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Date: 20150708

Docket: YO 12-01-31978
(Winnipeg Centre)
Indexed as: R. v. J.A.M.C.
Cited as: 2015 MBQB 115

COURT OF QUEENS BENCH OF MANITOBA


BETWEEN:

)
)
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

Restriction on Publication: No person shall publish the name of the young


person, or any other information related to the young person, if it would
identify the young person as a young person dealt with under the Youth
Criminal Justice Act, S.C. 2002, c. 1.

SIMONSEN J.
[1]

J.A.M.C. (C.) has pleaded guilty to two counts of criminal

negligence causing death and two counts of criminal negligence


causing bodily harm arising from the operation of a motor vehicle
on October 31, 2010, at which time she was 17 years of age.

[2]

The Crown has applied for an order that adult sentences be

imposed on C. on the basis that the maximum three-year


sentence allowed under the Youth Criminal Justice Act, S.C. 2002,
c. 1 (the YCJA) is not sufficiently long to hold her accountable

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

on the application to have adult sentences imposed.

Defence

counsel submits that a total sentence of two years of supervised


probation and 240 hours of community service is fit and proper.
Alternatively, he argues that an appropriate total youth custodial
sentence would be one year, followed by two years of probation.
THE ADULT SENTENCE APPLICATION

[4]

Counsel agree that the Crowns application is governed by

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]

Section 3(1)(b)(ii) states that the criminal justice system

for young persons must be separate from that of adults and


emphasizes the fair and proportionate accountability that is
consistent with the greater dependency of young persons and
their reduced level of maturity.

[6]

The purpose of a youth sentence and the applicable

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

(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; and
(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.

[7]

Section 38(3) sets out the factors to be considered in

determining a youth sentence:


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.

[8]

The notion of accountability under the YCJA, as it read at

the time of these offences, excludes accountability to society in


any

larger

deterrence.

sense

or

the

principles

of

denunciation

and

As stated in R. v. I.R.N., 2010 MBQB 137, 253

Man.R. (2d) 284:


34
In R. v. O. (A.); R. v. M.(J.), (2007), 84 O.R. (3d) 561, the
Ontario Court of Appeal considered the concept of
"accountability" in light of the combined effect of ss. 3, 38 and
72(1) of the YCJA.
At para. 42, the court stated that
accountability is achieved through the imposition of meaningful
consequences for the offender and sanctions that promote his
rehabilitation and reintegration into society. Accountability in
this context would seem to exclude accountability to society in
any larger sense or any notion of deterrence. At para. 43, the
court stated that this view of accountability is consistent with
the "offender-centric" nature of youth sentencing.
35
And at para. 46, the court stated that accountability in
this context is the equivalent of the adult sentencing principle of
retribution as explained in R. v. M. (C.A.), [1996] 1 S.C.R. 500.
Retribution in a criminal context represents an objective,
reasoned and measured determination of an appropriate
punishment which properly reflects the moral culpability of the
offender, having regard to the intentional risk-taking of the
offender, the consequential harm caused by the offender, and
the normative character of the offender's conduct. The court
further noted that unlike vengeance, retribution incorporates a
principle of restraint and that it requires a just and appropriate
punishment, and nothing more.
36
At para. 50, the Ontario Court of Appeal stated that the
Crown's burden is to satisfy the youth court judge, on
consideration of all relevant factors, that a youth sentence
would be of insufficient length to meet the requirement of
accountability as reflected in R. v. Ferriman, [2006] O.J. No.
3950 (Ont. S.C.J.) (QL), para. 38:
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. ...

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]

The Supreme Court of Canada, in R. v. D.B., 2008 SCC 25,

[2008] 2 S.C.R. 3, held that young persons, by virtue of their age,


are presumed to be less morally blameworthy and culpable than
adults as a result of their heightened vulnerability, lessened
maturity and reduced capacity for moral judgment. Nonetheless,
the seriousness of the offence and the circumstances of the
offender may justify an adult sentence (para. 77).

What the

presumption described in D.B. means is that before imposing an


adult sentence, the Crown must meet the burden of satisfying
the court that the presumption of diminished moral culpability
has been rebutted and the young person is no longer entitled to
its protection (para. 93).

[10]

Recently,

the

Manitoba

Court

of

Appeal,

in

R.

v.

Anderson, 2015 MBCA 30, [2015] M.J. No. 84 (QL), confirmed


that the onus of proof of satisfying the court that an adult
sentence should be imposed on a young person rests with the
Crown (s. 72(2) of the YCJA), but explained that there is no
requirement of proof beyond a reasonable doubt or proof on a
balance of probabilities.

Rather, the court is called upon to

exercise its judgment and make a reasonable prediction of [the

7
young persons] future behaviour based on an evaluation of all of
the evidence (para. 11).

[11]

I now turn to the factors identified for consideration in s.

72(1).
Seriousness and Circumstances of the Offences

[12]

On October 31, 2010, at approximately 2:50 a.m., C. was

driving a motor vehicle westbound on Bishop Grandin Blvd. in the


City of Winnipeg when she proceeded into the intersection at St.
Marys Road against a solid red light, striking a vehicle with five
occupants.

As a result of the collision, two of the occupants,

Senhit Mehari and Amutha Subramaniam, died, and a third,


Lysbeth Arthur sustained a traumatic brain injury.

A fourth,

Yohanna Asghedom, suffered significant injuries and emotional


trauma. A fifth victim, Eden Andu, had minor physical injuries
but still suffers from the emotional impact of the events of that
night; Ms. Andus injuries are not the subject of a criminal
charge. All of the occupants were young women whose friends
and families have been devastated by this tragic event.

[13]

I recognize that no sentence I impose, adult or otherwise,

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]

The following facts are agreed.

8
(a)

At the time of the collision:


(i)

C. was subject to a graduated drivers license which


prohibited her from driving when she had any alcohol

(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

physician, the expert opined that her blood alcohol


level at the time of the collision was between .09 and
(iii)

.12 mg%;
C.s ability to drive was impaired by alcohol but she

(iv)
(v)

did not realize it at the time;


She was texting on her Blackberry;
She was speeding, specifically travelling 96 km/hr

(vi)
(vii)

when the speed limit was 80 km/hr;


Her vehicle was on cruise control; and
There was no evidence of her braking or swerving to
avoid the collision;

(b)

Prior to the collision, C. had been at two parties; at the


second, she consumed free pours of Captain Morgan
rum. When she then went to get her keys to drive, some
friends attempted to take them from her, but she became
angry and took the keys.

She initially intended to drive

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)

One or two months prior to the collision when she was


sober, C. had conversations with a friend about the
dangers of drinking and driving; and about one week prior
to the collision, she received a text message from a friend
who expressed concern about her texting and driving;

(e)

On three to four prior occasions, C. had consumed alcohol


and then driven a motor vehicle, without consequence.
She also often texted and drove in the belief that she could
multi-task; she had a few close calls but continued to do
so; and

(f)

Provincial legislation making it an offence to text and drive


came into force in July 2010.

[15]

There is one fact that is in dispute. Crown counsel asserts

that C. planned to drink and drive that night. She asks me to


draw this inference on the basis of text messages C. exchanged
with a friend, that friends evidence at the preliminary inquiry
that she thought C. was going to drink and drive (which defence
counsel accepts as true); C.s history of drinking and driving; and
the fact that she did not have a plan for a designated driver.

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

by the Crown, it certainly raises suspicion that C. intended, from


the outset, to drink and drive. However, in order for this to be
established as an aggravating factor, Crown counsel must prove
it to the criminal standard of proof beyond a reasonable doubt
and I am not convinced that this standard of proof has been met.
In the key text messages relied upon by the Crown, the friend
said that she would take a taxicab home upon C. stating that she
would be drinking at the second party.

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]

Regardless of C.s plan, however, she clearly chose to drive

not only after consuming alcohol, but when her ability to do so


was impaired. And this was not a one-time event; she had done
so in the past. Further, while perhaps not planned, her choice to
drive after drinking was not entirely impulsive; she argued with
her friends when they tried to keep the car keys from her.

11

[18]

At the sentencing hearing, the victims friends and families

presented very moving victim impact statements. They spoke of


the two young women, Ms. Mehari and Ms. Subramaniam, who
were killed. They were both excellent students and contributors
to their community, quite simply fine individuals who were
beloved by their friends and families. Ms. Arthur, who sustained
a traumatic brain injury, described in a compelling way the
devastating injury which initially left her in a coma, then without
an ability to walk or talk for three months. She explained the
long and difficult journey of rehabilitation. She still has speech
deficits, and impairment to her gait and balance. Ms. Asghedom
described her physical injuries, which included whiplash as well
as hip, rib and elbow fractures. All three survivors described the
devastation arising from the events of October 31, 2010 and the
loss of their friends.
The Age, Maturity, Character, Background
and Previous Record of the Young Person

[19]

C. had turned 17 years of age about a month prior to the

collision.

She has no prior criminal record and has had no

criminal involvement since her release on these charges in


October 2010. Nor has she had a drivers license. She is single,
with no dependents, and has a high school education. She has
taken some university courses, worked at a variety of jobs, and is

12
currently employed full-time in a retail position. She resides with
a friend in a duplex owned by her mother.

[20]

In terms of her family background, she was born in

Winnipeg when her mother was 18 years of age; the mothers


boyfriend assisted in raising her, until he died in a motor vehicle
accident when the mother was 21.

C.s biological father was

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]

The father is now married to another woman with whom he

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]

C.s mother struggled with alcohol addiction. C. would look

after her mother when she was drinking.

The mother has

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]

C. reported to the probation officer who prepared the pre-

sentence report that alcohol consumption on the night in


question contributed to her poor decision to drink and drive. She
explained that she thought she was OK to drive and her
mindset was that its not going happen to me, although she
also

indicated

that

knew

the

consequences

and

how

dangerous it can be. In discussions with the probation officer,


C. took responsibility for her actions, stating that she was fully
aware of the laws around drinking and driving and texting and
driving, as well as speeding. However, she believed she could
break those laws without consequence.

[24]

C. also reported to the probation officer that, consistent

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

circumstances, I give his report no weight.

[25]

C. expressed to the probation officer empathy for the

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

questioned some of her conduct such as going to a local bar on


her 18th birthday and, in February 2011, posting a photograph on
Facebook of her at a party with friends who were drinking (there
is no evidence that she actually consumed alcohol on these
occasions, and I am unable to draw an inference that she did).
The probation officer concluded that although C. expressed
empathy for the families of the deceased, she questioned
whether C. fully appreciated the seriousness and impact of the
offences.

[26]

The probation officer assessed C. as a medium risk to re-

offend.

[27]

Since November 2010, C. has met regularly with a

psychologist, Dr. Leigh, who provided a verbal report to the


probation officer. Although C. told the probation officer that she
had been diagnosed with post traumatic stress disorder (PTSD),
Dr. Leigh reported that he had not made any formal diagnosis,
but also indicated that such a diagnosis would be wellreasoned. He further reported that C. has undergone periods of

15
depression and anxiety, and that she has demonstrated fairly
effective coping strategies.

He assesses her as a low risk to

engage in similar behaviour in the future. He does not view her


as now immature and irresponsible; rather, he stated that she
has managed significant distress. He also indicated that she will
need psychological support to move forward.

[28]

A court-ordered forensic assessment was prepared by Dr.

Brian Chaze, a psychiatrist with Manitoba Adolescent Treatment


Centre (MATC), Youth Forensic Services. C. reported to Dr. Chaze
that following the collision, she had episodic thoughts about
wanting to be dead or feeling hopeless, but never had any plan
or intent to kill herself. At the time of the assessment, Dr. Chaze
noted no difficulties with C.s mood, or her having thoughts of
self-harm or suicide.

No cognitive difficulties were noted.

However, she continues to experience flashbacks when travelling


as a passenger in motor vehicles, and also reported that she is
hyper-vigilant

around

motor

vehicles

and

experiences

exaggerated startle response and some physical symptoms of


anxiety when inside vehicles. Dr. Chaze concluded that she met
the criteria for PTSD, as well as attention deficit hyperactivity
disorder (ADHD), and that she would benefit from further
exploration and medical treatments for these conditions. He is
also of the view that she would respond well to psychiatric

16
interventions.

Since the forensic assessment, C. has seen her

family physician for treatment of both PTSD and ADHD.

[29]

Dr.

Chaze

also

reported

that

C.

takes

complete

responsibility for her actions and that she appears to be sincerely


remorseful. In his opinion, she appears to pose very little risk to
the general public in terms of potential for violence or for
repeating a similar type of nonviolent offence.

[30]

In a supplementary report prepared by Dr. Garry Fisher,

psychologist, also of MATC, he indicated that C.s feelings of guilt


and remorse appear genuine. He confirmed that she had some
developmental difficulties related to stability of relationships or
behavioural concerns in her early teens, and evidence of
previous attention regulatory problems.

He thought these

problems may have played a direct or indirect role in terms of


her vulnerability to being distracted and having difficulties
focusing. From a psychological or clinical point of view, he found
her functionality at the time of her involvement to be more
typical of an adolescent than adult in that she was residing at
home, attending high school, working on a part time basis and
participating in youth community activities.
Interests of Society

[31]

Given the seriousness of these offences, I must also

consider the interests of society in deciding whether to sentence

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.

Analysis and Decision

[32]

To allow the Crowns application, I must be satisfied that it

has rebutted the presumption of diminished blameworthiness


and met its onus of establishing that only the imposition of an
adult sentence would properly hold C. accountable for her
offending behavior.

[33]

Accountability involves a consideration not only of the

personal circumstances of a young person, but also the


seriousness of the offence (R. v. C.G.D., 2014 MBQB 142, 308
Man.R. (2d) 89).

[34]

In terms of the circumstances and seriousness of the

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]

Defence counsel says that C. did not intend to cause the

devastation she did, that is, she did not intend to kill or hurt
anyone; he attributes her bad choices that evening to her
immaturity.

While I do not believe C.s choices can be fully

explained on that basis, she clearly had sense of invincibility,


more common in young people, which played a significant role
here. While she knew that drinking and driving were bad, she
appears to have had no real understanding of the potential
consequences.

[36]

This was, in part, due to the poor role modeling by her

mother; her mother admitted as much in her submissions at the


sentencing hearing. On the night in question, prior to the first
party, C. exchanged text messages with her mother asking for
the Captain Morgan rum that was at home. Although her mother
told her not to drink, when C. responded that You know Im
drinking. Im not driving mom, her mother told her not to drink
too much and to stay in control.

Through this exchange, C.

19
essentially sought her mothers approval to take the rum from
home, and her mother seems to have largely acquiesced.

[37]

There are mitigating factors relating to C.s circumstances.

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.

She lived at home

with her mother, went to school, and had part-time employment.

[38]

At the sentencing hearing, there was much debate about

remorse. Crown counsel submits that C.s attitude following the


collision shows a real lack of genuine remorse. In particular, she
relies on the following agreed facts:

When being taken by ambulance to the hospital for minor


injuries following the collision, C. expressed no concern
about the victims, rather texted her friends about her
injuries and asked them to meet her at the hospital;

When C. was later transported to the Public Safety


Building, she asked the officer when she could get her
drivers license back. When the officer responded that it
was up to the courts, she said: my drivers license is very
precious to me;

20

When C. was released on an appearance notice, she


commented in connection with the condition that required
her to abstain from the consumption of alcohol: Does that
mean I cant drink on my 18th birthday?

She attended a bar for her 18th birthday and posted


photographs of partying on Facebook.

[39]

I agree that this behavior is grossly insensitive. But it is

only part of the picture.

Immediately after the collision, C.

expressed concern about the occupants of the other vehicle


when speaking to a woman who had stopped at the scene, and
asked repeatedly if they were all right (she also asked the
woman not to call her mother as she was already in enough
trouble).

As well, her closest friend, her mother and the

professionals all say that she is genuinely remorseful, and her


comments in court during the sentencing hearing also reflect
this. While Crown counsel says that these are only words and
that her actions are more revealing, I think it is fair to say that
there is clearly evidence of remorse although this is certainly
tempered by her earlier actions.

That said, it may be that

immaturity played a role in her initial approach to the matter.

[40]

In considering the adult sentence application, I must be

governed by the relevant authorities.

21

[41]

Crown counsel relies on R. v. D.S.D., [2006] M.J. No. 101

(Prov. Ct.) (QL), where such an application was allowed in the


context of the operation of a motor vehicle.

In D.S.D., the

Manitoba Provincial Court dealt with a 17-year-old who had


pleaded guilty to criminal negligence causing death, criminal
negligence causing bodily harm and failing to stop at the scene
of the accident. The circumstances were that he had been at a
party drinking, when he saw a woman kissing another male. He
became upset and threatened to kill himself. He fled the house
and before leaving stated that he would drive into another car.
He then attempted to do so, but the driver took evasive action.
He nonetheless continued at a high rate of speed and drove
directly into the victims vehicle killing him and causing serious
injuries to his wife.

The young persons blood alcohol level

exceeded the legal limit.

He had no criminal record, except a

prior conviction under The Liquor Control Act, C.C.S.M. c. L160


for consuming alcohol while under the legal age and for which he
was on probation at the time of the offence.

He expressed

remorse and demonstrated an acceptance of responsibility. An


adult sentence of four years was imposed.

[42]

Crown counsel also relies on B.L. in which this court

allowed an adult sentence application for a young person who


was a leader of three other youths. He directed them to conduct

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

significant risk to re-offend; he remained entrenched in the


criminal mindset.

The court concluded that the long-term

protection of the public will be best served by an adult


sentence (para. 86).

[43]

Crown counsel also submitted authorities dealing with

adult offenders in what she described as similar cases.

In R. v. Kummer, 2011 ONCA 39, 266 C.C.C. (3d) 32, the


Ontario Court of Appeal upheld concurrent sentences of
eight years in circumstances where an offender with no
prior criminal record but a highly relevant driving record,
operated a vehicle at extreme speed with a blood alcohol
concentration of over twice the legal limit, thereby causing
three deaths and injuries to two others. He had pleaded
guilty to impaired driving and dangerous driving causing
death, as well as impaired driving and dangerous driving
causing bodily harm.

23

In R. v. Purtill, 2013 ONCA 692, [2013] O.J. No. 5136 (QL),


the Ontario Court of Appeal, in very brief reasons, upheld a
sentence of six years for criminal negligence causing death
and bodily harm and impaired driving causing death and
bodily harm. The accused had a prior record for impaired
driving.

[44]

Crown counsel acknowledges that courts impose lengthier

sentences on adults than young persons given their increased


moral blameworthiness and the fact that, unlike under the YCJA
that was in effect at the time of these offences, the principles of
denunciation and deterrence are applicable in adult sentencing.

[45]

I also note that in R. v. Ruizfuentes, 2010 MBCA 90, 258

Man.R. (2d) 220, a decision of the Manitoba Court of Appeal not


tendered by counsel, the court held that, for adult offenders who
commit the crime of impaired driving causing death and who
have no prior convictions for drinking and driving or serious
personal injury offences, the range of sentence should be two to
five years. For those who are second or subsequent offenders,
the range moves up to four to eight years.

[46]

Defence counsel relies on a number of authorities where

young persons operated a motor vehicle in a manner that caused


one or more death, and received non-custodial sentences. The
defence authorities are summarized as follows:

24

In R. v S.S., 2003 BCPC 354, [2003] B.C.J. No. 2366 (QL),


the British Columbia Provincial Court sentenced a 17-yearold who was involved in drag racing in a residential area,
while intoxicated, which resulted in the death of his
passenger.

The young person came from a privileged

background and had two prior speeding offences.

The

court imposed a one-year custody and supervision order,


with the first eight months to be served in open custody;

In R. v. D.R.U., 2004 BCPC 120, [2004] B.C.J. No. 953, the


British Columbia Youth Court sentenced a 17-year-old for
criminal negligence causing death. The young person had
developed an alcohol problem following his mothers
death, and was drunk and speeding when he crashed a
stolen car, killing the passenger.
upbringing.

He had a difficult

He had pleaded guilty, expressed remorse

and made an exceptional attempt at rehabilitation.

The

court imposed a sentence of Intensive Support and


Supervision for a period of one year; the young person had
already spent what amounted to 12 months in custody;

In R. v. M.A.B., 2012 ABPC 87, [2012] A.J. No. 344 (QL),


the Alberta Provincial Court sentenced a 17-year-old to
two years of probation and 240 hours of community
service for dangerous operation of a motor vehicle causing

25
death. The young person was travelling at 182 km/hr. and
lost control of the vehicle.

He was a diligent student,

attended counseling and expressed genuine remorse;

In M.A.B., at paras. 49 and 50, the court noted R. v. B.


(S.M.) (2003), 40 M.V.R. (4th) 96, [2003] B.C.J. No. 1350
(BCPC) and R. v. N. (A.J.), 2004 BCPC 13, [2004] B.C.J.
No. 203. In B. (S.M.), a 17-year-old was sentenced to two
years of probation and 240 hours of community service for
dangerous driving causing the death of three persons and
injuring five others.

The young person was remorseful,

accepted responsibility for his behavior and apologized; he


had no prior record. In N. (A.J.), the court sentenced a
16-year-old on four counts of dangerous driving causing
the death of the four persons who were his passengers.
Again, the court imposed a sentence of two years of
probation and 240 hours of community service.

[47]

Finally, in R. v. I.R.N., 2011 MBCA 31, 262 Man.R. (2d)

267, the Manitoba Court of Appeal upheld a decision to deny an


adult sentence application and impose the maximum youth
sentence of three years in connection with a young person who
at age 14 committed criminal negligence causing death and
bodily harm. He had stolen a vehicle and engaged police in a
high speed chase. He eventually collided with a taxicab, killing

26
the driver and injuring the passenger.

He was subject to two

probation orders and was in breach of the curfew condition at the


time of the collision. He had numerous breaches of a condition
requiring participation in a support and supervision program. His
background included gang membership, repeated drug offences,
auto theft and breach of probation. He had served 26 months in
pre-sentencing detention, for which he was given no credit.

[48]

The

Crowns

cases

involving

adult

offenders

are

inapplicable to young persons, particularly because they take


into account the sentencing principles of denunciation and
deterrence, and they are factually different in any event.

[49]

Of the authorities submitted, only in D.S.D. did the court

impose an adult sentence on a young person for a driving


offence causing death.

However, in D.S.D., the young person

deliberately went out to try to strike another vehicle for the


purpose of committing suicide. And he did not stop after he had
struck one vehicle. Rather, he carried on to strike another, which
resulted in the death of the driver and serious injury to the
passenger. While C.s conduct was clearly dangerous, it resulted
from a number of very reckless acts rather than conduct
tending more toward the deliberate endangerment of the public
as was the case in D.S.D.

27

[50]

B.L. is a very different case, involving an entirely unrelated

offence and an individual entrenched in a criminal lifestyle who


presented a very significant risk to re-offend. C., on the other
hand, has shown progress in her efforts at rehabilitation, through
counseling.

She has developed insight and a sense of

responsibility, is amenable to treatment for her psychiatric


problems, and Dr. Chaze indicates that she is a good candidate
for rehabilitative measures.

[51]

Finally, there is I.R.N., where the Manitoba Court of Appeal

upheld a decision to deny an adult sentence application in


circumstances involving the operation of a vehicle by a young
person causing death and injury. Although there was only one
death in that case and the young person was only 14 years of
age, there were also many aggravating features which are not
present here such as the young persons extensive criminal
record and gang involvement.

[52]

Taking into account all of the circumstances including the

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]

Therefore, I dismiss the Crowns adult sentence application.

28
SENTENCES TO BE IMPOSED

[54]

Before deciding the appropriate sentence for each offence,

I must first determine whether the sentences are to be served


concurrently or consecutively. Counsel agree, and I accept, that
concurrent sentences are appropriate because the offences are
sufficiently related to form part of one single, continuous criminal
transaction (R. v. Wozny, 2010 MBCA 115, 262 Man.R. (2d) 75).

[55]

The youth sentences I impose must comply with all of the

principles in s. 38(2), including that they must: not be greater


than the punishment that would be appropriate for an adult; be
proportionate to the seriousness of the offences and C.s degree
of responsibility for the offences; and take into account all of the
aggravating and mitigating factors. I am also mindful that I must
consider all available sanctions other than custody that are
reasonable in the circumstances, and impose the least restrictive
sentences that will meet the purpose of sentencing under s.
38(1). The sentences must also be those that are most likely to
rehabilitate C. and promote a sense of responsibility in her and
acknowledge the harm done to the victims and the community.

[56]

It is common ground that the offences committed by C. are

violent offences within s. 39(1)(a) of the YCJA such that


custodial sentences are available.

In determining whether

29
custodial sentences are called for and the length of any such
sentences, I again turn to the authorities.

[57]

B.L., relied upon by the Crown, is of virtually no assistance;

it involved a different offence and a high-risk offender, and there


is no reported decision of the actual sentence imposed, only that
an adult sentence application was allowed. And, as I have said,
D.S.D. involved more deliberate action on the part of the young
person than was taken by C.

However, he also apparently

suffered from emotional frailty as evidenced by his suicide


attempt, and his actions had less severe consequences in that he
killed one person and injured another. While I.R.N. involved a
high-risk offender with a record, he received a three-year
sentence despite the fact that he had already served 26 months
in pre-sentencing custody.

[58]

So while D.S.D. and I.R.N. do not support an adult

sentence in the circumstances of this case, they indicate that a


lengthy custodial sentence can be appropriate for a young
person who causes devastation by the operation of a motor
vehicle.

[59]

The Crowns authorities dealing with adult offenders are

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]

As for the defence authorities, they indicate that courts will

impose non-custodial sentences on young persons who cause


death by the operation of a motor vehicle.

However, in those

cases, the young persons did not take as many reckless actions
as C. did.

As well, many are older decisions from other

provinces. As recognized by the Court of Appeal in Ruizfuentez,


albeit in connection with adults, there has been an incremental
increase in the length of sentence imposed for drinking and
driving offences in recent years because of societys abhorrence
for the often tragic circumstances that result when individuals
choose to drink and drive, thereby putting the lives and safety of
others at risk (para. 20). That said, I am aware that there are
recent cases where non-custodial sentences have been found to
be appropriate for young persons who cause death by the
operation of a motor vehicle (for example, M.A.B.)

[61]

Since counsel made their submissions in this case, two

additional

decisions

have

been

rendered

which,

although

involving adults, warrant comment. In R. v. Ali, 2015 MBCA 64,


the Manitoba Court of Appeal upheld a jail sentence of nine

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.

The accused had no prior criminal record and

favourable personal circumstances.

[62]

In R. v. Hansell, 2015 MBQB 109, this court sentenced a

19-year-old to 26 months in jail for driving with blood alcohol


over .08 causing death and dangerous driving, specifically,
texting while driving, causing death.

He killed one person.

Although the adult sentencing principles of denunciation and


deterrence were applicable, and denunciation was articulated as
a key consideration in determining the sentence (para. 22), there
are aggravating factors in the present case which did not exist in
Hansell, namely that C. was prohibited from driving with any
alcohol in her blood, was speeding and had her vehicle on cruise
control, and also caused more catastrophic consequences.

As

well, the accused in Hansell clearly received the benefit of


restraint given that he was a youthful first-time offender (para.
18).

[63]

Taking into account the particular circumstances of this

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.

Furthermore, I am satisfied that a lengthy custodial sentence is


required to meet those principles. C.s multiple reckless actions
on

October

31,

consequences.

2010

have

had

devastating

and

lasting

Although there is evidence of immaturity, she

was an older youth, 17 years of age at the time.

Despite the

importance of rehabilitation in the imposition of any youth


sentence and the inevitable difficulty associated with a custodial
sentence, I am satisfied that no reasonable alternative to a threeyear custodial sentence accords with the governing principles
and will hold C. accountable for her actions.

[64]

In imposing this sentence, I am very mindful of its impact

on C.s rehabilitation and re-integration. C. has made strides in


this area, and it is important that this continue. Pursuant to s.
89(1) of the YCJA, C. will serve her sentence at Headingley
Correctional Centre for Women.

Although there is some

programming available at that institution which may assist her,


for example, programs about processing and coping with trauma,
thinking awareness, alcohol addiction and life skills, I recognize
that it is limited. However, while serving her sentence, she will
be able to continue with the counseling she has received from
her psychologist. That psychologist will be allowed to attend the
institution

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]

In conclusion, I impose the maximum sentence allowed

under the YCJA, namely a three-year custody and supervision


order, with the first two years in custody and the final year under
supervision in the community on conditions, on each count of
criminal negligence causing death to be served concurrently.
This recognizes the seriousness of each offence, including the
context in which it was committed, that is, a second death and
two victims injured (see Wozny at paras. 63-65), as well as the
circumstances of C.

I also impose a two-year custody and

supervision order on each count of criminal negligence causing


bodily harm.

Again, as prescribed by the YCJA, the first two-

thirds of each of these sentences is to be served in custody and


the balance under supervision in the community on conditions.
These sentences are to be served concurrently to one another
and the sentences imposed in connection with the offences of
criminal negligence causing death.

[66]

Finally, as agreed, I make an order for the taking of bodily

samples for DNA analysis, and impose a driving prohibition for


five years, which is to follow C.s period in custody.

34

___________________________J.