The Court sentenced an Indigenous youth to a three-year period of supervised probation with community work, strict conditions, and directive rehabilitative measures for robbery, carrying a concealed weapon, theft, and failure to comply with a curfew imposed upon release on previous charges. His moral blameworthiness was attenuated by a constellation of mitigating factors, including impacts from FASD, ADHD, and Gladue circumstances. A jail sentence would not be meaningful for this youth. At best it would engender cynicism and hopelessness, at worst it would reconnect him with the negative influences that led to the offences and he would be released more of a danger to the community.
An Indigenous youth, C.P., pleaded guilty to robbery, carrying a concealed weapon, theft, and failure to comply with a curfew which was a condition of his release on previous charges. He was 17 years old when he committed the offences. The robbery and weapon offence involved an armed robbery of a convenience store by pointing an imitation handgun at the owner.
C.P. has suffered many of the sequelae of colonialism and residential schools in his family. He has a history of mental health problems, including bipolar disorder, a history of substance abuse, a low I.Q., and diagnoses of Fetal Alcohol Spectrum Disorder (FASD) and Attention Deficit Hyperactivity Disorder (ADHD). At the time of the sentencing hearing, there had not been a single breach of his conditions.
The maximum adult sentence for robbery is life in prison. The maximum youth sentence is three years. A deferred custody order is not available, because of the psychological harm caused to the victim, Mr. Kwon, as outlined in the Victim Impact Statement (VIS) (R v VJT et al, 2007 MBCA 45). Pointing a firearm, even an imitation firearm, at a lone worker in a convenience store is a serious offence which has been the subject of considerable jurisprudence that recognizes the particular vulnerability of such victims.
C.P.’s extensive pre-sentence report and forensic report describe that he is an Indigenous person, now 18 years old, from Lake Manitoba First Nation who grew up without a biological father and a mother who suffered from substance abuse and was physically violent towards him. He remembers a lot of alcohol, pills, cocaine and violence as a very young child. When he was nine years old, his mother tragically died in a motor vehicle accident. Due to behavioural difficulties, C.P. was placed in foster care and then the Knowles Centre where he attempted suicide. He suffered physical and sexual abuse by family members. Between 2016 and 2019, C.P. was in 29 placements. He was using methamphetamine daily for the three months before these offences, committing thefts to get money to buy more methamphetamine. C.P.’s education has been limited. There is a direct link between the disruption in his home life and the commencement of his offending behavior.
The principles and objectives of sentencing for young people are very different from adults. Section 50 of the YCJA explicitly states that section 718 of the Criminal Code does not apply to youth sentencing. Read in its totality, the YCJA emphasizes the use of non-custodial sentences rather than custody to hold young people accountable. Although treatment and rehabilitative services are usually available in custody, the negative influences of other youths with a history of offending and the fact that the youth’s problems cannot be addressed in their own environment result in it being more difficult to rehabilitate youths in custody than in community-based treatment and therapy. This is even more so during COVID-19.
A sentence that promotes deterrence but does not promote the rehabilitation of the young person would not be in accordance with the purpose of sentencing under the YCJA. In considering his circumstances as an Indigenous young person, C.P. has experienced in his young life and that of his ancestors every feature of post-colonial life. The provision in the YCJA that requires proceedings to occur in a timely fashion are in recognition of the fact that reduced moral culpability and development in young people mean that for consequences to be meaningful, they have to be close in time to the offending behavior. That is more so when the young person suffers from one or more diagnoses that affect their working memory, as is the case for C.P.
Sending him into a jail after being in the community on strict conditions for a year is not a meaningful sentence. At best, it could engender cynicism and hopelessness in the young person. At worst, housing him in a jail would reconnect him with the negative influences that caused these offences and he would be released more of a danger to the community. He is now 18 years of age. At some point during his custodial sentence, corrections officials could bring an application to have him transferred to an adult facility. Indeed, he recently spent two days in an adult jail.
C.P.’s prospects for rehabilitation are good. It will be a long path, but he has shown remorse and insight into his offences. He has consented to remain in care, acknowledging that with the support of the agency, he is better equipped to stay on a positive path. He is finally in a placement that is suitable to his needs, outside of the troubled places and people in Winnipeg that allowed and supported his criminal behavior. He has a Level 5 placement in a foster home, and all the resources. There is 24-hour staffed supervision and care in the home. He is enrolled in school. A non-custodial sentence and community work with strict conditions and directive rehabilitative measures properly balances the seriousness of the offence with C.P.’s degree of responsibility in committing it.