2007 BCCA 206 R. v. Pratt

Before:	The Honourable Madam Justice Saunders
	The Honourable Mr. Justice Smith
	The Honourable Madam Justice Kirkpatrick

G.D. McKinnon, Q.C.	Counsel for the Appellant
U. Botz	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
October 20, 2006
Place and Date of Judgment:	Vancouver, British Columbia
April 3, 2007

Written Reasons by:

The Honourable Madam Justice Saunders

Concurred in by:

The Honourable Mr. Justice Smith

The Honourable Madam Justice Kirkpatrick

Reasons for Judgment of the Honourable Madam Justice Saunders:

[1] The appellant, Mr. Pratt, pleaded guilty to one count of manslaughter and on May 11, 2006, was sentenced to seven years, three months' imprisonment. That sentence took into account fourteen months' pre-trial custody and was said by the sentencing judge to be the equivalent of a sentence of nine years' imprisonment. Mr. Pratt applies for leave to appeal and to have his sentence reduced. The reasons for sentence are indexed at 2006 BCSC 1198.

[2] Mr. Pratt was 16 years old at the time of the offence, March 7, 2005, and 17 years old at the time of sentencing. The deceased, Grant DePatie, was a young man then 24 years old, who was working at night as the lone attendant in a gas station in Maple Ridge, British Columbia. Mr. DePatie was dragged to his death under a stolen car driven by Mr. Pratt.

[3] Mr. Pratt had spent the afternoon and early evening of the offence with similarly-aged friends during which he drank, by his estimate, about 20 beers. The group of young people became unruly and at some point were denied a ride on a public transit bus. They made their way to a friend's home where Mr. Pratt declared that he wanted to steal a car. After "testing" several vehicles with a friend, he broke into a car, punched out the ignition with a screwdriver and, with his friend in the passenger seat, drove off. Mr. Pratt had no licence and was drunk.

[4] The stolen car needed gas. Mr. Pratt pulled into a Shell station but was unable to open the gas cap and left without refuelling. He then pulled into the Esso station where Mr. DePatie was working.

[5] The sentencing judge described in his reasons for sentence the dreadful chain of events that then happened:

[17] … they pried off the gas cap and Mr. L. began to pump gas. Due to the suspicious behaviour of the two men, Mr. DePatie approached them. It seems that he suspected that they might "gas and go", that is, leave without payment. When he spoke to the young men, he noted that the ignition of the LeBaron had been punched out with a screwdriver. He wrote down the licence number of the car and walked away. One of the two young men said to the other, "He's going to phone the police."

[18] Twelve dollars worth of gas had been pumped into the car at this point. Mr. Pratt returned to the driver's seat and suddenly and unexpectedly accelerated away from the gas pump while Mr. L. remained standing outside the car. Most unfortunately, Mr. DePatie was somewhere nearby and in the path of the LeBaron as it accelerated towards the street. The front right side of the LeBaron struck Mr. DePatie and knocked him to the ground. The car ran over him and Mr. DePatie was caught in the undercarriage of the car. Mr. Pratt was aware that he had struck someone, but he continued to accelerate away, dragging Mr. DePatie with him.

[19] Mr. L. ran after the fleeing car on foot, but Mr. Pratt did not stop for him. He drove eastbound along Dewdney Trunk Road, along paved two-lane divided highways, with no apparent destination. It was dark and the traffic was very light. At one point, he was observed to drive through a stop sign at a high rate of speed. At another point, he was observed to make a seemingly inexplicable veer on a straight stretch of road. He was seen travelling at an estimated speed of between 80 to 90 kilometres per hour in a 30-kilometre-per-hour speed zone.

[20] For 7.5 kilometres he drove while dragging Mr. DePatie along the road beneath him. When Mr. DePatie's lifeless and severely abraded naked body came free of the LeBaron's undercarriage at the 7.5-kilometre mark in Mr. Pratt's circuitous route, Mr. Pratt continued to drive, leaving Mr. DePatie's body on the road to be found by others shortly thereafter.

[6] The sentencing judge then recounted how Mr. Pratt drove on a few kilometers before returning to a friend’s house. Others arrived with a stolen truck and asked him to join them in a drive to Hope. Mr. Pratt agreed. The sentencing judge continued:

[22] When the foursome arrived in Hope, they unsuccessfully tried to use Ms. H.'s father's credit card for gas. One of the four, K.P., stayed in Hope and the others drove back to Maple Ridge. En route, Mr. Pratt shared the driving. When they arrived in Maple Ridge at about 6:00 a.m., they passed near to where Mr. DePatie's body had been found. They observed police vehicles and lights and avoided the scene.

[7] The sentencing judge found that Mr. Pratt, during the drive to Hope, told one of the friends that he had killed a person and that he had heard screaming under the car.

[8] The injuries to Mr. DePatie were described in detail by the sentencing judge. They were extensive and fatal. He died not from being struck by the car but from the injuries sustained, in the sentencing judge's words, "as he was dragged alive under the vehicle".

[9] The sentencing judge then set out the circumstances of Mr. Pratt. He is an aboriginal youth, raised by a single mother, the middle son of three. He has had little contact with his father who resides in Saskatchewan. When he was 12, he was moved into the care of the Ministry of Children and Family Development. His mother had a crystal methamphetamine addiction and had been neglectful of him. At the time of the offence he was "AWOL" from his most recent foster home with an aunt, and was residing with his grandmother. He dropped out of school in the spring of 2004 when he was 15 years old, and did not complete grade 9. Mr. Pratt began drinking liquor on weekends and after his 16th birthday he often drank on a daily basis.

[10] In November 2004, Mr. Pratt began having telephone contact with his father and was disappointed when his father was financially unable to travel to British Columbia for Christmas 2004. By January 2005, two months before the offence, he had left his aunt's home in response to being grounded for drunkenness. Mr. Pratt moved to his grandmother's home, and continued drinking to excess. While there he committed various thefts, including of cars.

[11] Mr. Pratt had, at the time of sentencing, two criminal convictions, one for mischief in October 2004, breaking windows at an elementary school, and one for possession of a stolen car in February 2005. He was sentenced to nine months' probation and ordered to pay compensation on the first conviction. At the time sentence was imposed for this offence he had not yet been sentenced on the second offence.

[12] The sentencing judge related progress made by Mr. Pratt during his pre-trial detention towards obtaining his high school diploma and his interest in becoming a welder. Reference letters described him as "a pleasant, sociable, well-liked, thoughtful and kind young man".

[13] At the sentencing proceeding, Crown counsel suggested a sentence of eight years plus the fourteen months' pre-sentence detention. Defence counsel suggested four years plus the fourteen months' pre-sentence detention.

[14] In settling on seven years, three months plus the time served of fourteen months, the sentencing judge addressed the sentencing provisions of the Criminal Code. He did not advert to the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "Act") except for observing at the beginning of his reasons for judgment:

[3] Mr. Pratt was 16 years of age when he committed this manslaughter. In these circumstances, Mr. Pratt is being sentenced as an adult pursuant to the provisions of the Youth Criminal Justice Act. The parties agree that this matter is properly before the Supreme Court for the imposition of an adult sentence as it is referred to in the Youth Criminal Justice Act.

[15] The sentencing judge commenced his discussion on the principles of sentencing with the accurate observation that "a sentence must be proportionate to the gravity of the crime and the degree of responsibility of the offender". He correctly observed that in cases of manslaughter, the circumstances of the offence demand close scrutiny to determine where it falls in the manslaughter spectrum from near accident to near murder.

[16] The sentencing judge then related the many offences committed by Mr. Pratt both before and after this offence and said:

[57] The circumstances establish that the manslaughter committed by Mr. Pratt is one of extreme gravity and that his moral culpability is high. Mr. Pratt intentionally engaged in a series of acts over a prolonged period, all of which he knew were unlawful and some of which he knew posed a substantial risk to the lives and safety of others. By his criminal acts of car theft and driving while impaired, Mr. Pratt deliberately placed himself in a situation in which it was likely that, to avoid apprehension, he would take flight behind the wheel of the car. The high risk of injury or loss of life associated with flight in these circumstances is well known.

[58] In further aggravation, when he took flight and struck Mr. DePatie, he did not stop. This was a criminal and morally reprehensible act. The consequence of his failure to stop was devastating. It serves to underscore, in a most graphic fashion, why it is critically important to stop and why the failure to do so is a serious criminal offence.

[59] I am obliged to accept, as a premise from Mr. Pratt's guilty plea to manslaughter, that there is insufficient evidence that Mr. Pratt knew he was dragging an adult man along the ground under his car. However, I find that such a significant lack of awareness could only arise from Mr. Pratt's drunkenness, inexperience, unfamiliarity with the vehicle and/or fear of apprehension. For putting himself behind the wheel in all these compromised states, he was entirely to blame.

[60] Moral culpability may be found to be low for impulsive acts or momentary lapses into criminal conduct. However, the acts of Mr. Pratt were anything but impulsive or committed during a momentary lapse from otherwise good conduct. I cannot characterize the circumstances of this crime as a joy ride with a terrible unintended consequence, as if Mr. Pratt's conduct were some sort of teenage prank. The term "joy ride" is nothing more than a euphemism for car theft and the dangerous driving that often ensues. It is one that should be banned from the lexicon of the criminal law.

[17] The sentencing judge, having characterized the evidence and identified the aggravating circumstances, addressed the mitigating circumstances:

[62] In mitigation, Mr. Pratt has entered a guilty plea. The parties agree that Mr. Pratt's guilty plea should operate in his favour at sentencing. Also, defence counsel submits that Mr. Pratt's deprived background and the disappointment of not meeting his father at Christmas 2004 are other mitigating factors.

[63] I am reluctant to accord these factors much weight in the light of the seriousness of Mr. Pratt's crime. Also, there is an absence of a compelling causal and temporal link between these factors and the offence. In other words, there was no personal crisis which directly precipitated the events of March 7th, 2005. The cancelled visit could not have reasonably been interpreted as a devastating rejection. Mr. Rediron simply could not afford the trip. A 16-year-old is more than capable of understanding such a reality. It was an ordinary disappointment of life and nothing more.

[64] The mitigating personal circumstances of Mr. Pratt are, sadly, all too common among offenders. They serve to explain, but not excuse, Mr. Pratt's criminal behaviour. They would have greater relevance in crafting a fit sentence for a minor crime than for the serious violent offence committed by Mr. Pratt.

[18] After observing the principles of sentencing and commenting on the case he saw as most analogous to this, R. v. C.(J.M.) (5 May 2000), Surrey 107465-01D (B.C. Prov. Ct.), the sentencing judge held that he must accord the sentencing objectives of retribution and denunciation considerable weight:

[73] Similarly, I am satisfied, on the basis of reasons already given, that members of the community would be rightly outraged by Mr. Pratt's conduct and would want the sentence imposed to reflect their collective condemnation of it in the strongest terms. Mr. Pratt flagrantly broke numerous laws of society, specifically enacted to protect everyone from the foreseeable harms caused by their breach. In short, our laws say in the clearest of terms that we do not want an inexperienced, unlicensed, and/or impaired driver behind the wheel of a stolen motor vehicle, on our roads. It is a recipe for disaster.

[74] Moreover, if that disaster results in another vehicle or a pedestrian being struck, then our society expects, as is reflected in our law, the driver to stop and to assist an injured fellow human being. The failure to do so may result in different consequences as stark as life and death. This case demonstrates that the failure may also result in a needlessly cruel and painful death.

[19] Likewise, the sentencing judge concluded that specific and general deterrence were important sentencing objectives in the case. He then observed that the objective of separating Mr. Pratt from society was not relevant and turned to rehabilitation. On this he said:

[79] Mr. Pratt is a young, healthy man with no medical diagnoses that might explain his criminal conduct or inhibit his rehabilitation. It is his unfortunate background, marked by neglect and poor parenting, which is the most likely explanation for his lapse into antisocial and criminal behaviour. Such a background is regrettably common among criminal offenders, as is illustrated in many of the sentencing cases cited by counsel. Although it does not excuse criminal behaviour, it does raise a reasonable prospect of rehabilitation, particularly when the offender is young.

[80] There is nothing before the court from which I could infer that rehabilitation is not a realistic objective for Mr. Pratt. Since his incarceration, he has continued his secondary school education and he has received favourable reports. Mr. Pratt enjoys the support of his extended family and the aboriginal community. Mr. Pratt has the ability to be a productive and law-abiding member of the community after he has paid his debt to society for his crime. I am satisfied that rehabilitation is a legitimate sentencing objective in this case.

[20] The sentencing judge then imposed the sentence that is now under appeal, effectively a nine-year sentence, saying:

[83] Mr. Pratt, it will be evident to you from all that I have said that I regard your crime as particularly egregious. It is the sort of crime for which denunciation, retribution, and deterrence must be the paramount sentencing objectives.

…

[85] … I believe that you understand the seriousness of the crime which you have committed and I accept that you are remorseful, as you undoubtedly should be.

[86] You cannot reverse what you have done, but you can serve a just punishment for your crime and thereby pay your debt to society. This will be an aspect of your rehabilitation. You can also work towards leading a crime-free and productive life for the sake of your family, the community and yourself. You are young and your prospects for rehabilitation are good. However, other compelling sentencing objectives dictate that a considerable part of your rehabilitation must occur while you are within a custodial setting.

[87] Mr. Pratt, please stand. You have been ably represented by your counsel and everything that could be said on your behalf has been said. Having regard to the seriousness of your crime, the aggravating and mitigating circumstances of it, your guilty plea, the paramount sentencing principles of retribution, denunciation and deterrence, your good prospects for rehabilitation, and the sentences that have been imposed in other cases, I find that a fit sentence for your crime is nine years imprisonment. Your sentence will be reduced by 21 months in recognition of the time you have already served in pre-sentence custody and the lack of remission earned during that period.

[21] On appeal, Mr. McKinnon for Mr. Pratt, submitted that the sentencing judge erred in his approach to sentencing a young person to an adult sentence under the Act, and failed to give adequate weight to Mr. Pratt's circumstances. Both errors, he said, resulted in an over-long sentence of incarceration.

Discussion

[22] The general question for this Court on a sentence appeal is the fitness of the sentence. In the event we conclude there has been an error in principle, or we conclude that the sentence is "demonstrably unfit" or "clearly unreasonable", this Court may intervene: R. v. Shropshire, [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657, R. v. Johnson (1996), 112 C.C.C. (3d) 225, 84 B.C.A.C. 261 and R. v. Toor (2006), 229 B.C.A.C. 42, 2006 BCCA 347.

[23] Two errors of principle are alleged: one involving the influence of the Youth Criminal Justice Act upon the "adult sentence" imposed, and the other relating to an under-emphasis of the principle of rehabilitation and Mr. Pratt's circumstances in the imposition of the sentence. These two errors are said to have contributed to what the appellant says, in any case, is an excessive sentence and one that is demonstrably unfit.

[24] The case before us bears two forceful aspects. The first, which was comprehensively and accurately addressed by the sentencing judge, is the egregious nature of Mr. Pratt's crime. It had, in the sentencing judge’s words, "devastating impact". It brought anguish to Mr. DePatie’s family and friends, and horror to the community. It ended a young man’s life.

[25] The second aspect is Mr. Pratt's youth at the time of the offence. Unlike many of the cases to which we were referred, Mr. Pratt was not an adult, not even a young adult. Rather he was, in law, a minor, but one who had committed an offence so grave that in the circumstances he fit within the criteria in the Act for an adult sentence.

Application of Youth Criminal Justice Act principles to an adult sentence

[26] The question raised in this allegation of error is the relationship between the principles of sentencing set out in Part XXIII of the Criminal Code, particularly s. 718, and the principles of the Act. The appellant contends that even though the principles of s. 718 apply (denunciation, general deterrence, specific deterrence and rehabilitation), s. 3 of the Act still has influence. The effect of s. 3, he says, is to heighten the significance of the principle of rehabilitation where there is positive evidence supporting the prospect of the young person's rehabilitation and re-entry into society as a law-abiding and contributing member of the community, and to focus upon the greater dependency and reduced maturity of young persons than is the case for adults.

[27] Crown counsel supports the application of the principle of rehabilitation, but contends that it has only the weight required by s. 718 of the Code, such that once the offender is brought under s. 718, s. 3 of the Act ceases to influence the sentence imposed. To find otherwise, says Crown, is to create a third sentencing regime in addition to the two already acknowledged, those being sentencing a young person to a youth sentence under the Act, and sentencing an adult offender under the Code.

[28] Section 1 of the Act defines an "adult sentence'', a "young person" and a "youth sentence":

"adult sentence", in the case of a young person who is found guilty of an offence, means any sentence that could be imposed on an adult who has been convicted of the same offence.

"young person" means a person who is or, in the absence of evidence to the contrary, appears to be twelve years old or older, but less than eighteen years old and, if the context requires, includes any person who is charged under this Act with having committed an offence while he or she was a young person or who is found guilty of an offence under this Act.

"youth sentence" means a sentence imposed under section 42, 51 or 59 or any of sections 94 to 96 and includes a confirmation or a variation of that sentence.

[29] Mr. Pratt fit within the definition of "young person", but by consent of counsel and the operation of the Act, was sentenced to an adult sentence pursuant to s.74 for his crime of manslaughter.

[30] The maximum youth sentence for manslaughter under the Act, set out in s. 42(2)(o), is three years of custody and supervision. To put that in its context, the maximum youth sentence for second degree murder is seven years comprised of a maximum of four years’ custody and three years’ supervision (s. 42(2)(q)(ii)).

[31] Manslaughter is named as a "presumptive offence" for which, by an order made under s. 70(2), the young person may be sentenced to an adult sentence. The purpose of an adult sentence for a young person is apparent in the test a court must apply in ordering the imposition of an adult sentence. Section 72 directs a court to consider "the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant". By s. 72(1)(b) the order must be made in the event the Court, considering those matters, "is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour".

[32] It is clear that the seriousness and circumstances of Mr. Pratt’s offence were such that a youth sentence for manslaughter, maximum three years of custody and supervision, would not have sufficient length to hold him fully accountable for his offence. The question is whether that conclusion removed all influence of the principles of the Act.

[33] It is useful to set out further provisions of the Act.

[34] Section 3 sets out the principles of the Act under the heading "Declaration of Principle" and the section heading "Policy for Canada with respect to young persons":

3(1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to

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

(ii) rehabilitate young persons who commit offences and reintegrate them into society, and

(iii) ensure that a young person is subject to meaningful consequences for his or her offence

in order to promote the long-term protection of the public;

(b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

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

(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and

(d) special considerations apply in respect of proceedings against young persons and, in particular,

(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,

(ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,

(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and

(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

[Emphasis added.]

[35] Part 4 of the Act is entitled "Sentencing" and sets out the provisions relating to the sentencing of young persons, starting with the provisions applicable to imposition of a youth sentence and then moving to the provisions relating to imposition of an adult sentence such as was imposed in this case. It commences with section 38, which establishes the purpose of imposition of a youth sentence:

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, with particular attention to the circumstances of aboriginal young persons; and

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.

…

[36] Section 50 of the Act provides:

50(1) Subject to section 74 (application of Criminal Code to adult sentences), Part XXIII (sentencing) of the Criminal Code does not apply in respect of proceedings under this Act except for paragraph 718.2(e) (sentencing principle for aboriginal offenders), sections 722 (victim impact statements), 722.1 (copy of statement) and 722.2 (inquiry by court), subsection 730(2) (court process continues in force) and sections 748 (pardons and remissions), 748.1 (remission by the Governor in Council) and 749 (royal prerogative) of that Act, which provisions apply with any modifications that the circumstances require.

(2) Section 787 (general penalty) of the Criminal Code does not apply in respect of proceedings under this Act.

[37] Under the sub-heading "Adult Sentence and Election", starting at s. 61, come the provisions relating to imposition of an adult sentence. They speak in terms of imposition of an adult sentence, rather than in terms of sentencing as an adult. The provisions include s. 72, which sets out the test for imposition of an adult sentence, referred to above, and include as well s. 74, which imports s. 718 into the sentencing:

74(1) Parts XXIII (sentencing) and XXIV (dangerous and long-term offenders) of the Criminal Code apply to a young person in respect of whom the youth justice court has ordered that an adult sentence be imposed.

[38] Part XXIII of the Criminal Code, referred to in s. 74 of the Act starts with s. 718 setting out the objectives of sentencing:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[39] Section 718.1 establishes as the fundamental principle of sentencing:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[40] Section 718.2 then sets out further sentencing principles, including consideration of aggravating or mitigating circumstances, similarity to sentences for similar offenders for similar offences committed in similar circumstances, and the instruction that an offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances. As well it includes as s. 718.2(e) a provision relating to aboriginal offenders:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

. . .

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[41] In R. v. B.W.P.; R. v. B.V.N., [2006] 1 S.C.R. 941, 2006 SCC 27, the Supreme Court of Canada addressed the sentencing regime in the Act in the context of a youth sentenced to a youth sentence. Writing for the Court, Justice Charron concluded that general deterrence was not a factor that could be considered when sentencing a young offender under the Act:

[4] The YCJA introduced a new sentencing regime. As I will explain, it sets out a detailed and complete code for sentencing young persons under which terms it is not open to the youth sentencing judge to impose a punishment for the purpose of warning, not the young person, but others against engaging in criminal conduct. Hence, general deterrence is not a principle of youth sentencing under the present regime. The YCJA also does not speak of specific deterrence. Rather, Parliament has sought to promote the long-term protection of the public by addressing the circumstances underlying the offending behaviour, by rehabilitating and reintegrating young persons into society and by holding young persons accountable through the imposition of meaningful sanctions related to the harm done. Undoubtedly, the sentence may have the effect of deterring the young person and others from committing crimes. But, by policy choice, I conclude that Parliament has not included deterrence as a basis for imposing a sanction under the YCJA.

[42] In rejecting the application of the principle of general deterrence, Justice Charron observed that its application would have the effect of increasing the penalty or making it harsher.

[43] Justice Charron likewise rejected the application of the principle of specific deterrence to imposition of a youth sentence.

[44] This case poses a different question than B.W.P. Rather than the question being whether the objective of deterrence of the Code applies to a youth sentence imposed under s. 38 of the Act, the question here is whether s. 3 of the Act bears upon an adult sentence imposed pursuant to s. 74 of the Act which allows the otherwise forbidden application of s. 718 to a young person.

[45] We have been referred to three cases of trial courts outside this jurisdiction that grapple with this issue. The first is R. v. A.A.B. (2006), 31 M.V.R. (5th) 135, 2006 NSPC 4, a decision of the Nova Scotia Provincial Court; the second is R. v. P.H., [2006] O.J. No. 885, a decision of the Ontario Superior Court of Justice; and the third is R. v. D.S.D., [2006] M.J. No. 101, a decision of the Manitoba Provincial Court.

[46] In A.A.B. the trial judge concluded that "predominantly" the principles of sentencing set out in the Act applied to an adult sentence imposed under the Act and that the sentencing judge in sentencing a young person to an adult sentence was required to consider:

[72] … what just sanction will have meaningful consequences for Mr. A.A.B. and will promote his rehabilitation and reintegration into society and thereby contribute to the long-term protection of society, what just sanction will have that effect and hold him accountable for this serious crime that he has committed.

[47] The same question was asked in P.H., with the answer that s. 3 was to be treated as a mitigating factor:

[78] … The YCJA recognizes, in s. 3(1)(b)(ii), that there is a fundamental difference between young persons and adults, and that the criminal justice system must take into account, in determining what is referred to in the Act as fair and proportionate accountability, that young persons have a greater dependency and a reduced level of maturity. In my view, the fact that an adult sentence is to be imposed on a young person does not change the need to be mindful of this reality.

[48] D.S.D. concluded with a view similar to that expressed in A.A.B.:

[175] It is my view that although an adult sentence will be imposed, the purpose and principles of sentencing set out in the Youth Criminal Justice Act should still be considered. In my view, the sentence I impose should have meaningful consequences for Mr. D.S.D. which promote his rehabilitation and reintegration into society and thereby contribute to the long-term protection of society and, at the same time, hold him accountable for the serious crimes he has committed.

[49] Crown counsel, Ms. Botz, contends that nothing in the Act directs a sentencing judge imposing an adult sentence to expressly consider or emphasize the principles of s. 3. She observes that s. 74 makes no reference to that provision, in contrast to s. 38 which expressly refers to s. 3.

[50] The question is, as I see it, whether an adult sentence imposed pursuant to s. 74 is, in law, a sentence under the Act, or whether instead an adult sentence removes the offender from any ameliorating aspect of the Act. As a question of statutory interpretation, does the language of s. 74 exclude application of the principles set out in s. 3?

[51] In considering this question, the position and content of s. 3 in the Act are significant. Its location advertises it as a provision applicable to all that follows, which would include s. 74 as well as s. 38, both of which are found in Part 4 of the Act. It includes the statement "The following principles apply in this Act", and its content sets the rule for interpretation:

3(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

[52] Barring inconsistency between s. 3 and Part XXIII, I see no basis for concluding that s. 3 has no application.

[53] The key provision in Part XXIII, for the purpose of this comparison, is s. 718. I see nothing in that section which is inconsistent with s. 3. In my view, the two provisions may be read together to give a sentencing response to an offence that, in being greater than is allowed for a youth sentence, both responds to the objectives of s. 718 and reflects the principles of s. 3. On this view, s. 3 simply heightens the consideration a court must give to the age of a young person by directing an approach to sentencing which expressly recognizes, as set out in s. 3(1)(b), the greater dependency of young persons and their reduced level of maturity. It is a provision that recognizes that it is not only a young person’s physiological growth that is incremental.

[54] The criminal law for adult offenders presumes maturity. In contrast, the Act recognizes that a young person’s maturity, like their physical stature, increases progressively, as, too, their dependency diminishes gradually, until he or she reaches the stage of full accountability. That concept applies not only in sentencing considerations, but, in cases of the very young, also to the question of whether the young person has the capacity to form the intent necessary for conviction. Even in ancient Saxon times, very young people (under the age of 12) were considered incapable of forming intent necessary for a finding of guilt in a crime requiring intent. The same appreciation of immaturity is found in Blackstone's Commentaries on the Laws of England, Book 4, para. 23, where it is observed that the issue of guilt of a young person committing a felony was determined solely "by the strength of the delinquent's understanding and judgment." It is a notion that is reflected in the definition of a young person as a person between the ages of 12 and 18. To hold that s. 3 has no bearing upon an adult sentence of a young person, is to move away from that long-held appreciation of the limitations of the not-yet-matured mind. I see no evidence in the Act that Parliament intended such a result.

[55] I conclude that an adult sentence pursuant to s. 74, such as the one imposed on Mr. Pratt, remains a sentence under the Act. That being so, I see no basis upon which to say that the principles set out in s. 3 do not apply. To put it another way, the effect of s. 74 is to bring into the sentencing of a young person the principles of s. 718 which are otherwise not applicable, such as specific and general deterrence, and not to exclude the general principles set out in s. 3.

[56] I conclude, therefore, that in sentencing a young person to an adult sentence pursuant to s. 74 of the Act, the sentencing judge was required to strive to fashion a sentence that addresses the objectives of s. 718 of the Code and as well emphasizes, to the degree possible in the context of the evidence before the court, both the young person's rehabilitation and reintegration and "fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity".

[57] The result is that while an adult sentence is reserved, in the language of B.W.P., "for the most serious crimes", the adult sentence imposed will not necessarily be lock-step with the sentence that would be imposed upon an adult in circumstances that are identical except for the offender's age. Only as the age of the offender approaches the cut-off age in the definition of "young person" is that result more likely. In other words, the fact of youth creates a ‘discount’ from the adult tariff of sanctions. As Julian V. Roberts and Nicholas Bala in "Understanding Sentencing Under the Youth Criminal Justice Act", (2003) Alta. L.R. 395 observed at p. 412: "This correlation between age and severity of punishment is the one feature common to all Western juvenile justice systems". I would not say, given the language in s. 3 of the Act, that this means that a sentence that otherwise fits the crime will always be reduced to take account of rehabilitation and reintegration, as the extent of the opportunity for rehabilitation and reintegration will be individual to the character and circumstances of the offender. Likewise, there may be cases in which the objective of "fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity" admits of little mitigation of the sentence imposed. Yet it may generally be expected that the fact of youth, considered within the terms of the Act , will moderate a sentence, particularly for those who are some time away from the upper limit of the definition of a young person.

[58] What is required, in my view, is that the sentencing judge consider the factors addressed in s. 3 of the Act. This means that the significance of rehabilitation, an important principle under s. 718 of the Code, is enhanced in the sentencing of any young person. It means as well that the application of the principle of accountability must recognize the deficiencies in maturity of the young person and his or her greater dependency as that may be revealed in the evidence before the court.

[59] In this case, the sentencing judge addressed Mr. Pratt's young age and considered the principle of rehabilitation as expressed in s. 718 of the Code. He did not advert, however, to the direction in s. 3 to emphasize Mr. Pratt's rehabilitation and reintegration. Nor did he expressly address the need for fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity. In effect, his reasons for judgment appear to proceed as if s. 3 of the Act did not bear upon the sentence he was directed by s. 74 to impose. This reflects, in my view, an error of principle.

Under-Emphasis of the Principle of Rehabilitation and the Offender's Circumstances

[60] Mr. McKinnon contends that, apart from the emphasis required by s. 3, the circumstances of Mr. Pratt were under-emphasized and the principle of rehabilitation given too light an emphasis.

[61] Above I have explained why I consider that s. 3 of the Act has force even in the imposition of an adult sentence upon a young person. It is my view, however, that apart from s. 3, the concerns expressed by Parliament in s. 3 are nonetheless required to be considered by a sentencing judge. They are factors that, combined with all the other information before the court as to the nature of the crime and the potential for rehabilitation, should be reflected in the sentence ultimately imposed. The question posed by Mr. McKinnon here is whether those considerations received the attention required, even in the absence of s. 3 of the Act. This is a question that can be answered in the consideration of the fitness of the sentence, the third ground of appeal, to which I now turn.

Fitness of Sentence

[62] The ultimate enquiry for this Court is the fitness of the sentence imposed, considering the circumstances of the offence and the offender, and the applicable principles.

[63] Consideration of fitness of sentence starts with consideration of the offence and the offender, illuminated by the sentences accorded to like offenders for like crimes, if such can be discovered.

[64] The circumstances of the offence, as recounted by the sentencing judge above, are egregious. Not only did Mr. Pratt's actions at the gas station and in fleeing result in the terrible death of Mr. DePatie, they were part of a sequence of criminal behaviours, and displayed a level of disregard for the consequences of his actions that must be reflected in the sentence imposed.

[65] As to Mr. Pratt's circumstances, they, too, are set out. He is an aboriginal youth with a disadvantaged background, lacking the consistent guidance of dependable adults to help him attain an appropriate level of maturity. He left school when 15 and thus was ill-educated. He abused alcohol, including to the point of drunkenness on the night in question. He was young. He displayed remorse, and the report from the time spent in pre-trial custody offered an expectation that he may be reintegrated into society as a contributing member of the community. The sentencing judge commented that his prospect for rehabilitation was good.

[66] Both counsel presented cases said to bear some similarity to these circumstances. Mr. McKinnon referred us to R. v. W.(J.A.), (2006) 209 C.C.C. (3d) 539, 2006 BCCA 228; R. v. Mercier (K.E.) (2004), 206 B.C.A.C. 299, 2004 BCCA 663; R. v. Peters (D.W.A.) (2000), 138 B.C.A.C. 38, 2000 BCCA 307; R. v. Johnson, supra; R. v. Gillies (A.J.) (1998), 107 B.C.A.C. 157; R. v. Sousa (1991), 4 B.C.A.C. 101; and R. v. V.(D.D.) (2005), 198 C.C.C. (3d) 484, 2005 BCCA 396.

[67] Of these, Mercier, Gillies, Sousa, and V.(D.D.) offer some guidance. Mercier involved a 38-year-old aboriginal offender who entered a guilty plea to manslaughter; when intoxicated, Mercier kicked the deceased, squirted bleach on him and continued to kick the victim even after he was told by others to stop. Mercier had a long history of prior criminal convictions, thirteen of which were for violent offences. On a Crown appeal, this Court increased the effective sentence to six years' imprisonment.

[68] Gillies, in contrast, was a case of a 17-year-old young offender who pulled out a knife and stabbed a youth to death. He was convicted of manslaughter. Alcohol and drugs were involved. On reducing the sentence from an effective ten-year sentence to a seven-year sentence, McEachern C.J.B.C. for the Court said:

[11] … While the Criminal Code prescribes a range of from suspended sentence to life, four to six years has been the usual range for most manslaughter cases for as long as I can remember.

[12] There are, of course, other cases where sentences of eight to ten years or more have been given. In most of those cases, however, there were other factors that made the offence much more serious. Cases were cited where there was torture, long records of violent offences, violence against a spouse, woman or child, and killing in the course of a robbery.

[69] Sousa concerned a 19-year-old offender who pleaded guilty to manslaughter. He armed himself with a knife and when chased by a group, turned and stabbed the victim with what was described as "brutally excessive" force. This Court upheld his sentence of seven years, which it said was at the high end of the range for this type of situation.

[70] V.(D.D.) concerned a 16-year-old offender who, with a group of youths, broke into a home with a marihuana grow-operation. He struck the deceased, but did not deliver the fatal blow. V.(D.D.) was sentenced to an adult sentence of 18 months plus three years' probation. This Court upheld the sentence.

[71] Ms. Botz presented other cases said to be similar: C.(J.M.), supra; R. v. Slater (G.J.) (1999), 128 B.C.A.C. 83, 1999 BCCA 421; R. v. Caron (D.T.) (2000), 195 Sask.R. 119, 2000 SKQB 298; R. v. S.(J.J.) (1999), 14 M.V.R. (4th) 180 (Ont. Prov. Div.), aff'd (2001), 14 M.V.R. (4th) 177 (Ont. C.A.); R. v. Barton (2003), 180 B.C.A.C. 286, 2003 BCCA 206; R. v. Coopper (N.B.) (2002), 170 B.C.A.C. 3, 2002 BCCA 259; R. v. Weir-Jones (1994), 48 B.C.A.C. 295; and R. v. Green (O.R.) (2001), 160 B.C.A.C. 121, 2001 BCCA 672.

[72] C.(J.M.) was the case considered by the sentencing judge in this case to be most analogous to Mr. Pratt's offence. The 19-year-old offender intentionally set a driverless car in motion, resulting in a collision with a motorcycle and the death of two people. He received a sentence of ten years in addition to six months' pre-trial custody. Although considered by the sentencing judge as most similar to these events, the case concerned a person past the age of "young person" who had a significantly greater record — six youth court convictions and one adult conviction — than does Mr. Pratt.

[73] Slater concerned a 25-year-old who escaped by vehicle when police tried to arrest him. After an 11-minute chase, his vehicle collided with another, killing its occupant. Mr. Slater was under the influence of marihuana and cocaine at the time of the offence. This court upheld a sentence of nine years for criminal negligence causing death.

[74] Barton concerned a 22-year-old aboriginal offender who, carrying a gun, killed the occupant of a home while breaking in with the intention of robbing a marihuana grow-operation. He had a lengthy criminal record. His sentence of fourteen years was upheld by this court.

[75] In Weir-Jones, a 20-year-old man returned to a property he had been asked to leave, disconnected the phone line and shot a guest. His sentence of eight years was upheld by this court.

[76] These cases demonstrate a broad range of sentences, circumstances and offenders, as well as the scarcity of similar cases, particularly involving persons as young as Mr. Pratt.

[77] Taking what guidance I can from the cases, recognizing that the sentencing judge found optimism in the prospect of Mr. Pratt’s rehabilitation, and considering his degree of dependency as reflected in the facts found by the sentencing judge, I consider that the sentence accorded Mr. Pratt fails to give sufficient consideration to the principles set out by Parliament in s. 3 of the Act. The effect, in my view, is a sentence that is excessive in all the circumstances and is not consistent with the greater dependency and reduced maturity of this 16-year-old offender as reflected in the evidence before the Court.

[78] There is another aspect of Mr. Pratt’s circumstances which, in my view, also requires greater emphasis. Section 3(1)(c) of the Act provides that:

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

…

(iv) respect … ethnic, cultural … differences and respond to the needs of aboriginal young persons …

[79] This is in addition to s. 718.2(e) of the Criminal Code which requires that consideration be given to all available sanctions for aboriginal offenders.

[80] Section 718(e) was discussed in R. v. Gladue, [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385 wherein the Supreme Court of Canada confirmed that s. 718(e) applies to all aboriginal offenders and includes consideration of the background factors which may have played a role in bringing the offender before the courts. Where the offence is a violent or serious one and the principles of denunciation and deterrence predominate, however, the appropriate sentence will not differ between aboriginal and non-aboriginal offenders: R. v. Wells, [2000] 1 S.C.R. 207, 2000 SCC 10.

[81] However, s. 3(1)(c)(iv) of the Act is specific direction as to the attention that must be given to the aboriginal background of a young person. Here Parliament has said to the courts that they must respond to the needs of aboriginal young persons that come before them, while maintaining a standard of fair and proportionate accountability. It is a consideration that, if it has any consequence, can only lead to mitigation of sentence, either in duration or as to its terms.

[82] In this case, the sentencing judge addressed the issue of Mr. Pratt’s aboriginal background:

[42] The defence points out Mr. Pratt’s aboriginal status and the supportive community he derives from it, but concedes that it will have little bearing in the sentencing of an offender who has committed a serious violent offence. …

[83] While it is so that the more violent the offence, the less bearing aboriginal status may have, in the case of a young aboriginal person before the courts, as was here the case with Mr. Pratt, and a history of broken family guidance and an absentee parent, as again was here the case, the Act requires greater attention to this circumstance than was accorded by the sentencing judge.

[84] I turn then to the sentence imposed in this case. The sentencing judge recognized that this was a sentence for manslaughter, not murder, but described the offence as at the ‘near murder’ end of the spectrum of manslaughter. The aggravating factors in the offence itself have already been discussed. But for Mr. Pratt's youth, I would not hesitate to say that the sentence imposed was fit.

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

[86] Considering the instruction in s. 3 of the Act, and s. 718 of the Criminal Code, considering all of the circumstances here present, and acknowledging the serious view taken by the sentencing judge of Mr. Pratt’s actions, I would grant leave to appeal and reduce the effective sentence to seven years. This remains, in the scheme of youth sentencing, a very heavy sentence, but it is not, in my view, one that could be said to be crushing to this young person who faces the challenge of atoning for his offence.

[87] The sentencing judge gave credit at the ratio of one and one half for the pre-trial custody. There is no particular formula required in this calculation, as recognized by Finch, C.J.B.C. in V.(D.D.):

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

[88] In this case Mr. Pratt served fourteen months of pre-trial custody. I would credit him at a ratio of one to one, grant leave to appeal and allow the appeal by reducing Mr. Pratt’s sentence to five years, ten months' incarceration, for an effective sentence of seven years.

“The Honourable Madam Justice Saunders”

I AGREE:

“The Honourable Mr. Justice Smith”

I AGREE:

“The Honourable Madam Justice Kirkpatrick”