Date: 20100604 Docket: YO 09-01-29228

(Winnipeg Centre) Indexed as: R. v. I.R.N.

Cited as: 2010 MBQB 137

COURT OF QUEEN'S BENCH OF MANITOBA

IN THE MATTER OF: The Criminal Code of Canada AND IN THE MATTER OF: The Youth Criminal Justice Act B E T W E E N: HER MAJESTY THE QUEEN, ) Counsel: ) - and - ) BRENT DAVIDSON ) for the Crown I.R.N. ) ) EVAN ROITENBERG

young person. ) for the young person ) ) JUDGMENT DELIVERED: ) JUNE 4, 2010 DUVAL J. [1] The young person (I.R.N.) has entered a guilty plea to a charge of

criminal negligence causing death, pursuant to s. 220(b) of the Criminal Code

of Canada, R.S.C. 1985, c. C-46, and to a charge of criminal negligence causing

bodily harm, pursuant to s. 221 of the Criminal Code. With respect to the

former offence, the Criminal Code prescribes liability to a maximum term of

imprisonment for life; with respect to the latter offence, liability is to

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imprisonment for a term not exceeding 10 years. At the time of the offence,

I.R.N. was 14 years of age. The prosecution has given notice of its intention to

seek an adult sentence of six years, with a credit of 2:1 in respect of pre-

sentence detention. I.R.N. seeks the imposition of a youth sentence of eight

months in custody and four months under community supervision. A pre-

sentence report dated February 8, 2010 was prepared in respect of I.R.N.

Although the issue of placement is not yet before this court, Crown counsel has

candidly advised that if the court imposes an adult sentence, the Crown will be

taking the position that it be served in a youth detention facility until I.R.N.'s 20th

birthday.

[2] Pursuant to s. 42(2)(n) of the Youth Criminal Justice Act, S.C. 2002,

c. 1 (the "YCJA"), a youth justice court imposing a youth sentence in respect of

an offence for which the punishment provided by the Criminal Code is

imprisonment for life (offence of dangerous driving causing death) shall make a

custody and supervision order. The total of the periods are not to exceed three

years from the coming into force of the order. In respect of the offence of

dangerous driving causing bodily harm, the same subsection provides that the

total of the periods of custody and supervision are not to exceed two years from

the date of the coming into force of the order.

[3] I.R.N. is presently 16 years of age and has been detained in respect of

these offences at the Manitoba Youth Centre since his arrest on May 4, 2009.

The incident date was March 29, 2008.

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FACTS [4] A Joint Statement of Facts was filed as Ex. S-1 in these proceedings, as

follows:

1. At the time of this offence, I.R.N. was bound by a probation order,

imposed on February 8, 2008, which required that I.R.N. attend,

participate in, and complete the Intensive Support and Supervision

Program, amongst other conditions. As part of the Intensive

Support and Supervision Program, I.R.N. was bound by a curfew of

10:00 p.m. daily. Additionally, at the time of this offence, I.R.N.

did not possess any type of Manitoba driver's licence.

2. On March 29, 2008, at approximately 3:25 a.m., I.R.N., along with

a number of other offenders, was in attendance at the rear of 61

Edmonton Street. At this location, the offenders were in

possession of two stolen motor vehicles and many were ingesting

both alcohol and marihuana.

3. As a result of the commotion being raised by these offenders,

individuals contacted the Winnipeg Police Service, who, in turn,

dispatched a cruiser car to attend to this location.

4. When the marked police vehicle arrived on scene, the offenders

fearing arrests for possession of goods obtained by crime, amongst

other charges, decided to flee the area to avoid detection.

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5. I.R.N. entered through the driver's door of one of the two stolen

vehicles, specifically a 2005 black Chevrolet Avalanche (hereinafter

the "Avalanche"), along with six other offenders. The remainder of

the offenders fled in the second stolen vehicle.

6. I.R.N. quickly accelerated out of the parking lot, striking a guardrail

while exiting. The Avalanche, along with the other stolen vehicle,

proceeded northbound on Edmonton Street before turning

westbound on Portage Avenue.

7. On Portage Avenue, I.R.N. drove the Avalanche west at an

excessively high rate of speed until a collision occurred at the

intersection of Portage Avenue and Maryland Street. During the

short period of time that I.R.N. was travelling on Portage Avenue,

he proceeded through two sets of red lights at the intersections of

Portage Avenue and Sherbrook Street and Portage Avenue and

Maryland Street. The posted speed limit during the entirety of his

travels was 50 kilometres per hour.

8. The deceased, Antonio Lanzellotti (hereinafter "Mr. Lanzellotti"),

was in the course of his employment at the time of the collision.

While working as a taxi cab operator, he had attended to McPhillips

Street Station to pick up a fare. This fare, David Heller, was

seeking a ride home after completing his work at this location.

Mr. Lanzellotti's travels took him southbound on Maryland Street

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where he encountered a red light at Portage Avenue. After waiting

for this light to turn green, he proceeded to enter the intersection.

It is at this time that he was struck by the Avalanche, causing his

vehicle to roll a number of times before coming to rest. The

resting point of this vehicle was at the intersection of Portage

Avenue and McGee Street, which is approximately one block away

from the point of impact. Mr. Lanzellotti died almost instantly.

9. An autopsy was performed on Mr. Lanzellotti and the following

injuries were observed:

(i) multiple abrasions and contusions mostly on the left side of

his body;

(ii) hinge fracture of base of skull with wide separation;

(iii) laceration of base of cerebral hemisphere and midbrain;

(iv) traumatic rupture of descending thoracic aorta;

(v) laceration of liver and spleen;

(vi) fractures of left and right ribs, right tibia, left tibia and fibula,

pelvis, left temporal bone, and both clavicles.

10. At the time of impact, the Avalanche was travelling at 86 miles per

hour/139 kilometres per hour, as captured by the crash data

recorder seized from within the Avalanche.

11. Upon being involved in this collision, I.R.N., along with the other

offenders, was able to exit the Avalanche before police or other

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emergency personnel arrived at the scene. As a result of the

collision, I.R.N. had suffered a dislocated hip and was not initially

able to walk without assistance.

12. In relation to his injuries, I.R.N. initially advised Winnipeg Fire and

Paramedic Services personnel that he was walking down Portage

Avenue and was struck by debris from this collision. Later, while

being interviewed by the Winnipeg Police Service, he confirmed

that he was in the Avalanche at the time of the collision but denied

that he was the driver. Rather, he identified a different male (who

was not present in the Avalanche) as the driver.

13. Forensic analysis completed on September 19, 2008 located

unknown male DNA on the airbag which had been deployed from

the steering wheel at the moment of the impact. As a result, a

DNA warrant was authorized respecting I.R.N. and ultimately a

sample of his blood was seized for comparison to the unknown

male DNA.

14. In the interim, a direct indictment was signed on April 29, 2009.

I.R.N. was arrested on this direct indictment on May 4, 2009. He

maintained his position that he was not the driver of the vehicle

until he was presented with the results of the DNA analysis, which

had been received by officers on May 1, 2009, and which found

that I.R.N. was the donor of the unknown sample found on the

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airbag deployed from the steering wheel of the Avalanche. At this

time, I.R.N. admitted that he was the driver of the Avalanche at the

time of the collision and indicated that he did not observe the red

light at the intersection of Maryland Street and Portage Avenue.

15. Blood samples from I.R.N. were also analyzed by Forensic

Laboratory Services with the RCMP.

[5] Mr. Lanzellotti's spouse chose not to provide a victim impact statement

but advised Crown counsel that her life will never be the same and that she

could not endure further media attention. Although aware of the positions taken

by both Crown and defence counsel in respect of the sentence to be imposed,

she sated that nothing will bring back her husband to her. The other victim, who

was a passenger in the taxi cab being driven by Mr. Lanzellotti and who

sustained injuries, also declined to provide a victim impact statement.

THE YCJA [6] There is no issue that the offences constitute "serious violent offence(s)",

as defined in s. 2 of the YCJA. In determining whether a youth or adult

sentence is appropriate for the particular young person, s. 72(1) of the YCJA

mandates that:

... 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 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 sufficient length to hold the

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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.

[Emphasis supplied]

[7] Section 3(1)(b) sets out the principles and purposes of the criminal justice

system for young persons. It states that this system must be separate from that

of adults and emphasize the following:

(i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the

greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are

treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending

behaviour and its consequences, and (v) the promptness and speed with which persons responsible for

enforcing this Act must act, given young persons' perception of time.

[8] With respect to measures taken against young persons who commit

offences, the YCJA provides, at s. 3(1)(c), that, within the limits of fair and

proportionate accountability, these measures should:

(i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community,

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(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and

(iv) respect gender, ethnic, cultural and linguistic differences and

respond to the needs of aboriginal young persons and of young persons with special requirements; ...

[9] The YCJA sets out the following principles at s. 3(1):

3. (1) Policy for Canada with respect to young persons — The following principles apply in this Act: (a) the youth criminal justice system is intended to

(i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour,

(ii) rehabilitate young persons who commit offences and

reintegrate them into society, and (iii) ensure that a young person is subject to meaningful

consequences for his or her offence in order to promote the long-term protection of the public;

. . . . .

[10] Section 72(1) of the YCJA requires the court to consider s. 38, which sets

out sentencing principles and factors to be considered when sentencing a young

person. Section 38 provides, 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:

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(a) the sentence must not result in a punishment that is greater than

the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the

region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the

offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in

the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; 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.

(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

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(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.

EVIDENCE [11] This court heard evidence from Officer Ken Kavitch of the Winnipeg Police

Service Auto Theft Project in respect of statistics kept by members of the

Winnipeg Police Service Stolen Auto Unit and of the Auto Theft Project. They

relate to reported attempted and actual auto thefts in Winnipeg during the

period from January 1, 2006 to March 29, 2008, and to both youth and adult

arrests during this period by the Winnipeg Police Service Stolen Auto Unit. Both

counsel agreed that this evidence is only relevant to the issue of general

deterrence if the court determines that a youth sentence would not have

sufficient length to hold the young person accountable, as the principles of

general and specific deterrence are not applicable to young offenders under the

YCJA. See R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27, [2006] 1 S.C.R. 941.

[12] This court also heard the testimony of Ms. Cheryl Lynne Dyck, a youth

probation officer. She prepared a pre-sentence report (Ex. S-2), compiled

February 8, 2010. The prosecutor applied for and was granted leave to cross-

examine Ms. Dyck pursuant to s. 40(6) of the YCJA.

[13] I.R.N. was subject to two probation orders at the time he committed

these offences. Each probation order was to be supervised for 12 months. The

first probation order was made on October 17, 2007 and the second on February

8, 2008. In respect of the first probation order, I.R.N.'s lack of cooperation with

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Probation Services is described as "blatant". He did not complete the 50 hours

of community service work as ordered.

[14] At the time of the commission of these offences, I.R.N. was being

supervised by Probation Services through their Intensive Support and

Supervision Program which was mandated to provide extended monitoring of

I.R.N. High risk youth are automatically put into this program for a minimum of

three months. Further, high and very high risk youth who have gang

involvement are monitored through the Spotlight Program. I.R.N. was also

placed in that program and a street mentor was assigned to assist him. A street

mentor is a person other than a probation officer, to whom a young person can

turn for guidance and assistance. This mentor's responsibility is to try to effect a

young offender's rehabilitation into the community. The Spotlight Program also

draws on the assistance of the Intensive Support and Supervision Program

workers who monitor a young person and advise the responsible probation

officer if a young person fails to comply with any conditions of his/her probation

order. The probation officer then decides if a young person's breach(es) will be

reported to the police. Ms. Dyck confirmed that the Intensive Support and

Supervision Program workers and the street mentor work with her as a team, but

it is her responsibility to decide whether to report I.R.N. for a breach or breaches

of his probation order.

[15] Ms. Dyck advised that Probation Services has established a policy whereby

a young person is not automatically reported when he fails to comply with a

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condition of his probation order. The policy requires that a pattern of non-

compliance must be established, and that, firstly, the probation officer makes

efforts to regain compliance. Ms. Dyck had no personal involvement in the

establishment of this policy.

[16] Ms. Dyck was questioned with respect to whether she would contact the

authorities to advise of a breach of a probation condition that a young person

not consume alcohol, if that person was intoxicated in her presence. She stated

that in her experience of 14 years, she does not recall a person being "so

intoxicated" that she would have called the authorities to report a breach. She

advised that even where individuals are required to report to the probation

officer, but fail to attend, she would not immediately advise the authorities of the

breach but would try to locate the individual, determine the reason for the failure

to attend, and reschedule. She stated that Probation Services does not send

letters to persons on probation when they fail to attend a scheduled

appointment.

[17] In respect of curfews, she indicated that Probation Services does not

report a first failure to abide by a curfew condition. A pattern of non-compliance

must be established based on the Probation Services' policy. When asked what

constituted a "pattern of non-compliance", she indicated that a number of factors

would be considered before reporting a breach, including the individual's risk

level, whether a young person was living with a parent who was cooperating

with authorities, the probation officer's knowledge of a young person, and

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"proof" of the failure to comply. The decision that a pattern of non-compliance

has been established is solely within the discretion of the probation officer.

Ms. Dyck stated that Probation Services knows how to monitor orders and acts

within its discretion.

[18] The probation order of October 17, 2007, granted by a provincial court

judge, required I.R.N. to attend school regularly, to complete 50 hours of

community service work within nine months, and to abstain absolutely from the

consumption or possession of illegal drugs or alcohol. The probation order

issued by another provincial judge on February 8, 2008, required I.R.N. to

attend, participate in, and cooperate with the Intensive Support and Supervision

Program, present himself at the door or by telephone in person to comply with

the curfew requirements, attend school regularly, and have no contact or

communication with certain named persons, unless in the presence of his father

or other authorized adult. The curfew was between the hours of 10:00 p.m. and

7:00 a.m. The incident which led to the convictions before the court, occurred in

the early morning hours of March 29, 2008. He had been released from custody

at the Manitoba Youth Centre on February 25, 2008.

[19] Ms. Dyck was advised by I.R.N.'s father and by the Intensive Support and

Supervision Program worker that I.R.N. was reporting by telephone, before

10:00 p.m., but thereafter leaving his father's home and not returning until the

next evening. Breaches of his curfew, reported by his father after a number of

instances, had occurred on March 9, 13, 14, 21, and 22, 2008, to her knowledge.

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Further, I.R.N. had not been attending school regularly as required by the terms

of both probation orders, to the knowledge of his probation officer. He was

sometimes attending in the morning, but never in the afternoon, and on other

days he failed to attend at all. Ms. Dyck scheduled a meeting on March 26, 2008

with I.R.N. and his father, and advised I.R.N. that if any further breaches

occurred, his breach(es) would be reported to the authorities. Although

Ms. Dyck was aware of I.R.N.'s non-attendance at school on some days and

partial attendance only on other days, she did not report a breach to authorities

'as long as he was still going'. She stated that Probation Services were trying to

find another school where he would like to attend. On March 26 and 27, he

appeared to be on track and complying with his curfew conditions. On March 28,

he again breached his curfew condition and was involved in the incident before

the court.

[20] Further, I.R.N.'s father raised concerns with the probation officer in

February of 2008 respecting a breach of his probation order by possessing illegal

drugs. Ms. Dyck stated that despite the information from the father, they 'could

not prove' that he was breaching his probation order by consuming or possessing

illicit drugs. I.R.N. never attended to her office "drunk or high". She felt that

they were reaching him and that any consumption of alcohol or drugs was not a

high risk factor for I.R.N.

[21] Ms. Dyck stated that were it not for his family relationships, I.R.N. would

not be considered a high risk to reoffend, but rather a medium risk. He is,

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according to staff at the Manitoba Youth Centre, a member of the Mad Cowz

street gang. He advised the probation officer that he is closest to his older

brother M.N., with whom he is closest in age. They share the same father. M.N.

is a member of the Mad Cowz street gang and a very negative influence. He is

presently being held in custody in Calgary, Alberta on pending charges. I.R.N.

was also very close to his "cousins", Al.B. and Ad.B. It is noteworthy that he was

to have no contact or communication with one or the other of these cousins

when placed on probation on October 17, 2007. His step-siblings include Chris

Amyotte, Evan Amyotte, and Cory Amyotte, all of whom have been involved in

criminal activity.

[22] I.R.N. has been detained at the Manitoba Youth Centre since his arrest

and for approximately one year. When previously held in custody and during

this one-year period, he has behaved well. He has been lodged in a unit with

young persons who are affiliated with various street gangs. The probation report

indicates that he does not allow his membership in the Mad Cowz street gang to

influence how he interacts with his peers, and on two occasions has gone out of

his way to mediate conflicts between his gang and rival gangs.

[23] The pre-sentence report makes reference to a Manitoba Youth Centre

Resident Progress Review which opines: "[I.R.N.] has the ability to be a positive

role model, and on many occasions has done just that in Thunderbirds unit.

Most recently there was an incident in Thunderbirds unit in which two residents

became involved in a physical altercation in the washroom, and [I.R.N.] out of

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his own will assisted staff in breaking up the fight before anyone was injured.

[I.R.N.] has really shown that he understands the meaning of diplomacy, and

has proven on many occasions that he would like to resolve any conflict that he

may have with his peers as peacefully as possible."

[24] The Manitoba Youth Centre Resident Progress Review indicates that I.R.N.

has attained the "trust level" in the unit, the highest level that can be achieved.

To obtain this designation, I.R.N. must have proved himself over a lengthy

period of time, showing a desire to change his life and role model positively

within the unit on a daily basis. I.R.N. completed a relapse prevention plan with

his case manager. Also, the designation occurred after interviewing I.R.N.'s

peers within the unit to determine if he was deserving of the "trust" status. The

Review opines that I.R.N. has matured significantly during his time in custody

and shows great potential in many areas and has the ability to live a positive

lifestyle. The probation officer reviewed five incident reports of the Manitoba

Youth Centre staff in which I.R.N.'s name appeared and confirmed that there

was no indication of misbehaviour on his part, although he may have been

present or intervened positively.

[25] In addition to the previously mentioned program, I.R.N. has completed

programs in Thinking Awareness, Aggression Replacement Training, and Youth

Substance Abuse Management. He has been working on earning grade nine

credits and has also earned a half credit in grade 12 consumer mathematics.

The educational curriculum offered at the Manitoba Youth Centre is not identical

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or the equivalent of courses offered in the general public school system,

according to Ms. Dyck. However, I.R.N. demonstrates aptitude and the

intelligence to earn a grade 12 diploma. His teacher advised Ms. Dyck that he

was very focused on earning his grade 12 diploma and could do so with ease.

He is very astute, learns the concepts quickly, and applies them accurately. He

responds well to encouragement but needs positive reinforcement to keep him

motivated.

[26] The probation officer states at pp. 7-8 of the pre-sentence report, as

follows:

[I.R.N.] responded maturely and respectfully when interviewed. He is clearly a young man with lots of potential. Whether he will learn from this tragic experience or not remains to be seen but it is evident that [I.R.N.] feels remorse for his actions. [I.R.N.] was able to verbalize and provide written responses which reflect that he has matured, that he has spent time thinking about the victims he created and about how he will make better choices in the future. [I.R.N.] has not always accepted responsibility for his actions, but appears to have made progress in this area; perhaps due to the developmental stage he is at or perhaps institutional programming and involvement with caring, experienced correctional workers can be credited for this positive change in [I.R.N.]. In custody, he has responded very well to structure and it would seem that he has learned a great deal. ...

[27] The probation officer opined that I.R.N. has had less than ideal

supervision and guidance from both of his parents, who are divorced. He is the

youngest of seven children born to his mother. All of the siblings have criminal

records and most are gang members. Those closest to him have had very

serious involvement with the legal system. The probation officer believes that

with evolving maturity, I.R.N. will be less susceptible to negative influence.

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Although his father is regularly employed and has been the consistent parent in

this young person's life, he has been ineffective, despite his good intentions, in

positively influencing and controlling his son. Although his father has indicated

an intention to relocate to a more pro-social neighbourhood when I.R.N. is

released from custody, he has made that suggestion in the past and has not

followed through. Nevertheless, his father has realized that protecting his son by

not reporting breaches of his probation orders and not providing consequences

for his son's negative behaviour is not in his son's best interests. He is

committed to helping I.R.N. by being a better parent.

[28] I.R.N. was 14 years of age at the time of the commission of these

offences. He indicated to the probation officer that he was "not thinking about

the future then, but now, as I sit in MYC, I think a lot about the victim and his

family and I feel very sorry for them." He has written to the probation officer, as

follows:

I wish I could have did something different that night, but I made that mistake and now I can learn from it. ... right now if I could have anything in life, it would be to bring back Tony L. ... a lot of times when I sit in my room I pray for his family for something good to happen with them. But that's the most I can do.

[29] I.R.N. has responded favourably to his street mentor and has expressed

the intention of attending school and becoming involved in sports when he is

released from custody.

[30] Ms. Dyck supports a transfer to Agassiz Youth Centre after a sentence is

imposed. There, he would be eligible for intensive programming to deal with

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issues that have brought him into conflict with the law. She suggests close

supervision when he begins to reintegrate into the community, i.e., the Intensive

Supervision and Support Program, having a Spotlight Unit worker, and being

supported by his street mentor. I note that all of these resources were provided

to him before his involvement in this incident. She now suggests, at p. 9 of her

report, that "[h]e needs to be held immediately accountable for his actions as he

re-integrates." She notes that because he has never been sentenced as a young

offender to a custodial sentence, he has not had the benefit of programming

available for sentenced youth.

PRIOR YOUTH RECORD [31] On October 17, 2007, I.R.N. was found guilty of possession of a Schedule

II substance for the purpose of trafficking [s. 5(2) of the Controlled Drugs and

Substances Act, R.S.C 1996, c. 19 (the "CDSA")], for which he was placed on

probation for 12 months. On February 8, 2008, he was found guilty of three

counts of failing to comply with a previously imposed sentence, one count of

take auto without owner's consent, two counts of failing to comply with an

undertaking, one count of failing to appear, and one count of possession of a

controlled drug [s. 4(1) of the CDSA] for which he was sentenced to 21 days of

pre-sentence custody and 12 months of supervised probation.

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THE LAW [32] The onus rests on the Crown to satisfy the court that a youth sentence

imposed in accordance with the purpose and principles set out in subpara.

3(1)(b)(ii) and s. 38 of the YCJA would not have sufficient length to hold I.R.N.

accountable for his offending behaviour. In R. v. D.B., 2008 SCC 25, [2008] 2

S.C.R. 3, the Supreme Court of Canada determined that the Crown bears the

onus throughout the proceedings.

[33] Section 72(1) of the YCJA requires the court to consider a number of

factors.

1. The seriousness and circumstances of the offence

The circumstances surrounding the commission of the offences are

particularly egregious and have a high level of moral blameworthiness. In

breach of two probation orders, I.R.N. was out past his curfew during the early

morning hours, was consuming alcohol, and spending time with a number of

other offenders, who were in possession of two stolen motor vehicles and raising

a commotion. When marked police vehicles attended at the scene, all of the

offenders decided to flee. I.R.N., despite the fact that he did not possess any

type of driver's licence, took the driver's seat of one of the stolen vehicles, while

six others jumped in. While accelerating out of the parking lot, he struck a

guardrail and then proceeded to drive at excessively high rates of speed (139

kilometres per hour) through two sets of red lights. The posted speed limit on

city streets is 50 kilometres per hour.

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The deceased, Mr. Lanzellotti, was driving a taxi cab in the course of his

employment and was facing a green light when he entered the intersection and

was struck broadside with such force that his vehicle rolled a number of times

before coming to rest one block away from the point of impact. He died almost

instantly, having sustained multiple injuries, including fractures of left and right

ribs, right tibia, left tibia and fibula, pelvis, left temporal bone and both clavicles;

hinge fracture of the base of the skull; laceration of the base of the cerebral

hemisphere and midbrain; traumatic rupture of descending thoracic aorta;

laceration of the liver and spleen; and multiple abrasions and contusions.

Mr. Lanzellotti's passenger, who was travelling in the taxi after completing his

work, was also injured.

Additionally appalling is I.R.N.'s behaviour after being involved in this

collision. Having suffered a dislocated hip, he was not initially able to walk

without assistance, and advised the Winnipeg Fire and Paramedic Services

personnel that he had been struck by debris from the collision while walking

down Portage Avenue. Later, when interviewed by Winnipeg police officers, he

said that he was a passenger in the Avalanche at the time of the collision but

denied that he was the driver. Further, he identified another person, who was

not present in the vehicle, as the driver.

The collision occurred on March 29, 2008. Subsequently, a DNA warrant

authorized the taking of a sample of I.R.N.'s blood. On September 19, 2008, a

comparison was made to DNA found on the airbag which had deployed from the

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Avalanche's steering wheel. It confirmed that I.R.N. was the driver of the

vehicle. He was not arrested until May 4, 2009. He maintained his position that

he was not the driver of the vehicle. It is only when confronted with the DNA

evidence by the police that he admitted that he was the driver and again

excused his conduct by stating that he did not see the red light at the

intersection.

2. Previous record of I.R.N.

Approximately six weeks before this incident, I.R.N. had entered a guilty

plea to take auto without owner's consent and to a number of charges relating to

failing to comply with court orders. As a young offender, he had two convictions

relating to breaches of the CDSA.

His conduct while on probation for these previous offences was similar, in

that he continued to breach conditions of his probation orders. His previous

record was incurred while he was only 13 and 14 years of age.

3. Age

At the time of the offence, I.R.N. was 14 years of age and is now 16 years

of age.

4. Maturity

I.R.N.'s behaviour at the time of these offences and prior thereto

demonstrate a lack of maturity and total lack of cooperation with any person in a

position of authority, including his father and probation officer. He appears to

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have matured significantly during his stay at the Manitoba Youth Centre and staff

have expressed the opinion that he is very mature for his age of 16 years.

5. Character and background

At this time, I.R.N. appears to have matured and interacts with staff of

the Manitoba Youth Centre in a respectful manner and abides by the rules and

regulations of the detention centre. He appears to be genuinely remorseful and

desirous of planning for a productive and positive future. All of his growth in

maturity and progress has occurred during his stay in a controlled environment.

It is of positive note that when faced with conflict within his residential unit, he

has been a positive influence amongst his peers in arriving at a peaceful

resolution.

A significant factor which continues to concern this court in respect of risk

management is I.R.N.'s family. His siblings are street gang members, as is he.

At school, I.R.N. had no friends. All of his associations have been with his

siblings and other offenders whom he has met through stays at the Manitoba

Youth Centre. Of positive note is the fact that he communicates with his sister,

J., who is viewed as a positive influence by the probation officer. However, it is

evident that once released into the community, I.R.N. will be faced with serious

negative peer pressure. According to the probation officer, alcohol and/or drug

abuse is not a concern.

[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

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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:

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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. ...

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.

[37] In addition to the factors reviewed at para. 33, other factors which I

consider relevant for consideration in determining whether a youth or an adult

sentence should be imposed are, as follows:

(i) the high moral culpability of the young person, including his denials

of any responsibility for his conduct in committing these offences

until faced with undeniable evidence;

(ii) the impact of the crime on the family of Mr. Lanzellotti and the

immeasurable toll on the life of his spouse;

(iii) the period of 13 months of detention in respect of these offences in

a youth facility prior to sentencing;.

[38] The Crown relies on the decision of Burrill Prov. J. in R. v. B. (A.A.), 2006

NSPC 4, 31 M.V.R. (5th) 135, in which a young person, aged 16 years of age at

the time of the offences, stole a motor vehicle and drove around with friends

after having smoked marihuana. When pursued by the police, the young person

did not stop at a stop sign, sped through a red light at an intersection and

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collided with a vehicle, killing the driver. He continued to flee on foot. He had

been facing 36 Criminal Code charges and two Motor Vehicle Act charges at

the time. He pleaded guilty to criminal negligence in the operation of a motor

vehicle causing death, and flight in a motor vehicle from pursuing police officers

causing death. The Crown's application for an adult sentence was granted. The

court considered the factors set out at s. 72(1) of the YCJA. Given the

seriousness of the offence and the circumstances of its commission, together

with various other factors, the court considered that a sentence of three years as

recommended by the defence would be of insufficient length to hold the young

person accountable for his offending behaviour. An adult sentence of 54

months' incarceration concurrent on each of the two offences was imposed.

Some credit for pre-trial custody was granted.

[39] The Crown also referred to the decision of Bernard J. in R. v. P. (D.D.),

2006 BCSC 1198, [2006] B.C.J. No. 1779 (QL), in which a 16-year-old young

person stole a vehicle after breaking into several cars, and stole gasoline at a gas

station, driving away without paying. He had been drinking throughout the

course of the day and was intoxicated. He was unlicenced at the time. Because

he thought that the gas attendant was going to phone the police, P. suddenly

accelerated to drive away and the right side of the vehicle struck the gas

attendant, knocking him to the ground. The car ran over the attendant who was

caught in the undercarriage. He was dragged for 7.5 kilometres. P. was aware

that he had struck someone but continued to accelerate away. He was an

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Aboriginal person raised by foster parents and had prior convictions for mischief

and possession of a stolen vehicle. P. had left his aunt's home because he

resented having been grounded by her and he had dropped out of school some

months prior to the commission of the offence. He had been in custody for 14

months prior to being sentenced. He pled guilty to manslaughter and was

sentenced to nine years less a credit of 21 months for pre-trial custody. The

court considered that his moral culpability was high and deserving of retribution

and denunciation. The court held that he had engaged in a course of unlawful

conduct which posed substantial risk to public safety. Although his difficult

background explained his behaviour, it did not excuse it. The sentence was

ordered to begin in a youth custodial facility.

[40] On review by the British Columbia Court of Appeal [2007 BCCA 206, 218

C.C.C. (3d) 298], the sentence was reduced to seven years imprisonment. The

court noted that the sentence was fit, but for the young person's age. The

sentencing judge had made an error in principle, as he did not address the

young person's rehabilitation and reintegration, nor his greater dependency and

reduced level of maturity.

[41] At para. 85, Saunders J.A. stated for the court, as follows:

Yet Mr. P. is a 16-year-old offender for the purposes of fitness of sentence, not yet an adult in the eyes of the law. He is entitled to some mitigation of sentence, in my view, in recognition of his lack of full maturity in circumstances in which he is considered a good candidate for rehabilitation and reintegration into the community. Balancing this is the requirement that the sentence must reflect the seriousness with which the Court and the community view his crime, and it must speak to denunciation and deterrence.

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[42] The Court of Appeal credited him at a ratio of 1:1 for pre-sentence

custody. The sentencing judge had credited him at a ratio of 1:1.5. Saunders

J.A. referred to the statement of Finch C.J.B.C. in R. v. V. (D.D.), 2005 BCCA

396, 198 C.C.C. (3d) 484, that:

In my view, the usual "rule of thumb" for crediting pre-trial custody for adults at the rate of 2 to 1 does not apply in the context of young offenders who have had access to and full benefit of programming while in pre-trial custody. ...

[43] In R. v. N.W.P., 2008 MBCA 101, 231 Man.R. (2d) 61, Monnin J.A., for

the court, held that a sentencing judge must consider the time spent in detention

in determining an appropriate sentence, but is not bound, especially in cases

where the maximum sentence or near maximum sentence is imposed, to give

any credit to the young person for that time spent in detention.

[44] The Crown also relies on the decision of the Provincial Court of

Saskatchewan in R. v. Waylon James Starr, (transcript of oral reasons for

sentence delivered by Halliday P.C.J. on October 26, 2007). Mr. Starr was 17

years of age on the date of sentencing. Together with an adult person, he had

stolen a vehicle in front of a witness who was clearly watching them, and

proceeded to a gas station. When approached by a police officer with a drawn

police revolver, he drove the vehicle away, clipping the officer with the vehicle in

the process. He led the police in a pursuit which reached very high speeds, and

deliberately drove head on into oncoming traffic in an attempt to force other

vehicles out of the way. He eventually collided with a van in which a 10-year-old

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child was a rear seat passenger. His peer influence had been negative and he

had chosen and preferred to maintain pro-criminal relationships. He

acknowledged that he had been a gang member. Members of his community

and his parents had attempted to help him make positive changes, but he

considered crime to be a source of excitement. Substance abuse, both alcohol

and drugs, was a major factor in the offences before the court. Although he had

attended for treatment, he continued thereafter to seriously abuse these

substances. He had previously been sentenced as a youth on six occasions and

his record included convictions in respect of theft of vehicles. His record was

lengthy, entrenched, and serious, and he had previously been involved in two

police chases. He had clearly demonstrated non-compliance with court orders.

Despite community supervision, he continued to reoffend regularly.

[45] Mr. Starr was intelligent, capable of pursuing his education, quite likeable,

and could be very respectful. He had been diagnosed with attention deficit

hyperactivity disorder and was considered psychologically immature and in need

of very skilled counselling. With respect to the offence of criminal negligence

causing death, an adult sentence of seven years and seven months was

imposed. Halliday P.C.J. noted that had it not been for Mr. Starr's youth and for

some of the factors which had rendered his personal situation very difficult, the

court would have imposed a lengthier sentence. He was credited at a ratio of

1:1 in respect of pre-sentence detention in the youth facility where access to

programming had been available.

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[46] Defence counsel relies on the decision of Williams P.C.J. in R. v. C.S.,

2008 NSPC 22, [2008] N.S.J. No. 218 (QL). The female youth, 14 years old at

the time of the offence, entered a guilty plea to charges of aggravated assault

and breach of probation. She played a major role in the brutal beating and

torturing of a young woman for the better part of an hour. Two other females,

one an adult and the other also 14 years of age, were involved. C.S. admitted to

striking the victim first with a closed fist. Thereafter, she and the others struck

the victim repeatedly in the face with their fists and feet. C.S. admitted to

putting a cigarette out in the victim's ears and to having taken a lighter to her

feet. Further, the group was responsible for striking the victim with a belt buckle

and shoes and for lighting her hair on fire. She received burns to her face and

ears, sustained a broken eye socket and a broken nose, her face was swollen

and her right eye was swollen shut.

[47] The court reviewed a pre-sentence report and a psychological

assessment. Further, a follow-up report by the psychologist was prepared in

respect of a potential two-year intensive treatment program, delivered in

collaboration with corrections and probation services, which could address

multiple areas of need across multiple domains of the young person's life,

including family relationships, academic issues, peer relationships, recreational

activity, and attitudes and values. The young person had spent eight months in

pre-sentence custody. She was now 15 years of age. She had not had the

benefit of consistent structure, supervision or controls for much of her life. Her

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social and moral development had been compromised and she was likely to place

herself in high-risk circumstances and company. She straggled within the school

system and lacked insight and maturity in relation to her need for substance

abuse assessment and counselling. The psychological assessment suggested

that she was still malleable and still developing an identity. Although the expert

expected that her personality, values, and attitudes were still evolving and

should be amenable to change, she had spent the past several years "embracing

and demonstrating oppositional and antisocial behaviour" which would require

sustained and intensive interventions over an extended period of time (para. 24).

She had previously been convicted and placed on 10 months' probation and five

hours of community service for a common assault, a robbery, and a failure to

comply with conditions of an undertaking, offences which bore a striking

resemblance to the facts of the aggravated assault. Probation had not proven

successful during the period of time that C.S. was in the community. She had

failed to keep most of her appointments with her probation officer and had not

been compliant with her conditions of probation and was not attending school.

[48] The sentencing judge noted, at para. 61, that there had been a variety of

cases where youth had been sentenced for the same offence committed in

somewhat similar circumstances in the region, not one of which was subject to

an application by the Crown for an adult sentence.

[49] At para. 66, he opined that accountability was to be determined not only

by the length but also by the rehabilitative intensity that a sentence might

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provide. He referred to s. 83(1)(b) of the YCJA, which provides that the

purpose of the youth custody and supervision system is to contribute to the

protection of society by assisting young persons to be rehabilitated and

reintegrated into the community as law-abiding citizens, by providing effective

programs to young persons while they are in custody and are under supervision

in the community. Institutionalization had been noted, by the psychologist, to be

a real concern, especially with someone as young as C.S. (para. 67).

[50] At para. 72, the court concluded that the ability to redirect C.S. by

challenging her attitudes and beliefs, supported by the implementation of

intensive support and supervision, and the prospect of funding for an intensive

treatment plan, led to the conclusion that a youth sentence of two years duration

was preferable to a lengthier adult sentence that had less to offer in terms of

intensive support and supervision or an intensive treatment plan. I note that the

intensive treatment program which was available to C.S. was a significant factor

in the court's decision to impose a youth sentence.

[51] Defence counsel submits that the young person who recklessly and

irresponsibly breached his curfew, drank alcohol, and drove at excessive rates of

speed was a different young person from the one who now appears before the

court, now more mature and remorseful. He argues that the Crown bears the

onus of satisfying the court that a youth sentence would not have sufficient

length to hold I.R.N. accountable for his offending behaviour and that there is no

evidence that any longer period of time than one year would be required for any

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needed programming. He submits that at 14 years of age and lacking maturity,

I.R.N. did not appreciate the help and advice provided to him at the time by his

family, his probation officer, and others, but that he has now achieved a greater

level of maturity. Counsel argues that if an adult sentence is imposed,

publication of I.R.N.'s name could negatively affect his rehabilitation. He relies

on the following statement of Miller P.J.C., of the Alberta Provincial Court, in R.

v. J. (B.), 2009 CarswellAlta 1299, at para. 25:

In applying the onus, it is important the Court bear in mind the very serious consequences of an adult sentence for the young person, so as to only order an adult sentence when necessary to fulfill the objectives of the YCJA: R. v. O. (A.), [2007] O.J. No. 800 (Ont. C.A.) at paragraph 38.

[52] Counsel for the defendant also relies on the judgment of Devin J. of the

Ontario Court of Justice in R. v. F.A.N., 2008 ONCJ 517, [2008] O.J. No. 4236

(QL). The young person pled guilty to two counts of criminal negligence causing

death. He was driving with two friends when he lost control of a vehicle which

flipped over and collided, killing his two passengers. He was deeply remorseful,

a first time offender, 14 years of age, when the accident occurred. The pre-

sentence report was positive. He had complied with strict bail conditions since

the offences, lived with his family, was an excellent student, and had good

rapport with his teachers and fellow students. The vehicle had been travelling at

an excessive rate of speed. The young person was driving a motor vehicle while

under the legal age to obtain a driver's licence and without prior experience or

training. The two passengers in his vehicle who lost their lives were his friends.

He was 15 years of age at the time that a sentence was imposed. He sustained

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a broken collar bone and fractured ribs. The father of one of the victims

provided a victim impact statement orally, and despite his obvious pain and

sorrow stated that he did not believe that a custodial sentence would be helpful.

Devin J. imposed a six-month deferred custody and supervision order followed by

probation pursuant to the YCJA. There is no indication that the Crown sought

the imposition of an adult sentence. The factual circumstances, as well as the

personal circumstances and background of the young offender in F.A.N., supra,

are substantially different from those of the young person before this court.

[53] Counsel for the defendant referred the court to the decision of the British

Columbia Court of Appeal in R. v. T.L.B., (1998), 112 B.C.A.C. 320, [1998]

B.C.J. No. 2173 (QL), in which the appeal court affirmed the disposition of two

years open custody and one year probation imposed by the sentencing judge in

respect of the offence of criminal negligence causing death by a 14-year-old.

T.L.B. had stolen a vehicle, had driven erratically, including swerving toward

another vehicle, cutting in front of it, and then slamming on the brakes on two or

three occasions, crashing into a fence, tailgating a van, and failing to stop when

directed to do so by the police. The young person drove through a stop sign at

110 kilometres per hour and violently collided with another vehicle, killing the

driver, a young mother of two small children. The young person and his

passenger were injured and the young person was hospitalized for two weeks.

[54] The young person had previously pleaded guilty to three counts of

possession of stolen property (vehicles) and had boasted of his activities. He

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was on bail in respect of a charge of shoplifting at the time of the offence. He

breached his curfew both before and after the commission of the offence.

Through his counsel, he expressed sincere remorse for his actions. Noting that

the young person was now 15 years of age, progressing well in open custody,

attending school, and achieving good grades, the British Columbia Court of

Appeal affirmed the sentence.

[55] Defence counsel also relied on the case of R. v. D.W., 2008 ONCA 268,

[2008] O.J. No. 1356 (QL), in which the Ontario Court of Appeal held that the

trial judge had erred in his treatment of pre-trial custody, having concluded that

he was required to give the accused full credit for two and a half years of pre-

trial custody and that a further 18 months of custody would not hold him

sufficiently accountable nor promote his rehabilitation if a youth sentence was

imposed. The young person had been convicted by jury of the second degree

murder of a 73-year-old female whom he struck with a flower pot. He had given

a kitchen knife to the adult with him and encouraged him to stab the victim. The

Ontario Court of Appeal determined that the trial judge was not required to

directly deduct the time spent in pre-trial custody and imposed the maximum

youth sentence. The Court of Appeal concluded that this sentence would meet

the very real concerns expressed by the sentencing judge and accepted by the

young person's counsel. The Court of Appeal concluded that the young person

would receive better treatment for his underlying problems through a youth

sentence.

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[56] Defence counsel also referred the court to conditional sentences imposed

on adult persons found guilty of dangerous driving causing death or impaired

driving causing death. See R. v. Higgins (K.J.), 2001 MBCA 177, 160 Man.R.

(2d) 105; R. v. Horvath (R.P.), 2005 MBQB 136, 194 Man.R. (2d) 153

(impaired driving causing bodily harm; the victim did not die); and R. v. Parker

(1997), 116 C.C.C. (3d) 236 (N.S.C.A.).

CONCLUSION [57] The case authorities provided by the Crown relate to older young

offenders with more entrenched attitudes and longer prior offence records. I

have given weight to the age of I.R.N. at the time of the commission of these

offences and his consequent lack of maturity, and I have considered the failure

of responsible adults in his life to impose immediate consequences for his

misbehavior, including breaches of probation orders. Noting his remorse and the

very positive improvements in I.R.N.'s maturity and behaviour while detained in

a youth facility, I have concluded that a youth sentence imposed in accordance

with the purpose and principles set out in s. 3(1)(b)(ii) and s. 38 of the YCJA

would have sufficient length to hold I.R.N. accountable for his offending

behaviour. However, a custodial sentence is required, recognizing the significant

aggravating circumstances surrounding the commission of these offences and

the conduct of I.R.N. at the time, as well as the loss of Mr. Lanzellotti's life and

the terrible and continuing impact of this tragic event on his spouse and the

injuries sustained by a second victim, Mr. Heller.

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[58] I, therefore, conclude that the appropriate sentence is one of three years,

consisting of two years to be served in custody and one year to be served under

supervision in the community, subject to conditions, taking into consideration the

time spent in pre-sentence detention, for which I have exercised my discretion

not to grant a credit. That disposition will be registered in respect of the offence

of criminal negligence causing death. A concurrent sentence of two years to be

served in custody and under supervision in the community, apportioned pursuant

to s. 42(1)(n) of the YCJA, is imposed in respect of the charge of criminal

negligence causing bodily harm. I.R.N. has had the benefit of programming, as

well as the support and assistance of staff at the Manitoba Youth Centre, and the

opportunity, of which he has availed himself, to pursue his education. A period

of two years' detention and one year of community supervision, in addition to

the time already spent in pre-sentence detention, is necessary to reflect the

gravity of the offences and to effect I.R.N.'s rehabilitation, before and during the

time he is returned to the community. I also impose a 10-year driving

prohibition, i.e., I order that I.R.N. is prohibited from driving a motor vehicle or

vessel in Canada for a period of 10 years. The Crown's application for the

imposition of an adult sentence is dismissed.

_____________________________ J.

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