R, v, T.P.D.

R, v, T.P.D. Court Supreme Court Date 2009-06-26 Citation 2009 NSSC 332 Docket CR 293417 Judge/Registrar/Adjudicator Hood, Suzanne M. (Honourable Justice) Document Type Decision Relations Library Sheet - R, v, T.P.D. - 2009 NSSC 332 - 2009-06-26 - Library Sheet Decision Content SUPREME COURT OF NOVA SCOTIA Citation: R. v. T.P.D., 2009 NSSC 332 Date: 20090626 Docket: CR 293417 Registry: Halifax Between: Her Majesty the Queen Plaintiff v. T.P.D. Defendant D E C I S I O N Restriction on Publication: Name of accused Judge: The Honourable Justice Suzanne M. Hood Heard: December 8, 9, 10 and 11, 2008; February 26; March 30 and May 6, 2009 in Halifax, Nova Scotia Oral Decision: June 26, 2009 Written Decision: November 20, 2009 Counsel: Terry Nickerson and John Scott for the Crown Lance W. Scaravelli for the Accused Editorial Notice Identifying information has been removed from this electronic version of the judgment. By the Court: [1] T.P.D. pled guilty to the second‑degree murder of Matthew James Ayer. The murder occurred on October 15, 2007. T.P.D. was 17 at the time of the offence and the Crown seeks an adult sentence for him. ISSUES: [2] The issues are whether T.P.D. should be sentenced as an adult and, secondly, if not, should the youth sentence be an intensive rehabilitative custody and supervision order (IRCS) or a custody and supervision order. [3] Let us not forget that Matthew Ayer’s life was taken by T.P.D. Nothing I can say or do today can change that tragedy. If I focus on T.P.D. in this decision, it is because that is the primary focus of the Youth Criminal Justice Act. It does not diminish in any way the tragic loss of Matthew Ayer’s life and the tragedy his family has suffered. FACTS [4] T.P.D. was 17 years of age at the time of the offence. He is now 19. He has been on remand at the Nova Scotia Youth Facility at Waterville since October 19, 2007. [5] I will give a summary of the facts of the offence. [6] In the early morning hours of October 15, 2007, T.P.D. was on Gottingen Street in Halifax. He had a knife. Matthew Ayer and T.P.D. had a conversation and T.P.D. stabbed Matthew Ayer once in the neck. He bled profusely from the wound and collapsed, then died further south on Gottingen Street. T.P.D. ran from the scene, but turned himself in two days later. [7] Matthew Ayer’s father read his Victim Impact Statement to the Court and Brock MacNamara, his stepbrother, read the Victim Impact Statement of his older brother. John Ayer began his by saying, “There is nothing worse than losing your child.” He said, “Life is never the same.” [8] Joel Ayer began his Victim Impact Statement with the words, “My life changed forever on October 15, 2007.” He said he doesn’t know how people move on from tragedy. [9] The Court ordered an assessment of T.P.D. pursuant to section 34 of the Youth Criminal Justice Act. The four who participated in preparing the assessment all testified, and I will refer to their evidence further. They said the purpose of the assessment was to, “assist in determining the most appropriate sentence,” and was to “include consideration of an adult sentence, a youth sentence, and an Intensive Rehabilitative Custody and Supervision (IRCS) sentence.” [10] The Crown called four witnesses from the Nova Scotia Youth Facility who testified about T.P.D.’s behaviour and activities at the Facility. The Nova Scotia Youth Facility Progress Report is Exhibit 1, dated November 30th, 2008. T.P.D.’s behaviour at the facility will be referred to hereinafter. [11] At the continuation of the hearing on February 26 of this year, the Defendant called Dr. Belinda Seagram, a clinical psychologist at the Nova Scotia Youth Facility. She testified about her experience in youth and federal adult institutions. Her letter to the Court about T.P.D. is Exhibit 21. [12] In the section 34 Assessment Report, there is reference to Jay Robichaud, a youth worker at the facility, and Debbie Schofield, a teacher at the facility, as collateral contacts. As well, the report identifies the Nova Scotia Youth Facility record as one of the documents the authors of the section 34 Report reviewed in preparation of the assessment. [13] Alyson Muzzerall, who is a Senior Superintendent at Waterville, testified about the programs offered at the facility for regular youth sentences and pursuant to IRCS orders. [14] The Crown also called Department of Justice witnesses to testify about programs available in provincial institutions and about programs and services available when IRCS orders are made. [15] In addition, T.P.D.’s counsel called Fred Honsberger as a witness. He is the Executive Director of Correctional Services for the Department of Justice. The evidence of these witnesses too will be referred to later in this decision. [16] Paula MacMillan, the Manager of Assessment and Intervention for Correctional Services Canada, testified about the programs and services available in federal institutions in the Maritime region. These institutions include Springhill in Nova Scotia; Westmorland and Dorchester in New Brunswick and Renous, in New Brunswick. [17] As mentioned above, Dr. Seagram, for the defence, testified about her experience with programs and services in federal institutions in Ontario. In rebuttal to the defence evidence, the Crown called George McAloney, Correctional Service of Canada’s Acting Programs Director at the Springhill Institution. [18] Mark Crosby was called by the defence. He is a probation officer with and was previously at the Nova Scotia Youth Facility as a youth worker and part‑time probation officer. He prepared the Pre‑Sentence Report, which is Exhibit 6, dated December 1, 2008. [19] The subject of programs and services will also be canvassed hereinafter. THE SECTION 34 ASSESSMENT [20] A. Harpreet Aulakh is a psychologist with IWK Forensic Services. She testified she wrote pages 25 to 40 of the section 34 Assessment. Shelley Maguire‑Morrison is a clinical social worker and wrote the first 24 pages of the Assessment. As she put it, she provided the context. Ms. Maguire‑Morrison wrote the section of the section 34 Assessment Report which provided background information. [21] She referred to the area in which T.P.D. spent his childhood and most of his teenage years as a “highly‑stigmatized area of Halifax.” She said that, “Collateral sources advised that the * community has had issues with drugs and crime dating back over a decade.” She reported that T.P.D’s father said T.P.D. “was attracted to the money and power drug dealers had on the street.” [22] Before he was 13, Ms. Maguire‑Morrison writes that T.P.D. was a pleasant and well‑behaved child doing well in school and in extra‑curricular activities, principally sports and, especially basketball, at which he excelled. [23] T.P.D., however, told her that he took part in negative activities as a child, including throwing things at a pigeon and killing it, shoplifting caps for a cap‑gun, and throwing rocks or eggs at cars and snowballs at people. In my view, these are certainly undesirable activities but, unfortunately, not all that unusual for children of that age and, perhaps, especially boys. They do not, however, in my view, indicate pre‑cursors to a life of crime. [24] During his childhood, T.P.D. witnessed at least one, “potentially traumatic event.” His father assaulted his mother to the point where she was unconscious, had to go to hospital and have stitches on her face. Ms. Maguire‑Morrison said that T.P.D.’s father minimized the event as he did his drinking. A collateral source reported the extent of his drinking, and said it had been a long‑standing problem. T.P.D.’s father also indicated he had a gambling problem with VLTs, but that he has stopped gambling and only had one relapse. [25] When T.P.D. entered his teens, he “formed new friendships” with a “slightly older peer group who had involvement in drugs and criminal activity.” (quoting from Ms. Maguire‑Morrison’s portion of the section 34 Assessment) [26] It was at that time that his mother discovered he was stealing alcohol from their home and was using marijuana and smoking cigarettes, as well as staying out past his curfew. His mother said she would return from work and find him passed out drunk or neighbours would report to her that he was drunk on the roadside. Although his mother sought help, it was ineffective. [27] T.P.D. was staying out at night and he would leave home for days at a time without his parents knowing where he was. When he was about 15, he left his parents’ home briefly and moved in with his sister, six years his elder. [28] It was at this time that T.P.D.’s parents decided they had to move from the * area and this was when T.P.D. was about 16, in the spring or summer of 2006. [29] After the family moved from *, T.D.P.’s behaviour continued to be a problem. He would return to * and continued his association with a negative peer group. He also argued with his family and, at one point, he moved out for three weeks and stayed with friends. [30] In the spring of 2007, T.P.D.’s older brother, 16 years his senior, offered to have T.P.D. come to * to live with him. However, T.P.D.’s behaviour did not improve there and there are indications he was in trouble with the law as soon as he arrived. As a result, he could not continue to live with his brother and eventually wound up living on the street before returning to Nova Scotia with the assistance of Children and Family Services of *. He left for Halifax on October 2, just 13 days before the murder of Matthew Ayer. [31] Harpreet Aulakh wrote the Assessment Results and formulation portion of the section 34 Assessment. She also addressed the issue of adult versus youth sentencing and, in particular, the consideration of an IRCS order. [32] Ms. Aulakh met with T.P.D. on multiple occasions. She said he was very candid about his delinquent behaviour and criminal activities, but was less open about his peers. She said he acknowledged that substances are a problem for him, especially alcohol. [33] Ms. Aulakh used four tests to provide her with information about possible mental health issues in T.P.D.’s personality. She believed the results were valid, but said they may have underestimated his psychological problems. Her comments on his personality will be addressed when I consider the factors set out in section 72 of the Act. [34] Ms. Aulakh considered T.P.D.’s risk for criminal re‑offending and violent re‑offending. She referred to eight so‑called “domains” which are assessed on the Youth Level of Service/Case Management Inventory-Revised “(YLS/CMI)” [35] She says in her report at page 31, “The YLS/CMI is an actuarial measure designed to measure (1) risk of recidivism, (2) need for programs to reduce recidavism, and (3) responsivity factors in adolescents who have had contact with the justice system” T.P.D. fell into the high range on four domains. [36] The first is Prior and Current Offences because of his fairly extensive involvement with the criminal justice system and his failure to follow through on or abide by probation orders. The second one is Substance Abuse and this has already been discussed. The third is Peer Relations because he told Ms. Aulakh that most of his peers engage in anti‑social activities such as drug use and crime. The fourth is Leisure/Recreation because of his disengagement from positive activities as a result of drug and alcohol use. [37] Ms. Aulakh reported that T.P.D. fell into the moderate range in three domains. The first was Education/Employment because he has serious gaps in his learning as a result of absenteeism. This, of course, will affect his employability. The second was Attitudes/Orientation. Ms. Aulakh reported that T.P.D. holds pro‑criminal attitudes and has not done anything in the past to try to get help to change them. He has also disregarded the wishes of his parents and authority figures generally. [38] With respect to Personality/Behaviour, she said: When under the influence of substances, [T.P.D.] has reportedly been verbally aggressive, displaying poor frustration tolerance. He has had a tendency to act impulsively. Furthermore, tests results indicate that [T.P.D.] is emotionally immature and he does not appear to fully appreciate how his behaviour impacts others negatively. [39] The only area in which T.P.D.’s scores fell in the low range were in the domain of Family Circumstances and Parenting. His family is an important source of support for him although, initially, they did not, “fully acknowledge and challenge” T.P.D. about the extent of his criminal activities and behaviour. [40] Ms. Aulakh also commented: Other mitigating factors for [T.P.D.] include his likeability. A number of adults and professionals who have known [T.P.D.] throughout his childhood and youth think well of him and believe that [T.P.D.] can change. [41] She continued on page 33: Based on the current findings, [T.P.D.’s] overall risk for future general criminal recidivism, if no interventions are put into place, is judged to fall within the HIGH range. [42] With respect to risk of future violence, Ms. Aulakh assessed T.P.D. using the Structured Assessment of Violence Risk in Youth (SAVRY). It consists of three domains: historical risk factors, social and contextual risk factors, and individual risk factors, but also considers what are called protective factors. Ms. Aulakh’s conclusions based on these findings are set out at page 34 of her Assessment where she said: Based on the findings of the SAVRY, the likelihood that [T.P.D.] will commit a future violent offence, if no efforts are made to manage his risk, is within the MODERATE range. When [T.P.D.] is under the influence of alcohol or substances, [T.P.D.’s] risk for violence increases to the HIGH range because his behaviour becomes considerably more impulsive and reactive. Also, [T.P.D.] has reported that when he is in a bad mood or at times when he is under the influence of alcohol and drugs, he tends to have a hostile attribution bias (which is a tendency to interpret the intent of others who create negative feelings for the individual as ‘hostile’ even when others may not be acting in a hostile way). This way of perceiving others increases the likelihood of reactive violence. When [T.P.D.] is in the company of violent peers, he is also more strongly influenced to engage in aggressive behaviours. [T.P.D.’s] test findings indicate that he is strongly influencable by peers and as a result, negative peer influences serve to have [T.P.D.] engage in antisocial behaviours. [43] As well, Dr. Aileen Brunet, a psychiatrist with the East Coast Forensic Hospital, did a mental health assessment of T.P.D., and Donna Hughes, a psychologist with the IWK Assessment Services, did a psycho‑educational assessment. [44] Ms. Hughes testified that T.P.D. is in the average range of intellectual and overall cognitive functioning. She testified there are gaps in his education: he reads at a Grade 8 level and his math skills are at the Grade 6-7 level [45] In the Progress Report provided by the youth facility, it states that his educational progress was up and down. At first, he showed little or no effort, but in August 2008, he was reported to be making some progress. However, by October 2008, he was reported to not be using class time well and attending only sporadically. However, in November of 2008, he was reported to be attending regularly and putting in a “reasonable effort.” He was “making good use of class time and was focussed.” Dr. Brunet concluded T.P.D. needs counselling, not psychiatric help. She said that the section 42(7) criteria for an IRCS were met. [46] Attached to the section 34 Assessment is the IRCS Plan developed by the authors of the section 34 report. DEFENCE WITNESSES [47] T.P.D.’s counsel also called as witnesses T. F., V. J. and T.P.D.’s mother, G.D. [48] T. F. is a teacher who knew T.P.D. as a pre‑adolescent when he was in elementary school. He said he was an engaged, very bright student, at the top of his class, and a gifted athlete. He was unaware of any behaviour problems with T.P.D. in school at that time. [49] V. J. knows the whole family and first met T.P.D. when he was in Grade 7. He was a youth support worker at the high school and, at the request of G.D., he tried to help T.P.D., with no success. He said T.P.D. is a follower. He said it is difficult to get out of the lifestyle T.P.D. chose because there are few positive people around him. [50] G.D., T.P.D.’s mother, gave emotional testimony about her efforts to get help for T.P.D. and to get him away from the negative influences. [51] She testified about the problems they began to have with him, starting around age 13 or 14. She said her son is easily influenced and, how, as she put it, he “pulled the wool over her eyes.” But she is prepared to have counselling herself and her view is that now that he has admitted his drug and alcohol problems, with counselling and programs, he can change. She said he needs strong rehabilitation efforts and she is willing to do what is needed from her. She agrees he must be punished for what he did but said if he goes to a federal institution he will not be rehabilitated there. [52] The defence also entered into evidence as Exhibits 18 and 19, print‑outs from the Halifax Regional Police. The first is a report of a notification of Matthew Ayer’s next-of-kin. The report states that his father had advised the police that Matthew had been involved with drugs for approximately the past five years, and approximately one‑and‑a‑half months previously, he had thrown him out of the house. [53] A subsequent report of two days later is of a visit by the Halifax Regional Police to the Metro Turning Point Shelter. Shelter staff confirmed that Matthew Ayer had been there regularly from August 19 to October 13, which was the last day he had signed in, two days before his death. PRE-SENTENCE REPORT [54] A Pre‑Sentence Report is mandatory for a sentencing disposition pursuant to section 72(3) of the Act. The most recent PSR was prepared by Mark Crosby and is dated December 1, 2008. [55] A previous PSR and an update are also in evidence: a report by Alison Dolhanty dated August 18, 2005, and an update in a letter to the Provincial Court, dated November 15, 2006. [56] The most recent report by Mark Crosby of just over seven pages gives details of T.P.D.’s family background, education, health, and lifestyle. Under the heading “Offender Profile,” Mark Crosby writes: [T.P.D.] was interviewed for this report at the Nova Scotia Youth Facility. He was polite and personable in his demeanour. He was unhesitant in his response to questions, and did not seem to engage in any attempts to minimize the serious nature of the situation. He asserted that he accepts responsibility for the offence. He stated that he feels regret and shame for having taken someone’s life and feels bad for the victim’s family. He added that he was under the influence of drugs at the time and reacted out of fear. He stated that he recognizes he deserves a period of custody for his offence. He expressed the opinion that he would benefit from the help available to him as a result of an IRCS (Intensive Rehabilitative Custody and Supervision) sentence and remarked that he does not want to ever repeat the sort of behaviour which resulted in his offence. With respect to his earlier behaviour at NSYF and his lack of effort in the educational program he remarked that he is somewhat lazy but knows he needs to do more work and try harder to change his behaviour and attitude. [57] In his conclusions, under the heading, “Assessment of Community Alternatives/Resources,” Mr. Crosby writes, in part: By his own admission alcohol abuse and drug abuse have been a major factor in his chosen lifestyle. It seems reasonable, therefore, that substance abuse counselling and/or treatment will need to be a major focus of any intervention, as will the need to address lifestyle issues and values. [58] He then says that if an IRCS order is made, “Correctional Services has policy and practice in place to facilitate and supervise such an order. ...” [59] Mr. Crosby also testified, having been called by the defence, and his testimony will be referred to hereinafter. ADULT VERSUS YOUTH SENTENCE [60] According to the Act and the authorities, the first step in sentencing a young person for murder, where the Crown is seeking an adult sentence, is to determine if the Crown has met its burden of establishing that a youth sentence is not of sufficient length to hold him accountable for his offending behaviour. [61] The factors to be considered are set out in section 72(1), and these include the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person, and any other factors the court considers relevant. The court is also to consider the Pre‑Sentence Report to which I have referred. [62] Section 72(1) also refers back to s. 3(1)(b)(ii) and s. 38 of the Act, which set out the purpose and principles of the Act. [63] Section 3(1)(b)(ii) provides that the criminal justice system for young persons is to emphasize, “fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity.” [64] Section 38 is also referred to in that section and it sets out the purpose of sentencing. I will quote the portions which are relevant to this case: 38(1) 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) 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 ...; (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 acknowledgeable of the harm done to victims and the community. (3) 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. Case Authorities [65] In R. v. D.B., 2008 SCC 25, the Supreme Court of Canada considered the provisions of the Youth Criminal Justice Act with respect to adult versus youth sentences. [66] Justice Abella began by discussing the treatment of young persons who commit offences. She said in para. 1: Young people who commit crimes have historically been treated separately and distinctly from adults. This does not mean that young people are not accountable for the offences they commit. They are decidedly but differently accountable. [67] The issue before the court was whether the young person had the onus to show he or she should not receive an adult sentence. The court concluded this breached section 7 of the Charter, and the breach was not saved by section 1 of the Charter. [68] Justice Abella said in para. 41: What the onus provisions do engage, in my view, is what flows from why we have a separate legal and sentencing regime for young people, namely that because of their age, young people have heightened vulnerability, less maturity, and a reduced capacity for moral judgement. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment. She continued in para. 45: These considerations reveal that the approach to the sentencing of young persons is animated by the principle that there is a presumption of diminished moral culpability to which they are entitled. Like all presumptions, it is rebuttable. [69] In considering the issue of onus, Justice Abella referred to the principles of the Youth Criminal Justice Act and its preamble. She continued in para. 62: It is widely acknowledged that age plays a role in the development of judgment and moral sophistication. Professor Allan Manson notes that, ... the general principle that applies to youthful offenders ... is that a lack of experience with the world warrants leniency and optimism for the future. [70] She then quoted from authors and articles on sentencing of young persons in paras. 62, 63, and 64. She said: 62 ... Professor Bala describes the YCJA as premised on a recognition that to be a youth is to be in a state of ‘diminished responsibility’ in a moral and intellectual sense. Adolescents and even more so children, lack a fully‑developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self‑awareness, and they may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why they committed a crime most frequently respond: ‘I don’t know.’ Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. ... This is not to argue that adolescent offenders should not be morally or legally accountable for their criminal acts, but only that their accountability should, in general, be more limited than is the case for adults. 63 The following observation by Justice Gilles Renaud in Speaking to Sentence: A Practical Guide is also apt: Stated simply offenders who act out of immaturity, impulsiveness, or other ill‑considered motivation are not to be dealt with as if they were proceeding with the same degree of insight into their wrong doing as more mature, reflective or considered individuals. The less elevated the degree of moral blameworthiness, the greater the reach of leniency. By way of limited example, the relative youth of an offender will be emphasized in those cases in which an individualized disposition is selected ... . 64 As Professor Bala explains, ‘adolescents generally lack the judgment and knowledge to participate effectively in the court process and may be more vulnerable than adults. ...’ There is, moreover, evidence suggesting that as a result of this reduced judgment and maturity, young persons respond differently to punishment than adults, and that harsher penalties do not, by themselves, reduce youth crime. ... [71] Justice Abella then said in para. 65: 65 This helps explain why, in section 3(1)(b)(i) of the YCJA , ‘rehabilitation and reintegration,’ not general deterrence are emphasized and why, in s. 3(1)(b)(ii), accountability should be ‘fair and proportionate ... consistent with the greater dependency of young persons and their reduced level of maturity.’ [72] In applying the principle of fundamental justice that young persons are entitled to a presumption of diminished moral culpability, she said in para. 76: No one seriously disputes that there are wide variations in the maturity and sophistication of young persons over the age of 14 who commit serious offences. She continued, however, in para. 77 to say: This does not mean that an adult sentence cannot be imposed on a young person. It may well be that the seriousness of the offence and the circumstances of the offender justify it notwithstanding his or her age. [73] After concluding that the onus to satisfy the court that an adult sentence is called for, Justice Abella said in para. 93: This does not make young persons less accountable for serious offences; it makes them differently accountable. Nor does it mean that a court cannot impose an adult sentence on a young person. It means that before a court can do so, the Crown, not the young person, should have the burden of showing that the presumption of diminished moral culpability has been rebutted and that the young person is no longer entitled to its protection. [74] Having established the principle that the onus is on the Crown, she then considered the sentence imposed by the lower court. She concluded that there was no reviewable error in the sentence and dismissed the Crown appeal from the imposition of a youth sentence. [75] In R. v. Smith, 2009 NSCA 8, the Nova Scotia Court of Appeal dealt with a defence appeal from the imposition of an adult sentence. The sentence had been ordered before the Supreme Court of Canada decision in R. v. D.B., but the Crown had led evidence on the assumption that it had the onus. [76] In Smith, the Court of Appeal referred to the Ontario Court of Appeal decision in R. v. A.O., 2007 ONCA 144. Justice Hamilton said in para. 28: It held that one starts with s. 72, which establishes the test for imposing an adult sentence and then directs the sentencing judge back to the purpose and principles set out in s. 3(1)(b)(ii) and s. 38. It concluded: 42 The combined effect of ss. 72, 3 and 38, is to identify accountability as the purpose that the youth court judge must consider when deciding an application to impose an adult sentence on a young person. Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society. She also referred in para. 29 to R. v. Williams, [2008] A.J. No. 1024 (Alta. C.A.),where the Albert Court of Appeal said in para. 6: ... It follows that personal accountability of the young offender is identified to have a more specific role under s. 72 than it might in other sentencing decisions. The task of the youth court judge was to assess the accountability of the appellant in this context. [77] Justice Hamilton referred to R. v. M.D., [2008] O.J. No. 2658 (Ont. Ct. Just.), with respect to the factors to be considered. The Ontario Court of Justice said in that case, as quoted by Justice Hamilton at para. 30: 30. In R. v. M.D., ... the Ontario Court of Justice reviewed several other decisions which considered what factors are to be weighed in deciding whether a youth sentence would be long enough: 12 Justice Trotter, then of the Ontario Court of Justice, held in R. v. Lights ... that this notion of retribution or accountability is also reflected in the principle of proportionality. He concluded that an adult sentence should be imposed when a youth sentence would not be long enough to meaningfully address the seriousness of the offences, the offender’s role in them, and his rehabilitation and ultimate reintegration into society. To be a sentence which holds a youth accountable it must represent meaningful consequences for his offending and promote his offending, and promote rehabilitation and integration. 13 In R. v. J.M. ..., Justice Blacklock of the Ontario Court of Justice held that in considering whether a youth sentence would be long enough to hold the young person accountable within the meaning of s. 72, that sentence must not only be long enough to reflect the seriousness of the offence and the accused’s role in it, but must also be long enough to provide some reasonable assurance of the accused’s rehabilitation to the point where he can be safely reintegrated into society. 14 In R. v. C.K. ..., Justice Duncan of the Ontario Court of Justice described the issue of a consideration under s. 72 as being Whether the blend of considerations - the aggravating and mitigating circumstances of the offence, age, background, etc., and those considerations and principles in section 38 are such as to render this case exceptional and to take it outside of the range where the youth sentence can hold the offender to account - again, importantly, keeping in mind that we are talking about ‘fair and proportionate accountability’ that is consistent with the greater dependency of young persons and the reduced level of maturity. 15 In R. v. Ferriman, ... Justice McCombs of the Superior Court of Ontario said to hold a young person ‘accountable’, the sentence must achieve two objectives. It must be long enough to reflect the seriousness of the offence and the offender’s role in it, and it must also be along enough to provide reasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society. [78] Justice Hamilton noted in para. 31 that the Ontario Court of Appeal approved the above quote from Ferriman. [79] In para. 33, Justice Hamilton referred to another passage from R. v. M.D., supra: 8 Any youth sentence that might be imposed must also consider the purpose and principles set out in s. 38 of the Youth Criminal Justice Act. The purpose of youth sentencing 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 rehabilitation and reintegration into society, thereby contributing to the long‑term protection of the public. Such a sentence must not result in a greater punishment than an adult would receive for a similar offence, and must be similar to that given to other youths for similar offences. It must be proportionate to the seriousness of the offence and the degree of responsibility of the youth for that offence. All available sanctions other than custody that are reasonable in the circumstances should be considered for all youths. A youth sentence must be the least restrictive one that is capable of achieving the purpose of the Youth Criminal Justice Act, the one most likely to rehabilitate and re-integrate him, to promote a sense of responsibility in him, and an acknowledgement of the harm done to the victims and the community. [80] As the Court said in A.O., (quoted in Smith), the combined effect of section 72, section 3(1(b)(ii) and section 38 is to identify accountability as the purpose I must consider when deciding this application. There must be meaningful consequences for T.P.D. and the promotion of his rehabilitation and reintegration into society. [81] Accountability is, therefore, equated with the adult sentencing principle of retribution. According to Chief Justice Lamer in R. v. C.A.M. (1996), 105 C.C.C. (3d) 327 (S.C.C.), that must reflect his moral culpability, which takes into consideration his intentional risk‑taking behaviour the harm as a result of his behaviour, and the normative character of his conduct (paraphrasing para. 81). [82] In R. v. M.D., supra, the Ontario Court of Justice reviewed and quoted from previous decisions of that court. In summary, the sentence imposed must be long enough to meaningfully address the seriousness of the offence and T.P.D.’s role in it, and must also promote his rehabilitation and reintegration. In Ferriman, supra, Justice McCombs referred to these as the two objectives of a sentence which holds a young person accountable. As noted above, the Ontario Court of Appeal quoted that passage with approval. [83] In R. v. A.H., 2006 SKQB 413, a young person pled guilty to second‑degree murder committed when he was 15. He was 17 at the time of the sentencing. An IRCS order was made. Justice Klebuc referred to two cases where an IRCS order was made where the offence was second‑degree murder. In granting an IRCS order, Justice Klebuc said at para. 46: The aforementioned decisions and the over‑arching objectives of the YCJA indicate that a youth sentence for second‑degree murder can vary with the circumstances of the offence, the attitude of the young offender, whether the young offender is assessed as a reasonable prospect for rehabilitation, and whether public safety is a significant issue. I am satisfied at the time of the offence, the offender suffered from an emotional disturbance of the kind described by Olver and Perry and appears to continue to suffer from the same, namely, a cannabis dependence; a lack of anger management skills when presented with stressful circumstances; emotional behaviour problems; no clear appreciation of the seriousness of the offence committed; and no repertoire of options to deal with stressful events. Consequently, an IRCS Order will issue pursuant to ss. 42(2)(r) and (7) regarding the offender. [84] In R. v. P.K., 2005 ABPC 190, a decision of the Alberta Provincial Court, Criminal Division, Judge Leveque granted an IRCS order for a young person convicted of first‑degree murder. For first‑degree murder, the youth sentence is 10 years, and he was ordered, at age 17, to serve a custodial sentence pursuant to the IRCS order of six years, followed by four years’ supervision. He, therefore, would be 23 at the end of the custodial portion of the IRCS sentence. [85] In considering the seriousness of the crime, Judge Leveque said in para.16: This is a crime that is marked by a degree of callousness and bravado that is shocking to most adults. All parties to the crime showed little if any concern for their victim and sought to materially profit by their crime. These are all features of serious adolescent crime. It is not a contract murder nor part of the activities of organized crime. It is also not a result of the activities of an adolescent gang, rather it is a crime committed by two of a small teenaged social clique made up of dysfunctional and disaffected youths. The seriousness and circumstances of the crime are of the sort that Parliament was contemplating when passing the Youth Criminal Justice Act. It is a crime that invokes consideration of all of the response and consequences available in that Act. [86] He considered the factors set out in the Act and then he dealt with P.K.’s character, concluding in para. 20: P.K. has been diagnosed with a mental disorder, being severe conduct disorder, and while his treatment process will take an extended period of time and there are no guarantees, he is a redeemable young man. [87] The specific factors I must consider are those set out in s. 72. Seriousness and Circumstances of the Offence [88] It scarcely needs saying that the crime of second‑degree murder is a serious offence. With the exception of first‑degree murder, it is the most serious offence against the person in the Criminal Code. [89] However, as Mr. Scaravelli, counsel for T.P.D. pointed out, it is not the fact of the offence being murder that calls for an adult sentence. I must examine the circumstances of the offence. Any murder is, of course, a horrific event, but some of the cases cited to me had circumstances far different from this. [90] Although T.P.D. had a knife with him, there is no indication that he had any intent to use it to stab anyone. He said he owed money and carried the knife to protect himself. He was on Gottingen Street at 3:00 in the morning selling drugs so he could buy more marijuana. He and Matthew Ayer argued about money. He said he felt intimated by him and, in fear, swung his knife toward him. He told the interviewer for the section 34 Assessment that he had consumed both illegal drugs and a substantial quantity of alcohol that day and into the night and early morning hours of October 14. He ran away, but later turned himself in two days later. He pled guilty before trial. Age [91] T.P.D. was 17 at the time of the murder on October 15. He would turn 18 approximately three‑and‑a‑half months later. He was clearly close to the age when an adult sentence would be the only option. Maturity [92] The Crown pointed out that T.P.D. was making decisions as an adult and making choices as an adult. He had recently returned from approximately six months in * where he had gone to live with his much older brother. It appears that in the week after his return, he had not returned to his parents’ home, but was spending time with his peers. [93] In my view, the fact of his having gone to * and not having lived very long with his brother, and returning to Nova Scotia, but not to his parents’ home, says nothing about his level of maturity. Both adults and young persons can, of course, live on the street or have no fixed address. In my view, maturity is more of an internal factor, a stage of development rather than a question of where a person physically is. [94] The section 34 Assessment deals with T.P.D.’s level of maturity. Harpreet Aulakh testified that adolescence does not end at age 19 because the brain continues to develop as late as the 20's for some. She said T.P.D. is still developing. She said he is socially immature and does not have the reasoning abilities to navigate the decision‑making process. At p. 30 of the report, she said he was emotionally immature. [95] Shelley Maguire‑Morrison concurred that developmentally T.P.D. is still an adolescent regardless of his chronological age. She said in North America young people in their early 20's are still getting out of adolescence. [96] Dr. Belinda Seagram also commented on T.P.D.’s immaturity in relationships. Character [97] The Crown describes T.P.D. as a thief, robber and murderer. The section 34 Assessment deals extensively with his character, as did the authors in their testimony and as did a number of other witnesses. One of the common themes is that he is a follower. This was expressed by Harpreet Aulakh, Shelley Maguire‑Morrison, V. J., and by T.P.D.’s mother, G.D. Both Ms. Aulakh and Ms. Maguire‑Morrison said T.P.D. is motivated to change, as did Dr. Belinda Seagram. [98] Ms. Maguire‑Morrison said that he would not previously admit he had a problem with alcohol, but now acknowledges it. She also said he is now willing to consider the distorted beliefs he has with respect to crime, and he acknowledges that these beliefs and his behaviour have caused him problems. Harpreet Aulakh said he knew he needed change, but did not know how to do it. [99] A number of witnesses testified that T.P.D is a talented athlete, including T. F.. Harpreet Aulakh described T.P.D. has having a distorted view of the world; however, both Mark Crosby, in the Pre‑Sentence Report, and Shelley Maguire‑Morrison believe he was remorseful, as did Ms. Aulakh. Fred Honsberger, although not having met T.P.D., said most offenders say they are remorseful when they are facing sentencing. [100] T.P.D. was described as polite and personable by Mark Crosby in the PSR and Shelley Maguire‑Morrison commented on this as well. Harpreet Aulakh said he forms good relationships and wants to win the regard of those he meets. [101] Shelley Maguire‑Morrison said at page 16 of the Assessment: Professionals in the community who have worked with [T.P.D.] spoke very highly of him and noted that he is a very likeable young man. He presents as extremely polite, well‑mannered, pleasant and cooperative. [T.P.D.] has demonstrated that he is capable of maintaining appropriate relationships with the adults in his life. [102] Everyone acknowledged that T.P.D. has substance abuse problems, including T.P.D. himself. Harpreet Aulakh said he becomes belligerent and hostile when under the influence of drugs and/or alcohol. She also said he is impulsive and engages in risk‑taking behaviour when under the influence of alcohol. [103] According to Dr. Brunet, T.P.D. himself said when he is sober, he is shy and not a risk‑taker. Dr. Brunet said there is no evidence that T.P.D. suffers from a major mental illness. She concluded she has alcohol‑dependence and cannabis abuse, but noted both are in full remission in the controlled environment of a youth facility. She also concluded that he has a severe conduct disorder of adolescent onset. Background [104] T.P.D.’s background is explored in some detail in the section 34 Assessment by Shelley Maguire‑Morrison. [105] He is the only child of G.D. and F. L., each of whom has children from previous relationships. The couple has been together for almost 25 years. T.P.D. grew up in *, which Ms. Maguire‑Morrison described as a highly‑stigmatized area of Halifax, and she was advised it is an area with drug and crime issues. [106] Although T.P.D. self‑reported some incidents involving rock throwing and shop‑lifting before he was 13, no one else reported any knowledge of problems with T.P.D. before he was 13. Those contacted by Ms. Maguire‑Morrison reported that he was “a pleasant and well‑behaved child.” He did well in school and the reports from elementary school are summarized in Donna Hughes’ Psycho-Educational Assessment. He also participated in sports, especially basketball. He had the benefit of positive parenting, although there was one reported incident of physical abuse by his father to his mother. [107] T.P.D. has asthma and some allergies, but otherwise has been in good health through his childhood and adolescence. He had good friends during his younger years, especially two cousins. [108] This picture began to change when T.P.D. was 13 or 14 years of age. He began to associate with an older group who were involved with drugs and crime. Also, around the same time, he started to drink and use marijuana, as well as stay out past his curfew. Although his mother sought professional help, it was ultimately not successful and, by the time T.P.D. was 15, he came into conflict with the law and was using drugs and alcohol regularly. He would stay out all night or leave home for days at a time. He stole alcohol from his home and, by his own admission, he was selling drugs, including crack cocaine, to get money to buy alcohol and marijuana. [109] When he was 16, the family moved from * to * in hopes of getting T.P.D. away from the negative influences there. However, he continued to return to *. His brother offered for T.P.D. to come to * to live with him when he was 17, in the spring of 2007. This, too, did not prove to keep T.P.D. away from crime. He ultimately was sent home by government Children’s Services. [110] T.P.D.’s school work and school attendance deteriorated too from the time he was 13 or 14, culminating in his being withdrawn from high school in * in February of 2007. Because of his drug use, he also stopped participating in sports. Institutional [111] In evidence are reports of T.P.D.’s behaviour while at Waterville on previous occasions and since October of 2007. According to Shelley Maguire‑Morrison, during his first time there, 13 days on remand, he received a Level 3 citation. He was 15. His second time there, one year later for a five‑month period, resulted in six Level 2 and one Level 3 citations during the first three months and none during the last two months. When he returned for a third time for only two weeks, there are no reported problems. [112] T.P.D. has now been in Waterville more than one‑and‑a‑half years. Initially, he received a number of citations, some Level 2 and some Level 3. Some of the incidents involved T.P.D. bullying other youth. He was eventually transferred to another unit almost a year ago and he has not been disciplined since for bullying or violent behaviour. [113] Shelly Maguire‑Morrison said he had behavioural problems at first, but was better later, and that the bullying ceased and he was, in her view, doing well overall. [114] Dr. Belinda Seagram who began to treat T.P.D. around January of 2009 said in her letter to the Court that she “finds him to be a motivated client who is actively engaged in the treatment process.” Previous Record [115] The Crown provided a copy of T.P.D.’s criminal record. As noted, T.P.D. first came into conflict with the law when he was 15. He was charged with theft on March 5, 2005, just about one month after he turned 15. On April 11, he was charged with obstructing a peace officer. He was sentenced to a total of 40 hours of community service for both those offences on October 4, 2005. [116] On September 21, 2005, he was sentenced for offences on June 8, 2005: assault causing bodily harm and two breaches of undertakings related to the March and April offences. He received 12 months’ probation. [117] On October 28, 2005, while he was on probation, he was charged with resisting a peace officer, obstructing a peace officer, assault with a weapon, and mischief contrary to the Criminal Code as well as four breaches of his probation order, one for each of the other charges. For these offences, he was sentenced on November 10, 2005 to four months’ deferred custody and 12 months’ probation. [118] Again, while on probation, he committed a robbery 10 months later on September 5, 2006 and a theft on September 9. In conjunction with those offences, he was also charged with three counts of failing to comply with his previous sentence. He was sentenced on October 12, 2006 to custody and community supervision of 55 days and open custody of 110 days. [119] By March of 2007, he was sentenced for breach of the custody and supervision order. [120] On October 11, within days of his return from * and four days before the murder of Matthew Ayer, he was charged with causing a disturbance by a fight, resisting or obstructing a peace officer and another breach. He was sentenced on November 1, 2007 to 30 days custody and supervision. [121] Of the offences for which he has been convicted, two are for theft, one for robbery, one for assault causing bodily harm, one for assault with a weapon, one for mischief, four for resisting or obstructing a police officer, and one for causing a disturbance by fighting, for a total of 11 offences. The remaining 11 on his record are for breaches of undertakings or probation or breach of sentence conditions. [122] This series of offences, many of which occurred when T.P.D. was 15, (13 of them) are of grave concern. They show dishonesty (theft and robbery) and violence (assault convictions) and a general disrespect for authority (obstructing police officers and breaching conditions). Other Factors [123] I also consider it significant that T.P.D. has the support of his family. He is very close to his mother, and her testimony clearly showed her care and concern for him. He also has a very young child, a daughter, and has expressed his desire to be a good father to her, although he is no longer in a relationship with the baby’s mother. [124] Section 72(1) mandates that I determine if a youth sentence is sufficient in length to hold T.P.D. accountable for the murder of Matthew Ayer. The factors I have reviewed are to guide me in this decision. S. 3(1)(b)(ii) and s. 38 YCJA [125] I also must consider section 3(1)(b)(ii) and section 38 of the Youth Criminal Justice Act. The wording of section 3(1)(b)(ii), which sets out one of the principles of the Act, points out the emphasis on “fair and proportionate accountability” in the youth criminal justice system, including in sentencing; but that accountability must be “consistent with the greater dependency of young persons” like T.P.D. and “their reduced level of maturity.” [126] Section 38(1) also uses the word “accountable” in the context of sentencing. It refers to imposing just sanctions with meaningful consequences, but just sanctions that also promote the young person’s rehabilitation and reintegration into society, which contributes to the long‑term protection of the public. In Smith, supra, the Court of Appeal, based upon these sections of the Youth Criminal Justice Act, set out the two components of accountability: meaningful consequences and the promotion of rehabilitation and reintegration. [127] In my view, the Crown in this case has focussed almost entirely on the concept of meaningful consequences almost to the exclusion of the concept that the greater protection of the public would come from rehabilitating T.P.D. and reintegrating him into society, where he will one day return regardless of whether he receives a youth or an adult sentence. [128] It is true that a life sentence, which means a lifetime of parole after release, would result in an offender returning to penitentiary if he commits a further offence. One of the underlying premises of the Youth Criminal Justice Act is that, with some exceptions, young persons who commit crimes can be rehabilitated and successfully reintegrated into society so they commit no further crimes. They do not need to be on parole for a lifetime or return to prison for an offence because, if rehabilitated and reintegrated, they will not recidivate and commit another offence. [129] The question for the court is whether a youth sentence in this case can provide sanctions that address both components of accountability. [130] The Crown asked the court not to consider programs available for T.P.D. in deciding on an adult versus a youth sentence. In my view, that would not deal with the second component of accountability. It is that component, in my view, which addresses the safety and protection of the public in the long term. [131] In some cases, courts have determined that a youth sentence can address both complaints of accountability. In still others, courts have concluded it cannot and an adult sentence must be imposed. [132] In Smith and R. v. A.A.B., (2006), 241 N.S.R. (2d) 108 (P.C.), adult sentences were imposed for second-degree murder and criminal negligence causing death, respectively. The circumstances of the offence and the offenders were quite different from those in this case. [133] I note the particularly egregious circumstances in Smith. Smith had previously committed an aggravated assault on a cab driver. He is recorded as having said on the very eve of the murder of the cab driver that he was looking for someone to stab or shoot and “liked the sound of the knife going in and out of the cab driver” he had stabbed before. He said he stabbed the cab driver, Mr. Purcell, because he said something which “pissed him off.” He stabbed Mr. Purcell 14 times. The medical examiners referred to multiple sharp‑force injuries. Smith was on probation for the previous aggravated assault at the time of the murder. [134] In R. v. A.A.B.,the young person, according to the sentencing judge, “acted in a premeditated and practiced way.” He referred to A.A.B.’s plan which he said was, “designed to place innocent members of the public at risk so that he could escape.” The facts of that case are quite notorious, so I will summarize them only briefly. [135] A.A.B. stole a car and, while under the influence of marijuana, went through a stop sign. He was then pursued by the police, but reached such high speeds and drove so dangerously that the police pursuit ended. It was during a lunch time that he sped down a busy street going through red lights. At one such intersection, he t‑boned the vehicle driven by Theresa McEvoy, killing her instantly. [136] In his statement to the police, A.A.B. acknowledged there was a lot of traffic in the city and, in particular, around that time of day. At the time of the offence, he had a substantial criminal record and was already facing charges of dangerous driving while trying to get away from the police. He admitted to getting an adrenaline rush from being chased by the police, and admitted having practised high‑speed manoeuvres for such a purpose. His mother had warned him that he might kill someone. His intent was that the police would not pursue him if the public were at risk. Provincial Court Judge Burrill concluded his moral culpability was high and the act was not impulsive. [137] In R. v. Williams, supra, Williams, with others, had lured a 13‑year‑old girl and then sexually assaulted and murdered her. He was sentenced as an adult for first degree murder. [138] In R. v. A.O., supra, the Ontario Court of Appeal upheld the sentencing of A.O. and J.M. as adults, but ordered a re‑hearing on placement. They had pled guilty to six armed robberies arising from a series of armed robberies of convenience stores. They were 16 years old at the time of the offences, but had significant youth records and were subject to probation orders. [139] The Court said in para. 8, “We agree with the youth court judge that the robberies were well‑planned, violent, and terrifying.” The Court continued in paras. 9 and 10: 9 Each of the store clerks was traumatized and four of them sustained serious knife wounds. In one instance, the store clerk was severely beaten and stabbed. Several clerks now suffer from permanent injuries arising from the robberies. All six clerks remain fearful of working at night. They all experienced financial losses due to their injuries and consequent loss of work. 10 We agree with the following description by the youth court judge of the nature of the offences: The offences of [A.O.] and [J.M.] involved planning, disguises, weapons, and gratuitous violence. They committed their offences while on probation and breaching terms that placed them on a curfew and ordered them to stay apart. The victims were vulnerable - alone at night. Several of the clerks were immigrants to this country, working in a vulnerable situation in one of the few jobs available to them as they strived to get ahead in this country. These hard‑working men suffered physical, financial and psychological damage. Considering all of these factors, I find that the offences of [A.O.] and [J.M.] were extremely serious. [140] The circumstances of the offenders were different as well. A.A.B. was proud of his behaviour and had little appreciation of its effects. He had been exhibiting behavioural problems since age nine or 10 and there were indications it would take a long time to address what were referred to as “serious deficits” in his character. [141] In Smith, there were three assessments. Two were pursuant to section 34 of the Youth Criminal Justice Act. Smith was reported to have said in one that there was little love in his life and that hate gave him power and strength. He was said to suffer from a paranoid personality disorder and it was difficult to answer whether he would respond to treatment, but if he did, it would take years. He had previously spent time at the Nova Scotia Youth facility and, in fact, had completed its anger management program twice. The author of the assessment referred to his high score on the psychopathy checklist for youth and said that youth who score that high “are at a higher risk for violent behaviour.” [142] In R. v. D.B., supra, the Supreme Court of Canada upheld a youth sentence for a young person who pled guilty to manslaughter in the death of an 18 year old with whom he had a fight. D.B. had a criminal record for possession of stolen property and robbery and was on probation at the time of the offence. The court said he “had a history of mental health issues and behavioural problems in school.” He had expressed remorse for his offence and, during his pre‑trial detention, had made some positive steps. (paraphrasing para. 99) [143] The court referred to the Assessment which recommended he be “treated in a therapeutic milieu,” and concluded his needs could best be met in the youth correctional system “rather than exposing him to more hardened criminals.” (para. 99) [144] The sentencing judge, as quoted by the Supreme Court of Canada, in para. 100, said: ... the need for rehabilitation of this offender and ... the protection of society are better achieved through the intensive rehabilitation program available through a youth sentence than through a more protracted period of incarceration which may result from the imposition of an adult sentence. [145] In R. v. Williams, where the offender was sentenced as an adult, he had characteristics of a psychopath and had been unmanageable since early childhood. He had been resistant to rehabilitation efforts and the court said, “the prognosis is grim.” [146] Although there were positive comments made by A.O. to the youth court about his future prospects, these were outweighed by the negatives in evidence before the court. The Appeal Court referred to these as depicting him in a “different and disturbing light.” [147] The Court said in para.15: 15 The experts indicate that A.O. has a high risk of recidivism, that considerable time will be necessary to reduce this risk, that A.O. has a history of manipulative and deceitful conduct, and that he exhibits entrenched antisocial attitudes and behaviours. Dr. Meen was of the view that A.O. suffers from a conduct disorder exemplified by his lack of remorse and empathy for his victims. The experts, among other witnesses, agreed that there is ‘no quick fix’ for A.O. and that he still requires significant treatment. [148] At para. 62, the Court referred to the expert’s testimony with respect to A.O.’s “glibness and history of manipulation.” [149] With respect to the other youth in that case, J.M., the Court noted certain similarities to the characteristics of A.O., but also said that while he was in detention, he and two other youths beat up a youth to the extent that he needed medical treatment for head injuries. The expert testified that he has an anti‑social lifestyle and even during his detention maintained contact with what were described as “undesirable friends.” There was evidence that he lacked remorse and empathy for his victims. There was evidence that his “personality and behavioural problems are deeply engrained” and J.M.’s own treatment plan would take years to complete. Analysis: Adult or Youth Sentence [150] I now come to my conclusion with respect to an adult versus a youth sentence. Which sentence for T.P.D. best balances the two‑fold objectives of accountability, meaningful consequences for the offence and the promotion of rehabilitation and reintegration? No sentence can undo the harm T.P.D. has caused by the death of Matthew Ayer. What consequences will be meaningful for T.P.D. and reflect the seriousness of the offence and its circumstances as well as T.P.D.’s own circumstances? [151] The adult sentence is life in prison with no eligibility for parole for seven years. The maximum youth sentence is seven years: a maximum of four years in custody followed by supervision. [152] As counsel for T.P.D. pointed out, a youth sentence is the sentence to be imposed unless the Crown has satisfied me on the balance of probabilities that a youth sentence would not be long enough to hold T.P.D. accountable for the murder of Matthew Ayer. [153] It cannot be said, therefore, that a youth sentence of seven years is, in and of itself, not of sufficient length to hold T.P.D. accountable. I must consider the factors from section 72 to which I have referred, in making a determination whether the Crown has met its burden. [154] Any murder is, of course, a serious offence, but some of the circumstances surrounding this murder are worthy of consideration, especially in comparison to the circumstances of offences in the cases cited to me. [155] The murder was not planned. Although T.P.D. had a knife, his information to the assessors was that he had it for his own protection. That may not be surprising if one is selling crack cocaine on Gottingen Street in Halifax in the middle of the night. [156] T.P.D. had a record, including two offences against the person: assault causing bodily harm and assault with a weapon. These are serious offences, but not to the same degree as aggravated assault or attempted murder, for example. [157] The incident involving T.P.D. and Matthew Ayer was an impulsive act on the part of T.P.D. A witness heard them arguing and T.P.D. confirmed there was a discussion between them about money owed. T.P.D.’s version of events is that he was intimidated by Matthew Ayer and, when he believed he was about to be attacked, he pulled the knife out of his pocket and swung it. According to him, he did not have the intent to slash the victim’s throat. [158] I have reviewed T.P.D.’s character, his level of maturity, his background, and his criminal record. [159] The experts say he is immature and his immaturity led him into trouble. Until he was 13 or 14, he had few behavioural issues. The summary of his elementary school record and the testimony of witnesses show a young boy doing quite well. This was in spite of the neighbourhood in which he lived and because of the influence of his family and his focus on sports and generally on pro‑social activities. [160] The experts have said that adolescent onset behavioural problems are more amenable to treatment. Shelley Maguire‑Morrison said it is easier to treat youth than adults because the development of their identity is not complete and adolescence does not end just because a person has reached the age of 19. Harpreet Aulakh said there is less of a problem with T.P.D.’s aggressive behaviour because it only started after he reached his teenage years. His first offence that involved any violence was when he was 15. [161] The evidence of witnesses who testified about programs available in various institutions made it clear to me the difference in focus among youth facilities, adult provincial correctional facilities and federal penitentiaries. [162] In this regard, I conclude I am justified in looking not only at the programs available in youth facilities for regular custody and supervision orders, but also at the programs and services available under an intensive rehabilitative custody and supervision order. [163] If a youth sentence is ordered, the assessment report advocates strongly in favour of an IRCS for T.P.D., considering the very factors which I must consider in deciding upon an adult or a youth sentence. The issue of availability and appropriateness of such an order will be considered hereinafter. Provincial Institution [164] In provincial institutions, the focus is on short‑term programs since most offenders who are sentenced to provincial institutions are there for only short periods. Diana MacKinnon, the Director with the Department of Justice, Correctional Services responsible for programs in provincial institutions, said the programs are usually nine to 10 weeks in duration. She said they are psycho‑educational in focus, and are designed to provide information for offenders so they can get needed treatment when released. Janis Aitken, who is the Coordinator of IRCS programs, said there would be challenges for an IRCS program if the offender were transferred from a youth to an adult provincial facility. [165] Al Pottier, the Manager of Policy and Programs for the Department of Justice, said IRCS funding would continue if T.P.D. were transferred to a provincial institution, but would cease on transfer to a federal institution. He said an IRCS order in these circumstances is unknown territory because the other Nova Scotia IRCS orders were for a maximum of two to three years. Federal Institution [166] Paula MacMillan is the Manager of Assessment and Intervention and a senior parole officer at the Springhill Institution. George McAloney is the Acting Programs Manager at Springhill. Ms. MacMillan testified that when an offender first arrives at the Regional Reception Centre, which is at Springhill for the Atlantic Region, a multi‑disciplinary team gathers information so a correctional plan can be developed. The objective of the plan is to reduce risk: risk to the public and to the offender and staff. The plan developed takes into consideration the overall risk level of the offender as well as his needs. [167] She testified that the programs offered are either high or medium intensity, with the former being longer programs of smaller groups, usually a maximum of 10, and two facilitators. She said most programs have phases of pre‑testing, post‑testing, a relapse‑prevention component and a maintenance phase. She also said the correctional plan is updated regularly. [168] Since offenders serving life sentences almost without exception go to Renous, a maximum security institution, for at least their first two years, I will focus on the programs available there. I will later refer to the criteria for an exception to the first two years at Renous. [169] There is a program which teaches skills to avoid crime. It has a maximum of 10 per group in 26 sessions. There is also provision for two one‑on‑one sessions. The sessions are for two to two and‑one‑half hours, five days a week for seven weeks. [170] There is also a substance abuse program. The moderate intensity program is 26 sessions of two and one-half hours each over seven weeks. The high intensity program is four to five months with 90 sessions of two hours each, with a one‑on‑one every second week. [171] There is also a violence prevention program offered at both high and moderate levels. The high‑intensity program is 82, two‑hour sessions over a four‑month period with at least four individual sessions. The group is a maximum of 12. It runs five days a week, and there are maintenance sessions as well. [172] The moderate intensity program is 36 sessions of two to three hours each, four to five days per week over eight weeks, with some one‑on‑one components. [173] There are services available for those serving life sentences, as well as * Liaison Officer. [174] Programs are also offered which teach employment skills. Education programs are available for all grade levels, as well as GED preparation programs and tutors are available as required. [175] Ms. MacMillan also testified about the various employment‑like opportunities available in federal institutions, ranging from cleaners to cooks to CORCAN, which is a business‑like setting where offenders manufacture and sell products. [176] She also referred to the leisure and recreation activities, such as the library, the gym and some limited computer availability. [177] Ms. MacMillan testified about reintegration services such as half‑way houses and escorted temporary absences. She briefly described the parole hearing process and pointed out that at an offender’s Parole Eligibility Date, the offender may not be determined to be ready for full parole. [178] George McAloney also testified with respect to program availability in federal institutions. He said for “lifers,” at intake time‑lines are considered depending on risk and need. He said programs for “lifers” are not necessarily left to near the end of their incarceration. He said they try to deal with programming up front, but some programs are geared for the period just before release. He said programs could be up front, but the goal is to be sure they are completed by the Earliest Release Date. [179] He said the availability of programming is based on risk and need, but he admitted it might be possible for someone with a parole eligibility date of seven years to wait as much as six years before getting any programming. He agreed that if an offender was not a danger and not addicted, he would not be at the front of the line for programming. [180] He said that, after a program is completed, there is a maintenance phase with a booster before release, followed by maintenance in the community. [181] In federal institutions, the programs are offered in a group setting with very little one‑on‑one. Furthermore, there is no guarantee that T.P.D. would receive any programming until the period immediately before his Earliest Release Date. [182] On intake at Springhill, each offender is assessed based on risk and need. If an offender is a high risk to other inmates or to staff, he would be given priority for anti‑violence programming. If not, he would be on a waiting list for such programming while those who pose a risk or are nearing their Earliest Release Date would have access to the programming first. The programming is voluntary. [183] Similarly, for substance abuse programs, those who have the greatest need and who are nearest their Earliest Release Date would receive this programming. It is not likely that someone who has been abstinent for over one‑and‑a‑half years in a youth facility would be considered in great need of such programming immediately upon arrival in a federal institution. [184] Once in such programs, T.P.D. would be in group sessions with a wide variety of inmates. [185] As I have said, Ms. MacMillan testified that the rule is that “lifers” go to Renous for at least the first two years of their sentence. She explained that there is the possibility of an exception being made so that an offender does not immediately go to the maximum security institution at Renous. She said the decision is made at national headquarters and the factors considered are the offender’s institutional adjustment, his escape risk and public safety. She has been with Correctional Services Canada in federal institutions for over 15 years and knows of one “lifer” recommended for medium security but said there could have been others. [186] Dr. Belinda Seagram is a clinical psychologist working for the IWK at the Nova Scotia Youth Facility. She has been there only a short time, having previously worked at Fernbrook Institution in Ontario from 2000 to 2006. She said it is a medium security federal institution. [187] With respect to programming, her evidence is, based on her Ontario experience, that “lifers” often wait for programming and she did not know of any lifer who received any programming before around the sixth year of his sentence. She said, the closer an offender gets to his Earliest Release Date, the higher he is on the wait list. [188] In her letter, Exhibit 21, she says of the adult system “resources are scant and the opportunities for young men to go astray abundant.” [189] Based upon the evidence of Ms. MacMillan and Mr. MscAloney about programming in federal institutions, it appears there would be little in the way of therapeutic measures for a young person with T.P.D.’s mental health issues. When he would receive the programming available, which might be after some years in a federal institution, there is little or no one‑on‑one counselling available. [190] In the skills to avoid crime program, there are two one‑on‑one sessions. In the high intensity substance abuse program, lasting four to five months, there is a one‑on‑one session every two weeks, which would be approximately 10 times. In the high‑intensity violence prevention program, which runs for four months, there are at least four individual sessions. These total a maximum of approximately 20 individual sessions in programs lasting in total about one year out of the seven T.P.D. would spend in a federal institution. There are other programs available, such as educational programs, but those mentioned above are those with some therapeutic content. [191] Harpreet Aulakh said young persons recidivate faster if dealt with as adults, and this would be especially true for T.P.D. since she described him as a social conformer and socially immature and would be with those, as she put it, with “delinquent behaviour.” She said this, in the long run, reduces community safety. [192] Dr. Seagram put it succinctly that young persons “do not do well in federal institutions.” She also pointed out that youth “lifers” are exposed to a criminogenic population for a long time. She said when they are placed in maximum security, there are often behavioural problems because they are trying to make a name for themselves. [193] Ms. MacMillan acknowledged that, as she put it, “drug use has been known to occur” in federal institutions. Ms. Maguire‑Morrison flagged this as a potential problem for T.P.D., who had a substance abuse problem before his recent stay at the youth facility. Her view is that prison is not designed for rehabilitation. From a treatment perspective, she said youth are more likely to recidivate if they have a longer sentence. She also noted the group basis of the treatments and her concern that T.P.D. is easily influenced. [194] If T.P.D. did not obtain exemption from transfer from Renous and if he received group programming there, he would be in group sessions with other “lifers”, many of whom would be much older than his 19 years and possibly with a far lengthier criminal record for offences of violence. Those who are at Renous are “lifers” and those with lesser sentences who are considered a security risk. [195] Although psychological assessments are done on intake in Springhill at the Regional Reception Center and, if an offender is sent to Renous, one is done there, offenders do not see a psychologist unless there is some other problem. Other than a few one‑on‑one sessions to which I have referred, there are no individual sessions, although some of the high intensity programs do have a psychologist as a facilitator. Youth Facility [196] At the Nova Scotia Youth Facility, the regular programs are mandatory and based upon a risk and needs assessment. Educational programs are offered as well as substance abuse, anger management and cognitive and life skills programs. Alyson Muzzerall testified that a young person could complete all the required programming except, of course, education, in eight months. [197] The programs at the Nova Scotia Youth Facility are designed specifically for youth, young persons who are not mature and have a reduced capacity for moral judgment. The education programs are in a classroom setting. There is some access to IWK and mental health staff for a young person who is not in an IRCS program. But, as we know, from the letter from Dr. Seagram, she has, in fact, been working as a clinical psychologist with T.P.D. [198] If an IRCS order is made, Al Pottier testified that a maximum of $275.00 per day in funding is available per young person, to a maximum of a $100,000.00 per year. Janis Aitken testified that this means experts can be brought in for the young person and services can be provided to their families as well. Individual counselling is provided to the young person with the focus being on rehabilitation. She described the IRCS program as an individual program to address individual needs. She said the plan can be revised. It would include a reintegration plan for the young person’s return to the community. Conclusion [199] Although second‑degree murder is a presumptive offence pursuant to section 2(1) of the Youth Criminal Justice Act, the onus, as I have said, is on the Crown to satisfy me that a youth sentence is not sufficient. [200] I have outlined above the factors that section 72(1) requires me to consider. In summary, the offence is serious, as are all presumptive offences. Its circumstances were, of course, tragic, but less egregious than those in some of the cases to which I have been referred. T.P.D. did not set out to kill or injure someone. He had not practised ways to engage in dangerous behaviour or been warned of its likely consequence. [201] T.P.D. was, and is, immature in his decision‑making ability and socially immature. He only began to have behaviour problems after he reached adolescence, having had a normal childhood. He has acknowledged his problems and seeks to change his life. He has the support of his family and the desire to be a good father to his young daughter. His record, although certainly undesirable, is not a record of escalating violence, in my view. [202] His prospects for rehabilitation and reintegration are promising. As Ms. Maguire‑Morrison said, there are things in his favour which make success more likely. She said he has family support and is now committed to making changes. I accept her views in this regard. [203] Alyson Muzzerall agreed that the mental health professionals, the IWK team, are more qualified to deal with mental health issues of youth who commit violent crimes. [204] The Pre‑Sentence Report prepared by Mark Crosby repeats much of the information already contained in the section 34 Assessment. In my view, it is a balanced report, giving both positives and negatives, and on page 8, he notes that substance abuse counselling and/or treatment will have to be a focus of T.P.D.’s treatment as well as addressing his “lifestyle issues and values.” As I have said, he concludes by stating that, if an IRCS order is chosen, Correctional Services can facilitate and support such an order on T.P.D.’s release. [205] Section 31(b)(ii) of the Act states that one of the principles of the youth justice system is to emphasize fair and proportionate accountability, recognizing the reduced level of maturity of young persons like T.P.D. [206] Section 38 of the Act sets out the purpose of sentencing of young persons. It is the section of the Act that talks about accountability in terms of meaningful consequences and the promotion of rehabilitation and reintegration into society as its best protection. [207] In determining whether a youth sentence will have meaningful consequences, it is not synonymous with the concepts of rehabilitation and reintegration. [208] In A.O., supra, the Court said that the component of accountability is the equivalent of retribution, one of the adult sentencing principles. The Court went on to refer to the decision of Chief Justice Lamer in R. v. C.A.M. In paras. 80 and 81, Chief Justice Lamer explained retribution as follows: Retribution in a criminal context, by contrast, 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. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment and nothing more. And he continued: Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. [209] In A.O, the Court then said at para. 47: In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, ‘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.’ We see no other rational way for measuring accountability.’ [210] A sentence for T.P.D. must reflect the moral culpability or blameworthiness of his conduct. He acted alone and acted in a way that caused the death of Matthew Ayer. The risk‑taking behaviour was, of course, very serious as it took the life of Matthew Ayer. However, as I have said, it was done impulsively, was not planned, and was affected by T.P.D.’s view of the world as threatening, when the two had argued. The harm was the most serious. His conduct was far outside the norm but, as I have said, impulsive. [211] As Chief Justice Lamer said the punishment must be just and appropriate and nothing more, recognizing that there is a principle of restraint in imposing a sentence. [212] But that is not the only component of accountability. If it were, an adult sentence might be called for for this crime. That sentence would be for life imprisonment with no parole eligibility for seven years. [213] However, I must also consider the other component of accountability: sanctions which not only have meaningful consequences, but which also promote T.P.D.’s rehabilitation and reintegration into society, thereby contributing to the long‑term protection of the public. Both objectives must be achieved. [214] In my view, an adult sentence would sacrifice the principles of rehabilitation, reintegration, and long‑term protection of the public to the principle of retribution. Conversely, in my view, both can be achieved with a youth sentence in the circumstances of this case. [215] T.P.D. will be under criminal sanctions for seven years. That is a long time for a young person. If the full seven years were to begin now, he would not be free of those sanctions until he is 26. If he receives full credit for remand, he would still be 24. The consequence of such a long period in the life of a young person in significant. In my view, the restrictions are meaningful. While at the Nova Scotia Youth Facility, he will be under strict supervision. [216] The prospects for successful rehabilitation and reintegration of T.P.D. into society if he is given an adult sentence are dim. I have referred to the comments of Ms. Maguire‑Morrison, Harpreet Aulakh and Dr. Seagram, as well as the realities of the programming options from the testimony of Ms. MacMillan and Mr. MacAloney. [217] A young person with T.P.D.’s personality and mental health issues will not, in my view, be rehabilitated during a minimum seven years of incarceration in a federal institution. There is evidence of therapeutic programming, but some real risk that he will not have access to it until he has been incarcerated for a number of years. And, of particular concern, is the fact that, during the first two of those years, he will almost certainly be housed in the maximum security institution at Renous with the most violent of sentenced offenders and those with the greatest risk to security. [218] For a young person like T.P.D., these things, in my view, make his rehabilitation very unlikely. If he is not rehabilitated, his reintegration into society will not be successful and that, in turn, puts the safety of the public at risk. [219] The circumstances of this offence, as I have said, are quite different from those in the other cases to which I was referred from this region and, therefore, no comparisons such as section 38 directs me to consider. [220] In other cases in Canada, similar youth sentences have been given for second‑degree murder and, in one case, for first‑degree murder. [221] This punishment is not greater than an adult would receive and, as I have said, is proportionate to the seriousness of the offence and T.P.D.’s responsibility for it. [222] In my view, it is the least restrictive sentence that is capable of holding T.P.D. accountable and is the one most likely to lead to his rehabilitation and reintegration into society. It will also promote the sense of responsibility he has already shown for his offence and continue his acknowledgement of the harm he has done. [223] The factors set out in section 38(3) have been dealt with in my consideration of the section 72 factors. There is overlap between these sections. [224] A youth sentence answers the question posed by the Crown in its closing submissions, “What will keep the community safe and what will ensure he is rehabilitated?” [225] I therefore conclude that the Crown has not satisfied me on the balance of probabilities that a youth sentence would not have sufficient length to hold T.P.D. accountable. THE YOUTH SENTENCE [226] Having concluded that an adult sentence is not to be imposed, I must decide on the appropriate youth sentence. There are two options: one is the regular youth sentence of seven years with a maximum of four years in custody, followed by a period of conditional supervision in the community; the other is an IRCS sentence. [227] Having reviewed the section 34 Assessment recommending an IRCS sentence instead of a regular youth sentence, I conclude that I should consider whether an IRCS sentence is possible in this case. [228] Section 42(7) of the Youth Criminal Justice Act sets out the conditions for an IRCS sentence. It is a sentence specifically designed for young persons who have committed serious, violent offences, including both first and second‑degree murder and who have mental health problems. [229] The first condition is satisfied because, as I have said, section 42(7) provides that in a case of second degree murder, an IRCS sentence is available. [230] The second condition is also satisfied because Dr. Brunet has concluded that T.P.D. has alcohol dependence, cannabis abuse, and a conduct disorder, adolescent onset - severe. I accept her diagnosis. [231] The third condition has also been met since the section 34 Assessment contains a treatment plan which the authors have reasonable grounds to believe will reduce the risk of T.P.D. repeating the offence or committing a serious violent offence. At pages 39 and 40 of the section 34 Assessment, Harpreet Aulakh gives her reasons for supporting an IRCS order. In evaluating [TPD’s] risk for future violence and his intervention needs, it is the opinion of the assessors that [T.P.D.] would not benefit from a lengthy period of incarceration such as would be applied under an adult sentence. A lengthy incarceration period is likely to be detrimental to [T.P.D.’s] development and efforts at rehabilitation. Of particular concern is his continued exposure to anti‑social peers within the correctional system and limited opportunities to achieve pro‑social success. To date, [T.P.D.] has shown that he tends to follow and conform to the views of his peers. By spending a lengthy period of time incarcerated with other inmates, [T.P.D.] will likely continue to develop more entrenched crimonogenic thinking which will likely increase his risk for future offending behaviours. [232] And she concluded on page 40: In order for [T.P.D.] to develop effective risk‑management strategies, he requires intensive mental health interventions, and significant external controls to address his substance abuse concerns and his criminal behaviour. Given the above information, the authors of this report would support the application of an IRCS sentence. [233] Harpreet Aulakh testified that higher risk offenders need a higher level of intervention, which an IRCS order can provide to address violent offending issues. It provides a plan tailored to the individual and this improves public safety. She said an IRCS order allows for creativity beyond existing services, depending upon the young person’s needs and can provide things that do not currently exist. She concluded T.P.D. would benefit the most from an IRCS program, whether in Waterville or a provincial institution. Dr. Seagram agreed that IRCS supervision for T.P.D. would be helpful for him. Based upon the evidence I have heard, this is a reasonable conclusion. It is not a guarantee, and that is not what is required by the Act. [234] The possible stumbling block for this Court to impose an IRCS sentence is the fourth condition. It provides that the provincial director, in this case Fred Honsberger, who is the Executive Director of Correctional Services for the Department of Justice, must have determined that the program is available and the young person’s participation in it is appropriate. In enacting this provision, Parliament has, apparently, taken that decision out of the hands of the sentencing judge. In other circumstances, it would be the sentencing judge who would determine if an IRCS sentence is appropriate, and that decision would be subject to appellate review. In his letter to the court, Mr. Honsberger says, “I cannot support a decision for an IRCS sentence with reference to this individual for reasons as follows, ...”. He then sets out his reasons. [235] Mr. Honsberger was also called as a witness by the defence. He testified that he used the Joint Corrections Plan prepared by Alyson Muzzerall and Janis Aitken to write his letter. However, he said he did not read the section 34 Assessment Report. He testified he believes he read the Pre‑Sentence Report around the time he wrote his letter, but he could not be sure. [236] In his testimony, he summarized his concerns as: T.P.D.’s age, his past history, and the fact that the programs he needs could not be done in the framework of an IRCS order. He said that what is proposed cannot be delivered. [237] In his letter to the court, he also said, “The offender has expressed no concern for his victim.” He then gives his opinion that the main reason T.P.D. is seeking an IRCS order is “his desire for a mitigated sentence.” [238] He testified that, in his view, T.P.D. showed no remorse. However, in the Pre‑Sentence Report prepared by Mark Crosby, which I have already quoted, Mr. Crosby says that he was remorseful. According to Fred Honsberger, offenders interviewed for PSRs often say they are remorseful when facing sentencing. He also noted that this was the probation officer’s interpretation of what T.P.D. said and meant. [239] In the section 34 Report, Shelley Maguire‑Morrison said that, in her interviews with T.P.D., he would say he was ashamed of what he did, embarrassed and could not believe he had done it. She said he did nothing to minimize or excuse his actions. In my view, these are expressions of remorse. [240] Also in the section 34 Assessment, Harpreet Aulakh said at page 28: It initially appeared that [T.P.D.’s] focus was on how his offences negatively impacted his life. In further discussions, [T.P.D.] volunteered that he feels bad for his actions and that he feels he cannot forgive himself because the outcome of his actions have had permanent repercussions. [T.P.D.] reported that he was ‘feeling bad and sad for his [victim’s] family’ and he reported, ‘I pleaded guilty because of that.’ [T.P.D.] wrote, ‘Sometimes I sit in my cell and wish that I could trade places with the deceased. That is what goes through my mind every day and night as soon as I walk into my cell it hits me hard. I am sorry for all the pain I caused my family and society for all the harm I did.’ [241] Mr. Honsberger testified he based his conclusions on the youth workers’ reports and they said T.P.D. was not remorseful. In his letter to the court, Mr. Honsberger refers to the fact that, in his opinion, an adult provincial facility could not serve T.P.D.’s “rehabilitative needs.” He continues, “He requires an intensive structured environment similar to a youth facility, if there is any hope that a rehabilitative approach will be successful.” He then refers to T.P.D.’s “confrontational behaviour,” at Waterville. He concludes that reason by saying that “An adult provincial correctional facility would be less therapeutic.” [242] He said he did not know when he wrote his letter that page 23 of the section 34 report, written December 3, said there had been few problems in the last three to four months. Page 7 of the report refers to few problems since July 2008. In their testimony, the Youth Facility workers described T.P.D.’s behaviour at Waterville. I have referred to that testimony above and will summarize it now. [243] There were a number of problems in the first six to seven months T.P.D. was in Waterville. Steve Hepburn testified about these. [244] Paul Getson testified about T.P.D.’s behaviour since July 2nd of 2008. He said, generally, he has done adequately. He mentioned the disciplines T.P.D. received, but none were for intimidation or fighting as there had been previously. He said T.P.D. had received a certificate for completion of the substance abuse program, although he was not doing much with respect to his education. He acknowledged that T.P.D. had a good relationship with staff and his interactions with others were acceptable. He also said his work has picked up in the past month or two and referred the court to the teacher’s monthly notes. [245] Angelo Visentin, the Deputy Superintendent of the Nova Scotia Youth Facility, said he had been involved twice with T.P.D. because of his behaviour, both times prior to July 2008. He acknowledged, on cross‑examination, that intimidation occurs a lot with young people in the Nova Scotia Youth Facility. [246] Mr. Honsberger referred to T.P.D.’s “entrenched criminal lifestyle” and opines that, “A long term period of reflection in a controlled setting would be more desirable than an attempted short term therapeutic response at a facility which cannot fully support such an approach.” [247] Mr. Honsberger testified he was led to believe that T.P.D. had, “an extraordinary history,” and was, “spiralling out of control.” He at first said that in his first 20 years, he was on a self‑destruction mode, but then said it was actually only since age 10. The evidence of everyone who knew or dealt with T.P.D. placed the age at which he began to get out of control at age 13 or 14, with this offence occurring four years later at age 17. [248] Both Shelley Maguire‑Morrison and Harpreet Aulakh testified that adolescent onset behavioural problems are more readily addressed than problems that begin in earlier years. [249] Mr. Honsberger also testified about his concern over T.P.D.’s age. He is now 19. He said because of T.P.D’s age, he should not serve his sentence in Waterville. He said it is not good for the facility if someone is there beyond age 20. He said the presumption is that he would be moved at age 20 unless there is good reason not to. If T.P.D. were transferred, he could go to the Halifax County Correctional Center. Mr. Honsberger went on to explain that Burnside, the Correctional Center, was not designed for long‑term custody. He said although the IRCS programming could continue there, by seeing counsellors by appointment, it would not be the same as in Waterville because the entire process at Waterville is rehabilitation. [250] At Burnside, he said the contact with counselling would be sporadic. He went on to say that the environment in Burnside is volatile because the inmates are newly‑arrested. He also pointed out that there is no programming and nothing therapeutic offered there. [251] Mr. Honsberger concludes his letter by saying: In my view, the age of the offender, prior criminal history, lack of concern for the victim, intimidating behaviour, lack of insight into the effect of his criminality on others would suggest that an IRCS sentence would not be appropriate. Likewise, an IRCS case plan cannot be properly implemented in a provincial adult correctional facility. Attached to his report is a Joint Corrections Plan for T.P.D.. It is signed by Alyson Muzzerall, the Senior Superintendent at the Youth Facility, and Janis Aitken, the IRCS Coordinator for Correctional Services. The Plan states that a case conference was held on November 18, 2008, and the participants, in addition to Ms. Muzzerall and Ms. Aitken, were Michael Sampson, the Deputy Superintendent of Programs; Mark Crosby, the Probation Officer; Harpreet Aulakh; Shelley Maguire‑Morrison; Jennifer Flanders Schofield, the Acting Program Worker; Angelo Visentin, the Deputy Superintendent of Operations at the Facility; Jay Robichaud, Youth Worker; and Debra Schofield, the teacher. [252] The Plan states if an IRCS order is made, there will be case conferences with many participants, including T.P.D., and his parents will also attend as appropriate. [253] The Plan goes on to deal with T.P.D.’s current situation. It reports that he has “demonstrated behaviour problems,” and was academically under‑achieving. [254] The authors report that an IRCS assessment and treatment plan was prepared and, “will be implemented by the IWK Youth Justice Service once his sentence has been determined.” They also note that T.P.D. “advised the IWK treatment staff that he wishes to participate in the treatment plan.” [255] The authors then refer to a number of complicating factors, one of which is the likelihood of his transfer to an adult provincial correctional facility and, on application to this Court, possible transfer to a federal penitentiary, which would result in the IRCS funding terminating. [256] They do say, however, that if he is transferred to an adult provincial facility, the IWK team will continue to provide services. They note that it is difficult to predict “whether the ... [Central Nova Scotia Correctional Facility] is equipped to accommodate a youth serving an IRCS sentence.” [257] Although section 42(7) requires the Director’s okay for an IRCS, in my view, the decision to give an okay or deny an approval must be made reasonably. It cannot be done arbitrarily or based upon incomplete information or wrong assumptions. [258] It was quite surprising to me that Mr. Honsberger had not even read the lengthy section 34 Assessment of T.P.D. and the IRCS Treatment Plan which forms part of it. He relied upon outdated information about T.P.D.’s behaviour at the Youth Facility. Although not glowing, the later reports show an improvement in behaviour and attitude in his most recent months there. [259] Mr. Honsberger also concludes T.P.D. showed no remorse when there is evidence that he did. Mr. Honsberger’s dismissal of remorse expressed in the Pre‑Sentence Reports generally is, in my view, a somewhat cynical view. Although it may be the case for some offenders interviewed for PSRs, I cannot conclude it is justified in this case, in light of the comments by Shelley Maguire‑Morrison in the section 34 Report, and the comments of Harpreet Aulakh in that same report, of which Mr. Honsberger, of course, did not have the benefit. Furthermore, Mark Crosby, the author of the PSR, is not only a probation officer, but has previous experience working with young persons at the youth facility. [260] Mr. Honsberger concluded that T.P.D.’s expressions of remorse were not genuine. He had not met T.P.D. and did not avail himself of the opportunity to review details about him and the opinions of the mental health professionals set out in the section 34 Report. He did say he believes the team who wrote the report has credibility. [261] He testified about the three objectives of provincial correctional services: 1) the safety of the offender, the public and the corrections staff; 2) changing the behaviour of offenders; and 3) having offenders succeed as citizens. He said he agreed that the IRCS plan would likely protect society and he agreed with the report’s authors on the subject of recidivism but said, because of T.P.D.’s age, he could not serve his sentence at Waterville. [262] In my view, Mr. Honsberger seems to think that, although T.P.D. needs rehabilitation, he will be better served in a federal institution because it is “an intensive, structured environment similar to a youth facility.” A federal penitentiary certainly is a structured environment, but, based on the evidence before me, I conclude its structure is vastly different from that in a youth facility. Any other similarities to a youth facility are not mentioned and do not come to mind, based upon the evidence before me. [263] Mr. Honsberger also says an adult provincial correctional facility would be less therapeutic, but does not say whether he means compared to a federal facility. If so, therapeutic is not a description I would apply to a federal institution. [264] He also refers to “a long term period of reflection,” in a federal penitentiary, as not only being possible, but also being “more desirable,” than an “attempted short‑term therapeutic response” in an adult provincial correctional facility, which he concludes “cannot fully support that approach.” [265] He appears to assume that the IRCS program cannot be continued in an adult provincial facility. Based upon the Joint Corrections Plan attached to his letter, it is true that the authors say it is difficult to predict if it can be done there. However, it has not been tried and the Joint Corrections Plan points out that the IWK IRCS team will continue to provide services there. It is not a foregone conclusion that it will fail, and there also would be a period before a possible transfer to the adult facility when the IRCS program could be provided at the Nova Scotia Youth Facility. [266] The Youth Criminal Justice Act provides for an IRCS order for young persons convicted of second‑degree murder. It does not put any proviso on its availability if a young person is almost an adult at the time of the offence. For various good reasons, the sentencing has been delayed since T.P.D.’s guilty plea over one year ago. [267] The fact that an IRCS has never been ordered in Nova Scotia for someone convicted of second‑degree murder should not be a reason to deny it where it is warranted. Also, administrative difficulties in delivering an IRCS program in this case should not deprive T.P.D. of an opportunity to have it ordered for him. There is no age limit on the program’s availability. A seven‑year sentence comprised of a maximum of four years custody and the balance of supervision is contemplated by the Youth Criminal Justice Act. [268] The Act also specifically contemplates an IRCS order for violent offences, including second‑degree murder. It should not be surprising that young persons convicted of such an offence might be 16 or 17 at the time of the offence. If a trial were held, it is not unreasonable either to expect that at least some of the offenders would be 18, 19, or even 20 at the time of sentencing, when an IRCS order would be considered. [269] T.P.D.’s age alone should not be an impediment to the availability of such an order. The system should not deprive him of an otherwise available sentence. Al Pottier said it is “unknown territory” because previous IRCS orders were not for as long a period as this one would be. [270] In my view, Mr. Honsberger’s decision is inconsistent with the section 34 Assessment. I have not been referred to any case authority where there was a recommendation by mental health professionals for an IRCS order and approval was not given by the provincial director. [271] I conclude that an IRCS program is available for T.P.D.. It may be difficult to deliver, but it is not impossible. The funding is available according to Al Pottier. I conclude that the decision of Mr. Honsberger that an IRCS order is not appropriate is a flawed and unreasonable decision. His three concerns are not justifiable reasons to deny the program to T.P.D. [272] As I have said above, there is no exclusion from an IRCS order for a young person sentenced at age 19. The administrative difficulties cannot stand in the way of an otherwise authorized and available order. Similarly, the administrative difficulties in delivery of the program can be resolved. There is provision in section 93 of the Youth Criminal Justice Act for a young person to remain in a youth facility beyond the age of 20. The provincial director has the ability to order it. If not, a way can be found to deliver the program in an adult provincial institution. THE IRCS PROGRAM [273] The plan for T.P.D.’s IRCS program is set out in an attachment to the section 34 Report. I accept the authors’ expertise in recommending this plan. [274] There was evidence about the services available under an IRCS order. Janis Aitken, the IRCS Coordinator, testified that, under an IRCS order, they can bring in experts, provide individual counselling, provide services to the family, provide specialized educational opportunities, contract with private consultants. Also, the services can vary and the Plan may be revised throughout the sentence. [275] Alyson Muzzerall, who is the Senior Superintendent at the Youth Facility, gave specific examples of the types of services, such as family counselling and parenting skills. She also said there are greater mental health treatments available as well as greater recreational opportunities. [276] Mark Crosby, the probation officer, testified about the supervision under an IRCS order on a young person’s release from custody. He said they work with clinical people with respect to support services which form part of the Plan. He said there is intensive involvement by the probation officer, including meeting with the young person twice a week and the family once a week. [277] He said there are also voice checks, contact with parents, and at least two checks with collaterals every month, as well as a minimum of two home visits every month. He said they meet regularly with the service providers such as psychologists and with an employer or a school, as appropriate. LENGTH OF PERIOD OF CUSTODY [278] T.P.D. is now 19. He has been at the Youth Facility in Waterville since October 17, 2007, more than one‑and‑a‑half years. The maximum youth sentence for second‑degree murder is seven years, with a maximum of four in custody. [279] There is no rule with respect to credit for remand time. In some cases, credit has been given and, in others, none. In R. v. L. (J.R.) 2007 NSCA 62, the court considered credit for remand. In para. 47, Roscoe, J.A. said: In my view, the time spent in pre‑sentence detention can be ‘taken into account’ without expressly giving specific credit for time served by deducting the number of days or some ratio of that number, from the days of a custodial sentence. [280] In R. v. D.(A.J.), 2009 NSSC 56, a recent Nova Scotia Supreme Court decision rendered in February of this year, Justice Boudreau gave no credit for remand time. [281] In R. v. L.(E.), 2005 CarswellOnt 8444 (Ont. Ct. Just.), Maisonneuve, J. agreed with a joint submission of counsel that no credit be given for pre‑trial custody other than time spent since the offender’s last appearance, approximately six weeks before. [282] In R. v. A.O., supra, the Ontario Court of Appeal in 2006 upheld the sentencing judge’s credit of 1.2:1 for remand time. The Court said the sentencing judge had noted that the conditions in the youth facility were not as harsh as in adult detention centers and there was excellent treatment, counselling, educational and vocational programs available to the offender. The Court of Appeal commented on the fact that these factors distinguished youth detention from adult detention. [283] A young person on remand at the Nova Scotia Youth Facility has access to all the programs at the facility with the exception of the off‑site school opportunities. This is unlike remand time in adult provincial facilities in Nova Scotia. The conditions under which T.P.D. was detained are little different from those of youth serving sentences. [284] However, the IRCS sentence is only just beginning, although the stabilization period referred to in the Plan may be considered to be underway even though the program and services outlined have not yet begun. [285] Dr. Belinda Seagram has most recently been working with T.P.D., and with some success. She testified that, although disjointed treatment resulting from a transfer to an adult provincial facility could be a problem, it would be less so if they had one year to get a start on the treatment plan. [286] Although the provincial director may transfer T.P.D. to a provincial institution next January when he reaches age 20, he need not do so, according to section 93 of the Act. To allow at least a minimum of a one‑year period for treatment to get started, the provincial director may well decide to order T.P.D. to continue to serve his sentence at the youth facility for at least a full year, or even to his 21st birthday or until the program’s completion. [287] Because he has had the benefit of the services available to all young persons at the youth facility, although he has not has the benefit of the IRCS services that will now be available, I conclude he should have credit for 20 months on remand. [288] Four years is the maximum custodial portion of the sentence and that is what I order. However, I am giving credit for 20 months on remand. Accordingly, the balance of the maximum four years custodial portion of the sentence is 28 months. If T.P.D. is transferred to a provincial institution when, or soon after, he reaches his 21st birthday, he will have nine months or less to serve in the provincial facility. [289] Alyson Muzzerall did point out that some young persons do remain at the youth facility for their entire sentence. If that were the case for T.P.D., he would complete the custodial portion of his sentence at the youth facility at age 21. [290] If there is a concern about delivery of the IRCS treatment plan in an adult provincial facility, the provincial director may decide to order T.P.D. to complete the custodial portion of his sentence at the youth facility. Otherwise, as I have said, the fact that IRCS treatment has not been offered at, for example, Burnside, does not mean that it cannot be done. [291] T.P.D. will, in either set of circumstances, then serve the balance of his seven‑year sentence in the community under supervision and with the treatment plan continuing for a further three years. [292] The DNA order and the weapons order which have been provided to me will also be granted. [293] And, before I conclude, because we have to deal with the other two counts on the indictment, I want to speak directly to you, T.P.D. [294] A lot of people supported you in this matter before the court. Your family has been here and the professionals who have met with you believe you are ready to change your life. My decision today will provide you with resources to help you make the changes you have said you are ready and willing to make. [295] There is a lot of work ahead of you, but you will have a lot of help and support. But in the end, the only person who can make it all work is you. You will have to carry the burden of what you have done, but you can change who you were at that time, and become again the son your parents knew before you were 13 or 14. [296] You have the potential to be a valuable member of society and of the community and you have the potential to be a good father to your child. You might even be an example to other young people who have made bad decisions, committed crimes, and want to change their lives. But the final decision is yours. You must make the changes, you must make the effort and we all hope and trust that you will do that. Hood, J.