Académique Documents
Professionnel Documents
Culture Documents
Docket: YO 12-01-31978
(Winnipeg Centre)
Indexed as: R. v. J.A.M.C.
Cited as: 2015 MBQB 115
)
)
HER MAJESTY THE QUEEN,
)
)
)
- and )
)
J.A.M.C.,
)
)
Young Person. )
)
)
COUNSEL:
Susan D. Baragar,
for the Crown
Todd E. Bourcier,
for the Young Person
Judgment delivered:
July 8, 2015
SIMONSEN J.
[1]
[2]
2
for her actions. Crown counsel seeks a penitentiary sentence of
five years on each count of criminal negligence causing death, to
be served concurrently, as well as three-year sentences on each
count of criminal negligence causing bodily harm, to be served
concurrently with one another and the five-year sentences.
[3]
C. takes the position that the Crown has not met its burden
Defence
[4]
the YCJA, as it was before the Safe Streets and Communities Act,
S.C. 2012, c. 1 which came into force on October 23, 2012.
Section 72(1) of the YCJA, as it then read, sets out the test to be
applied and the factors to be considered in deciding whether to
impose an adult sentence, as follows:
72. (1) Test - adult sentences - In making its decision on an
application heard in accordance with section 71, the youth
justice court shall consider the seriousness and circumstances of
the offence, and the age, maturity, character, background and
previous record of the young person and any other factors that
the court considers relevant, and
(a) if it is of the opinion that a youth sentence imposed in
accordance with the purpose and principles set out in
subparagraph 3(1)(b)(ii) and section 38 would have
3
sufficient length to hold the young person accountable for
his or her offending behaviour, it shall order that the
young person is not liable to an adult sentence and that a
youth sentence must be imposed; and
(b) if it is of the opinion that a youth sentence imposed in
accordance with the purpose and principles set out in
subparagraph 3(1)(b)(ii) and section 38 would not have
sufficient length to hold the young person accountable for
his or her offending behaviour, it shall order that an adult
sentence be imposed.
[5]
[6]
sentencing principles are set out in s. 38(1) and (2) of the YCJA,
pre-amendment, as follows:
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.
(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
4
guilty of the
circumstances;
same
offence
committed
in
similar
[7]
[8]
larger
deterrence.
sense
or
the
principles
of
denunciation
and
6
Retribution, although linked to the blameworthiness of a
particular offender, was to be distinguished from denunciation
and general deterrence which cannot apply to young persons.
This also applies to the principle of specific deterrence which has
been held as having no application to young persons pursuant to
the YCJA.
[9]
What the
[10]
Recently,
the
Manitoba
Court
of
Appeal,
in
R.
v.
7
young persons] future behaviour based on an evaluation of all of
the evidence (para. 11).
[11]
72(1).
Seriousness and Circumstances of the Offences
[12]
A fourth,
[13]
will bring back those whose lives have been lost, or adequately
address the pain and suffering of those injured and the families
of the deceased.
[14]
8
(a)
(ii)
in her blood;
Her blood alcohol level at the time of the collision
was between .07 and .12 mg%, according to the
Crown
experts
samples;
consumption
extrapolation
based
to
on
an
C.s
from
her
description
ambulance
breath
of
her
attendant
and
.12 mg%;
C.s ability to drive was impaired by alcohol but she
(iv)
(v)
(vi)
(vii)
(b)
9
home but then got a text message from a friend who asked
to be picked up from a bar, so she proceeded to do so;
(c)
She did not have a plan for a designated driver that night;
(d)
(e)
(f)
[15]
10
Defence counsel says that these facts do not support the
inference suggested by Crown counsel.
[16]
When I consider all the agreed facts and texts relied upon
At the preliminary
inquiry, that friend testified that she knew C. was going to drink
and drive, and Crown counsel submits that she based this belief
on the exchange of text messages. However, the fact that the
friend drew this inference does not mean that it is established to
the standard of proof beyond a reasonable doubt.
[17]
11
[18]
[19]
collision.
12
currently employed full-time in a retail position. She resides with
a friend in a duplex owned by her mother.
[20]
unaware that he was her father until paternity testing was done.
C. did not meet her father until she was three or four years of
age. Her parents never married.
[21]
has two children. C. lived primarily with her mother, but spent
time with her father. Her parents were involved in a number of
court proceedings in relation to child custody and financial
issues, which came to an end once C. entered her pleas in these
proceedings.
[22]
admitted that C. saw her drinking and driving and feels that she
was not a healthy role model. C.s mother entered a residential
treatment facility in October 2013 and reports that she has been
sober since. C. also stayed there for about a month to deal with
her own alcohol and marijuana issues.
13
[23]
indicated
that
knew
the
consequences
and
how
[24]
with the conditions of her release, she has not consumed any
drugs or alcohol since October 31, 2010.
Her ex-boyfriend
reported to the probation officer that was not the case; however,
he made his allegations only after the breakup with C. and his
damaging personal items belonging to her. Moreover, he would
not testify at the sentencing hearing, although apparently he
would have lost his job had he done so.
In all of the
[25]
victims and their families. C.s. mother, her close friend and a
high school teacher also reported her remorse. Her friend further
14
indicated that C. had contacted her several times late at night
contemplating suicide. C.s father, however, expressed concern
about her post-offence attitude, reporting that he has not seen
her cry, nor has she apologized to the family for putting them
through the stress associated with her involvement.
He also
[26]
offend.
[27]
15
depression and anxiety, and that she has demonstrated fairly
effective coping strategies.
[28]
around
motor
vehicles
and
experiences
16
interventions.
[29]
Dr.
Chaze
also
reported
that
C.
takes
complete
[30]
He thought these
[31]
17
C. as an adult (R. v. B.L., 2013 MBQB 89, 292 Man.R. (2d) 51,
para. 81). In B.L., the court adopted the following comment in
R. v. J.S.R., [2009] O.J. No. 1662 (Sup. Ct. J.) (QL) (para. 71):
While I appreciate that the focus of the YCJA is on the
young person and his or her rehabilitation, the interests of
society as a whole are still relevant to the issue of sentencing.
Put another way, while the focus of the YCJA may be "offendercentric" it is not "offender-exclusive". The interests of the young
person must be balanced against the societal interests in
ensuring that young persons who commit serious violent
offences are subject to meaningful penalties that will help
protect the safety of the community at large. Section 38 of the
YCJA itself refers to "meaningful consequences" that have the
objective of "the long term protection of the public". Both of
these concepts are also referred to in s. 3 relating to the
principles underlying the Act.
[32]
[33]
[34]
offences, C. did many things wrong on October 31, 2010 drinking, texting, speeding and having her vehicle on cruise
18
control - and the consequences of her many transgressions were
tragic. She clearly drove in a manner that showed a wanton and
reckless disregard for the lives and safety of others. And she had
been told about the dangers of drinking and driving and texting
while driving but nonetheless chose to do both.
[35]
devastation she did, that is, she did not intend to kill or hurt
anyone; he attributes her bad choices that evening to her
immaturity.
[36]
19
essentially sought her mothers approval to take the rum from
home, and her mother seems to have largely acquiesced.
[37]
She has pleaded guilty, albeit only days before trial. She has no
criminal record, no re-involvement since the collision, and is
assessed as a low risk to re-offend by Drs. Leigh and Chaze
(though as a medium risk by the probation officer). In terms of
maturity, C. was just over 17 years of age at the time but was
reported by both parents to be immature.
[38]
20
[39]
[40]
21
[41]
In D.S.D., the
He expressed
[42]
22
a home invasion armed with weapons and wearing balaclavas.
They entered the home of a family with children in the middle of
the night and robbed them. Then, while on release, he mugged
an office worker as she was leaving work. The young person had
chosen a criminal lifestyle, and led members of a loosely
associated gang in criminal activity.
He was assessed as a
[43]
23
[44]
[45]
[46]
24
The
He had a difficult
The
25
death. The young person was travelling at 182 km/hr. and
lost control of the vehicle.
[47]
26
the driver and injuring the passenger.
[48]
The
Crowns
cases
involving
adult
offenders
are
[49]
27
[50]
[51]
[52]
interests of society, and the authorities, I find that the Crown has
not rebutted the presumption of diminished blameworthiness or
met its onus of establishing that only the imposition of an adult
sentence would properly hold C. accountable for her offending
behavior.
[53]
28
SENTENCES TO BE IMPOSED
[54]
[55]
[56]
In determining whether
29
custodial sentences are called for and the length of any such
sentences, I again turn to the authorities.
[57]
[58]
[59]
Ontario decisions and the Manitoba Court of Appeal has set the
range of sentence, in this province, for adults who commit the
crime
of
impaired
driving
causing
death
(Ruizfuentes).
30
Furthermore, any cases involving adult offenders must be viewed
with caution because the principles under the YCJA, particularly
as it read at the time of these offences, are different than those
that apply to adult sentencing.
[60]
However, in those
cases, the young persons did not take as many reckless actions
as C. did.
[61]
additional
decisions
have
been
rendered
which,
although
31
months for a 49-year-old man who entered a busy intersection
against a red light while holding and talking on his mobile phone,
as a result of which two pedestrians were injured, one
permanently.
[62]
As
[63]
case and all of the authorities, I am of the view that a noncustodial sentence for C. is not adequate to achieve the purpose
and principles of sentencing set out in the YCJA, particularly
32
given
the
aggravating
circumstances
of
the
offences.
October
31,
consequences.
2010
have
had
devastating
and
lasting
Despite the
[64]
for
this
purpose,
provided
he
receives
access
33
clearance. In addition, I am advised there will be psychologists
and psychiatrists, as well as a mental health nurse, available to
her through the institution.
[65]
[66]
34
___________________________J.