R v HJR 2019 CarswellMan 46, 2019 MBPC 12, 153 W.C.B. (2d) 572
Mary Kate Harvie Prov. J.
Manitoba Provincial Court-Decided February 6, 2019
Accused gang member was one of four males who attempted to break into residence — In course of attempted break-in, pepper spray was discharged into residence and one of occupants was shot in arm — Aboriginal accused was 17 years old and was 15 years old at time of offence — Although he did not meet medical criteria for fetal alcohol spectrum disorder, accused had significant cognitive and personal challenges — Accused was convicted of breaking and entering and committing aggravated assault — Crown applied to have accused sentenced as adult — Application dismissed — There was no evidence that accused was involved in planning of incident, which was relevant in assessing his moral blameworthiness — Significant Gladue factors were identified by pre-sentence report, as accused's mother struggled with depression and addictions issues and his family was significantly affected by residential school experiences — Crown did not rebut presumption of diminished moral blameworthiness — Taking into account accused's party liability for offence, medical information, and Gladue factors, there was nexus between offending behaviour and deficits identified — Deficits confirmed accused's diminished moral blameworthiness, rather than rebutted it — Crown did not establish that youth sentence would be of insufficient length to hold accused accountable.