime.
The Second Prong: Is a Youth Sentence of Sufficient Length to Hold the Young Person Accountable – s. 72(1)(b)
Legal Framework:
[75] If the court is satisfied that the presumption of reduced moral blameworthiness has been rebutted by the evidence, the court moves to the second prong of the test. The second prong requires the court to consider whether a youth sentence is sufficient to hold the young person accountable for their offending behaviour.
[76] Because of my findings under the first prong of the test, it is not necessary for me to decide this issue. However, in the event I am incorrect with respect to my conclusions on the first prong, I would not have found that a youth sentence is insufficient, and the Crown application would have failed at the second prong. I also hope that the analysis of this issue assists Mr. Slipperjack’s family in understanding further why a youth sentence is appropriate.
[77] Sentencing an offender guilty of homicide is not an easy task, whether a youth or an adult. Watt J.A., in R. v. Browne, 2002 O.J. No. 900 (C.A.), at para. 17 noted:
[17] The criminal law does not restore life. The objectives, principles and factors that govern the imposition of sentence are not meant to represent the value of the life that has been unlawfully taken. They are designed to reflect the moral blameworthiness of the person who commits an offence and the gravity of the offence, so far as the law is concerned, that he or she has committed.
[78] The key to the determination of a fit sentence in a manslaughter case is evaluating the level of moral culpability of the offender: R. v. Stone, 1999 CanLII 688 (SCC), 1999 SCJ No. 27 (SCC), at para. 247. There are degrees of moral culpability in the offence of manslaughter that require consideration of the nature and quality of the unlawful act, and the way it was committed. It is case specific. See: R. v. Kwandibens, 2021 ONSC 7525, at para. 48.
[79] Section 38(1) of the YCJA sets out the purpose of a 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.
Restraint is to be exercised in considering the appropriate sentence to hold the young person accountable.
[80] The theme of accountability is also set out in the governing principles of the YCJA as provided for in s. 3, which must be considered even if imposing an adult sentence.
[81] In M.W., at para. 103, the Ontario Court of Appeal noted that accountability under s. 72(1)(b) of the YCJA is equivalent to the adult sentencing principle of retribution. Retribution focuses on the moral culpability of the offender having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct.
[82] In R. v. H. (C.T.), 2015 MBCA 4 (“H.C.T.”), the 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 accountability in the context of sentencing a young person:
[24] 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]
[26] 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].
[83] The Court of Appeal for Ontario has also noted that the accountability analysis requires consideration of proportionality and rehabilitation, with rehabilitation being subject to the proportionality principle. Rehabilitation is but one factor and is not determinative, but the risk of future harm must be considered. Where there is concern that a youth sentence will not provide the necessary supervision in the future due to its termination when the offender is still relatively young, an adult sentence may be warranted. See: M.W., at para. 101, Owusu, at paras. 23-24; and R. v. Todorovic, 2014 ONCA 153, at paras. 42-43.
Discussion:
[84] There is no dispute as to what the custodial sentence would be for this crime if sentenced as a youth. The maximum sentence is three years. There may or may not be dispute as to ancillary or other orders, or what credit should be afforded to him for time served, which will require further submissions.
[85] The Crown argues that this sentence is not long enough to reflect the seriousness of the offence and A.M.’s role, nor is it long enough to ensure the necessary continued supervision of A.M. due to the potential risk he imposes if released. The Crown argues that an adult sentence of imprisonment for 7 years is what is necessary to properly hold A.M. accountable for his role in the death of Mr. Slipperjack, along with ancillary orders available when sentencing an adult. The Crown cites the following reasons:
a. His moral culpability in the death of Mr. Slipperjack is high. He engaged in intentional, violent behaviour that caused the worst harm possible, death. His conduct as evidenced by the video of the offence reveal a callous and brutal attack on a person who did not fight back.
b. While his adult co-accused was sentenced to 5.5 years, A.M.’s moral culpability and conduct warrants a higher sentence due to the facts and his role in the altercation. He delivered more blows, and the final blow to a clearly very injured friend. The aggravating factors include the degree and brutality of the violence, noting that the beating continued after Mr. Slipperjack lost consciousness, there was no attempt to seek medical help, all blows were exclusively head blows (a vulnerable part of the body), and A.M. grabbed the victim by his shirt, punching him and allowing him to fall and for his head to hit the pavement.
c. A.M. has a history of aggressive and violent behaviours. He is a violent offender. The risk he presents could not be properly assessed by the s. 34 assessors, who have identified the need for A.M. to continue to be supervised and receive ongoing supports.
d. The greatest predictor of future behaviour is past behaviour. A.M.’s prior involvement with the criminal justice system has not deterred him. Instead, his criminality has only escalated. The fact that his motivation for this crime was vigilantism is, in of itself disturbing. This was not even “an eye for an eye”. He did not call the police when he witnessed behaviour on the part of Mr. Slipperjack that he thought was inappropriate. He decided to dole out justice himself.
e. Since the age of 12 years old, A.M. has been subject to various probation orders that have not always been complied with and have not deterred his behaviour. He was subject to a probation order at the time of commission of this offence. Despite multiple interventions of the criminal justice system and the supports of probation and other community organizations, his record of violence continued to escalate. This is an aggravating factor.
f. The court should be concerned about A.M.’ family’s ability to properly supervise and support him given their history. His mother is recently sober and has not always been a positive influence, having brought him marijuana gummies to his secure custody facility.
[86] In addition to the general legal principles set out above, the Crown points to the following cases in support of a 7-year adult sentence, combined with a 10 year weapons prohibition, being a more fit and appropriate sentence:
a. R. v. Anderson, 2015 MBCA 30
The offender was an indigenous person three months shy of his 18th birthday at the time of the offences. He was convicted of break and enter and sexual assault. He was sentenced to 10 years by the trial judge, which was reduced to 8 years on appeal. Important factors included that the offender required significant mental health supports, was approaching his 18th birthday, had been bound by a probation order at the time of the offences, and despite his Indigenous background there was a high degree of moral culpability.
b. R. v. R.L.T., 2012 M.J. No. 326
Two 16-year-old Indigenous youth were convicted of manslaughter in the beating death of another youth. “F” was sentenced to 3 years in youth custody without credit for the 3 years already served, for an effective sentence of 6 years. F had no criminal record, had a very favourable PSR showing positive behaviour while in custody and a psychiatric report which stated that he was genuinely remorseful and did not have any significant mental health concerns, aside from ‘substance usage concerns’. “T” had a criminal record, problematic behaviour while in custody, limited acceptance of responsibility/remorsefulness, and was found to be a moderate risk to reoffend. He received an adult sentence of 8 years with credit at 1:1 for three years’ time served.
c. R. v. A.B., 2004 O.J. No. 2684 (S.C.J.)
AB and BH plead guilty to manslaughter after beating the victim. Another co-accused entered a plea of guilty to second degree murder. Alcohol was a factor when an altercation ensued between the victim and the co-accused that escalated. The victim was punched and kicked in the head and household objects were used to hit him. He died of blunt force injuries to the head, chest, and abdomen. Each adult, but youthful offender received 10-year sentences, subject to credit for time served.
d. R. v. George, 2010 ONSC 6017
22-year-old Mr. George plead guilty to manslaughter in the beating death of his friend. The two men got into an argument, which resulted in injuries to the victim’s brain because of the kicks delivered by George. Noting that aggravating factors included that George was the aggressor, landed the first blow, kicked the victim in the head when he was on the ground and defenceless, and failed to get him medical care, Pierce J., sentenced him to 7 years.
e. R. v. Killiktee, 2011 ONSC 5910, aff’d 2013 ONCA 332
The offender plead guilty to manslaughter in the beating death of another Indigenous woman. Alcohol was involved. The victim struck the first blow, but the offender took her to the ground. The victim hit her head hard on the pavement, following which the offender kicked her four more times before someone intervened. The victim died 4 months after the attack. The court concluded that 9 years was an appropriate sentence given the viciousness of the beating while the victim was lying on the ground and the targeted beating of the head. The offender’s level of violence and criminal record had escalated notwithstanding substantial treatment efforts.
f. R v. Kwandibens, 2021 ONSC 7525
A 40-year-old Indigenous offender plead guilty to manslaughter. The offender, along with three co-accused was very intoxicated when they began beating the victim’s head and face after an argument broke out. The offender delivered the first blow. The victim was unconscious but did not die right away. Her clothing was removed, and she was shoved into a Rubbermaid bin, following which she died. A sentence of 8 years was imposed by me given the sudden, vicious, and prolonged beating in which the offender delivered the first blow.
g. R. v. Wabasse, 2017 ONSC 1269
Mr. Wabasse attacked a victim, unprovoked, using fists to take him to the ground and then proceeded to stomp on his chest and head. The victim was unconscious. Wabasse dragged the victim into an apartment and then hung out for several hours. Wabasse, a 23-year-old Indigenous man was designated a dangerous offender and subject to a long-term supervision order. The length of the determinate sentence was found to be 8 years, noting the violent nature of the attack and negative impact the commission of the offence has had on the victim’s family as aggravating factors.
[87] Having considered the cases cited by the Crown and all of the circumstances of this case and this offender, I am not satisfied that an adult sentence is required to sufficiently hold A.M. accountable for the manslaughter committed against Mr. Slipperjack.
[88] I find that had A.M. been an adult, or had I decided to sentence him as such, I would not have sentenced him to 7 years. In my view, while that sentence does appropriately account for the aggravating factors in this case, it does not properly account for A.M. being a youthful Indigenous offender, the significant Gladue factors present in this case, the sentence received by A.M.’s co-accused, and the principles of restraint and rehabilitation.
[89] The aggravating factors are not in dispute:
a. Being very close personal friends, A.M. was in a position of trust in relation to Mr. Slipperjack [s. 718.2(iii) of the Criminal Code];
b. The offence had a significant impact on the victim, causing his death [s. 718.2(iii.1) of the Criminal Code];
c. The beating continued after Liam lost consciousness [R v George, at paras 34-35];
d. Mr. Slipperjack was left injured and unconscious, and no medical help was summoned [R v George, at paras 34-35];
e. Blows were intentionally and repeatedly directed to Mr. Slipperjack’s head [R v Killiiktee, at para 56]; and
f. A.M.’s prior and escalating criminal record for crimes of violence [R v Killiktee, at para 57].
[90] In addition to these factors, I have considered the profound and enduring harm suffered by Mr. Slipperjack’s family.
[91] Overall, as an adult, I would have sentenced A.M. to 5.5 years. In my view, Mr. Keewaykapow’s sentencing decision is the most analogous. I disagree with the Crown that A.M. demonstrated a greater moral culpability than Mr. Keewaykapow. While Mr. Keewaykapow was found to have some cognitive defects (unlike A.M.), the facts are clear that the argument was originally between Mr. Keewaykapow and Mr. Slipperjack, and it was Mr. Keewaykapow who initiated the pursuit and encouraged A.M.’s participation. While A.M. delivered more blows, including those that resulted in Mr. Slipperjack’s head hitting the pavement, all the blows delivered by both young men were vicious and demonstrated brutality and a lack of any care and concern for their victim. Both young men have significant Gladue factors present. A.M. has demonstrated significant rehabilitative potential and insight.
[92] I note that 5.5 years equates to 2005 days in custody. A.M. has spent 1220 days in custody. If I were sentencing him as an adult, I would see no reason not to apply a Summers credit of 1.5:1 to recognize the loss of liberty pre-sentencing. This would result in a credit of 1830 days served, leaving a remaining 175 days or just under 6 months left to be served. I cannot conclude that an extra 6 months (which may or may not be eligible for parole release) is more appropriate to hold A.M. accountable for his crime.
[93] As for the ancillary orders the availability of a lesser period of weapons prohibition would not be a significant factor to a determination that an adult sentence is more appropriate. This case did not involve weapons.
Necessary Supervision and Reasonable Assurance of Rehabilitation:
[94] I am also not satisfied that a youth sentence is unable to provide the necessary supervision and reasonable assurance of A.M.’s rehabilitation to the point that he may not safely be integrated into society.
[95] A.M. has done remarkably well during his period of incarceration. He, for the most part, has been a model inmate. He has kept himself busy and productive while incarcerated and has expressed to the various report writers a desire to continue with his education and walk away from the only life he has known by getting a job, and possibly returning to his community. By all accounts he has demonstrated insight and maturity with respect to the path he must take and has taken active steps during his time at the youth facility towards healing.
[96] Despite all the positive steps taken, there is cause for pause. A.M. has been institutionalized for so long that there is considerable concern expressed by all report writers about A.M.’s mental health and ability to cope without resort to substances upon his release from custody. While he is doing well within the structure and confines of the youth facility, has incurred no new charges while in custody, and appears to have applied his newfound skills within the custodial setting, the prognosis is guarded because he has not yet had an opportunity to demonstrate whether he is capable of using those skills in the community or whether he will revert to substance use and violence. As the s. 34 assessors noted, A.M.’s ability to function back out in the community is an unknown. He does not have a good history of functioning well outside of custody. The new skills he has learned may or may not now be less intuitive than previous coping mechanisms of alcohol and other substances, which in this case, significantly contributed to his violent behaviour.
[97] Having said this, I disagree with an approach that suggests the best option is to institutionalize this young man further. He has taken every program available to him. He has shown great responsibility and earned trust. His ability to apply his newfound skills as a young adult will remain unknown while he remains institutionalized. I am concerned that incarcerating him for a further period in an adult facility could derail his progress. I am not satisfied that what A.M. needs to be successful upon his release is a further period of incarceration. But he does require a good, strong reintegration plan that provides for the necessary supports and monitoring.
[98] I appreciate the argument of the Crown that support and supervision through probation has been tried before and failed. This is undeniable. I find, however, that the circumstances are different such that there is still cause for concern, but enough has changed to suggest that a different outcome is possible. In particular, the work A.M. has done towards healing and gaining insight into his behaviours had not previously been done consistently. A.M. was also three years younger the last time he was released. He was released to an area known for violence, which will not now be the case. He now has a history of a long-term therapeutic relationship that can continue until age 25 that he did not previously have. There are no COVID restrictions on accessing support, unlike the last time he was released. Appointments with probation and counselling may be in person. A.M.’s mother has demonstrated through her own (albeit brief) sobriety, and through her application for family healing programming, a willingness and greater capacity to support A.M. in his healing.
[99] I agree with defence counsel and the report writers that a culturally appropriate plan must be in place before A.M.’s release to best ensure his continued progress in dealing with his trauma, to ensure no further involvement with the criminal justice system, and most importantly to ensure that he never again finds himself in a situation in which someone is either seriously injured or dies by his hand. The system failed A.M. when he was released in 2021 during the pandemic with only limited and virtual supports. It is important that A.M.’s sentencing be delayed slightly to ensure that these supports are in place now. I also wish to give counsel an additional opportunity to make any further submissions they feel they are necessary as to that sentence and terms now that the Crown application to sentence A.M. as a youth has been decided.
[100] The Application is dismissed. Pursuant to sections 72(1.1) and 73(2) of the YCJA, I order that A.M. is not liable to an adult sentence for the offence of manslaughter committed contrary to s. 234 of the Criminal Code. A youth sentence shall be imposed on him for this offence on a date following further submissions by counsel.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: September 26, 2024
COURT FILE NO.: YC-23-207-00
DATE: 2024-09-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Crown
- and –
A.M.
Accused
REASONS FOR DECISION
Nieckarz J.
Released: September 26, 2024