Heading or Style of Cause

2Date: 20150708Docket: 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:)COUNSEL:

)

HER MAJESTY THE QUEEN,)Susan D. Baragar,

)for the Crown

)

- and -)

)Todd E. Bourcier,

J.A.M.C.,)for the Young Person

)

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.

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 October31, 2010, at which time she was 17 years of age.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 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. 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 APPLICATIONCounsel 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 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.

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.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 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.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.The notion of accountability under the YCJA, as it read at the time of these offences, excludes accountability to society in any larger sense or the principles of denunciation and deterrence. As stated in R. v. I.R.N., 2010 MBQB 137, 253 Man.R. (2d) 284:34In 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.

35And 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.

36At 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. ...

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.

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). 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 young persons] future behaviour based on an evaluation of all of the evidence (para. 11).I now turn to the factors identified for consideration in s. 72(1).Seriousness and Circumstances of the OffencesOn 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.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.The following facts are agreed.(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 in her blood;(ii)Her blood alcohol level at the time of the collision was between .07 and .12 mg%, according to the Crown experts extrapolation from her breath samples; based on C.s description of her consumption to an ambulance attendant and physician, the expert opined that her blood alcohol level at the time of the collision was between .09 and .12 mg%;(iii)C.s ability to drive was impaired by alcohol but she did not realize it at the time;(iv)She was texting on her Blackberry;(v)She was speeding, specifically travelling 96 km/hr when the speed limit was 80 km/hr;(vi)Her vehicle was on cruise control; and(vii)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 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.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. Defence counsel says that these facts do not support the inference suggested by Crown counsel.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. 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.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, Backgroundand Previous Record of the Young Person

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 currently employed full-time in a retail position. She resides with a friend in a duplex owned by her mother.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.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. 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.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 I 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.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.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 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.The probation officer assessed C. as a medium risk to re-offend.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 well-reasoned. He further reported that C. has undergone periods of 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.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 interventions. Since the forensic assessment, C. has seen her family physician for treatment of both PTSD and ADHD.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.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

Given the seriousness of these offences, I must also consider the interests of society in deciding whether to sentence 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 "offender-centric" 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 DecisionTo 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. 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).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 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.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. 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. essentially sought her mothers approval to take the rum from home, and her mother seems to have largely acquiesced. 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.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; 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.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. In considering the adult sentence application, I must be governed by the relevant authorities.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.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 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).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. 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.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. 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.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: In R. v S.S., 2003 BCPC 354, [2003] B.C.J. No. 2366 (QL), the British Columbia Provincial Court sentenced a 17-year-old 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. He had a difficult upbringing. 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 17yearold to two years of probation and 240 hours of community service for dangerous operation of a motor vehicle causing 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.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 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.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.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.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.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.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.Therefore, I dismiss the Crowns adult sentence application.SENTENCES TO BE IMPOSEDBefore 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).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.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 custodial sentences are called for and the length of any such sentences, I again turn to the authorities.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. 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. 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). 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. 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.) 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 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. 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).Taking into account the particular circumstances of this case and all of the authorities, I am of the view that a non-custodial sentence for C. is not adequate to achieve the purpose and principles of sentencing set out in the YCJA, particularly 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, 2010 have had devastating and lasting consequences. 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 three-year custodial sentence accords with the governing principles and will hold C. accountable for her actions. 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 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.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.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.

___________________________J.