R. v. Z.(M.A.), 2013 ONCJ 341

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. Citation: R. v.

Z.(M.A.) , 2013 ONCJ 341 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — M.A.Z., a young person (or “young persons”) Before Justice Borenstein Heard on February 25 and May 8, 2013 Reasons for Judgment released on June 19, 2013 Brock Jones ............................................................................................................... for the Crown Lon Rose .......................................................................................... counsel for the accused M.A.Z.

BORENSTEIN J.: [ 1 ] M.A.Z. has pled guilty to aggravated assault, assault with a weapon and failing to comply with a recognizance. All of these offences occurred on November 1, 2012. He committed these offences five days before he turned 18.

[ 2 ] The two victims, 19-year-old Aaquil Nagori and 17-year-old Bailil Lokhat were students at Cedarbrae Collegiate. [ 3 ] Nineteen-year-old H.B. was also a student of Cedarbrae. M.A.Z. was his cousin. M.A.Z. had been previously expelled from Cedarbrae. [ 4 ] On November 1, 2012, H.B. and Nagori had a verbal argument. H.B. believes Nagori called him a pussy. [ 5 ] After school, Nagori and Lokhat went to the library. They then went outside to have a cigarette when a car pulled up.

H.B., M.A.Z. and a third man exited the car and approached Nagori and Lokhat. [ 6 ] M.A.Z. said to Nagori, “why are you fucking with my cousin”. M.A.Z. then struck Nagori who fell to the ground. M.A.Z. and H.B. then both punched and kicked Nagori. Lokhat tried to stop the attack. M.A.Z. pulled out a knife and began to stab at Nagori. He stabbed at him four times in the torso area; however, Nagori was wearing a down filled jacket and was moving back. He avoided being cut but his jacket was slashed and destroyed. M.A.Z. then walked over to Lokhat who had intervened to try to stop the attack.

M.A.Z. began stabbing Lokhat in the chest. M.A.Z. knocked off Lokhat’s baseball cap off his head. After stabbing Lokhat, M.A.Z. took the baseball cap. M.A.Z., H.B. and the third male all fled in the car. [ 7 ] While Nagori was not injured, Lokhat was stabbed in the upper chest. His lung was punctured and collapsed. A tendon in his hand was severed. [ 8 ] Three months before M.A.Z. committed this attack, he been charged with carrying a concealed knife as a weapon and two counts of breaching a recognizance. On the very morning of this stabbing, November 1, M.A.Z. was in Court on concealed weapon charges.

He was offered and signed up for extra-judicial sanctions. Then, later that day, he committed these violent crimes. [ 9 ] The impact of this crime on the victims could be easily inferred. The victim Nagori suffered a $400 loss to his clothing that was slashed. The victim Lokhat spent three days in the hospital. He had surgery and ten physiotherapy sessions. He missed half a semester of school. His breathing is not the same. He and his parents feel frustrated. He is scarred on his hand and his chest. [ 10 ] This violent act would have been terrifying to the victims – and over a minor comment.

That M.A.Z. could do this over something like that is worrying to say the least.

The fact that it happened the same day he was being offered EJS is striking. [ 11 ] The Crown submits that M.A.Z. should be sentenced to two years custody and supervision less any pre-trial custody as well as probation and an order that he provide a sample of his DNA and a five-year weapons prohibition [ 12 ] This offence occurred after the most recent amendments to the Youth Criminal Justice Act which now permits a Court to consider deterrence and denunciation as factors on sentencing. [ 13 ] The Crown submits that this was an offence of extreme violence over a trivial slight that had nothing to do with M.A.Z.

The Crown submits that this is the type of offence that these amendments were meant to address. The Crown submits that deterrence and denunciation should have some impact upon the sentence. [ 14 ] The defence submits that a sentence of approximately 12 months of custody and supervision followed by probation would be appropriate for this first offender at this time.

The defence submits that the sentence should be comprised of four months secure custody, four months open custody and four months supervision as that would have M.A.Z. out of custody for the September school year which would offer the best roadmap for his rehabilitation. Pre-sentence custody [ 15 ] M.A.Z. has 229 days of pre-trial custody. It is customary to credit each day of pre-trial custody as 1.5 days for youths. M.A.Z. will be credited with the equivalent of 11 months of pre-trial custody. Personal Circumstances of M.A.Z. [ 16 ] A pre-sentence report was prepared.

The author interviewed M.A.Z., his wife, his mother and his two social workers at the Roy McMurtry Youth Centre where M.A.Z. has been detained since his arrest. [ 17 ] M.A.Z. is 17 years old. He is married. He has two siblings who live with his mother in Toronto. His father lives in Pakistan. His mother is unemployed. [ 18 ] M.A.Z.’s mother reported no behavioural problem with M.A.Z. Things began to change when he turned 16. [ 19 ] M.A.Z. was admitted to the Roy McMurtry detention centre on November 5, 2012. He acted appropriately at first. However, on December 10, he was involved in an altercation.

He was the victim of an attack one day and retaliated the next. [ 20 ] In March 2013, there was a more serious incident. M.A.Z. and another youth were involved in an attack on a corrections officer. According to the Crown, the other youth grabbed the officer around the neck while M.A.Z. punched the officer in the head. Staff intervened and the matter was dealt with internally. According to M.A.Z.’s counsel, M.A.Z.’s friend had a “history” with the officer. That friend tried to choke the guard and a scuffle occurred. M.A.Z. then “defended” his friend by punching the guard.

According to the pre-sentence report, M.A.Z. expressed remorse for this incident. [ 21 ] Young persons in custody receive privileges commensurate with the level they achieve. According to the P.S.R., M.A.Z.

was at the bronze level. However, according to M.A.Z., he is at the gold level meaning he has advanced to close to the highest level. He has taken some high school courses at the detention centre and has 19.5 credits toward his high school diploma. He has also taken various anger management courses and has obtained those certificates however those courses are one day or less in duration.

On today’s date, he presented a further anger management certificate which he says required that he complete five sessions of anger management. [ 22 ] There are many aggravating features of this case. [ 23 ] This was a very violent attack. A weapon was concealed and then used. It was clearly premeditated. M.A.Z. came looking for his victims for the purpose of attacking and stabbing them. There were two victims, one of whom suffered serious injuries. Both victims were stabbed at multiple times. There were multiple attackers. It was over the most trivial of slights.

M.A.Z. accepted EJS that very morning in relation to the charges of carrying a concealed weapon and breaching his recognizance. While he has no record, he would have admitted his involvement in those earlier offences as a precondition to EJS. Accepting EJS in the morning and then committing these offences that afternoon is very aggravating. Further, he was still on a recognizance at the time which is also aggravating.

And the concealed weapon in the earlier charge was a knife which is aggravating. [ 24 ] By way of mitigation, M.A.Z. has pled guilty, he is young and he has no record. [ 25 ] Sentencing under the Y.C.J.A. should seek to hold a young person accountable for his or her conduct by imposing just sanctions that have meaningful consequences to the young person and promote his or her rehabilitation and reintegration into society. The focus of sentencing is to protect society through an attempt to rehabilitate and reintegrate the youth back into the community.

As a result of the recent amendments, courts can consider the need for specific deterrence and denunciation in sentencing. [ 26 ] The sentence must be the least-restrictive sentence capable of achieving the purpose of sentencing. The sentence must be proportionate to the seriousness of the offence and the offender’s degree of responsibility. [ 27 ] To quote the 2009 decision of R. v. K.L . by the Ontario Court of Appeal, “at bottom, [the] sentence must be proportionate to the seriousness of the offence and the degree of [the young person’s] responsibility”. [ 28 ] In R. v. A.O. , [2007] O.J.

No. 47 , the Ontario Court of Appeal discussed these concepts holding that: [45] [T]he question in this case is what is meant by the terms accountability, meaningful consequences, rehabilitation and reintegration. One obvious point is that meaningful consequences cannot be synonymous with rehabilitation and reintegration. Parliament has used the different terms and is presumed to have intended different meanings. [citations omitted] [46] In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by Lamer C.J.C. in R. v.

M. (C.A.) [citation omitted] 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 . … Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blame-worthiness of that particular offender . The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct .

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. [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”. [48] The need to consider the normative character of an offender’s behaviour necessarily requires the court to consider societal values.

But what the court cannot do is add on to a youth sentence an element of general deterrence or denunciation. [ 29 ] Accordingly, the concept of accountability consists of three main components: (1) the intentional risk taking of the offender; (2) the consequential harm caused by the offender; and (3) the normative character of the offender’s conduct [ 30 ] In assessing each of these factors, M.A.Z.’s conduct was extreme and worrying. [ 31 ] He sought out and pursued his victims in

an act of retaliation for a perceived slight to his cousin. He armed himself with a knife, sought out his victims. He stabbed at them both repeatedly about the torso. He sought to cause very serious injury to both. His intentional risk taking was extreme. [ 32 ] The harm caused to the victims was serious

[ 33 ] With respect to the normative character of this conduct, I agree with the Mr. Jones, the Crown, where he writes: “the normative character of M.A.Z.’s conduct is horrendous. After entering into a diversion program for a knife-based offence a short while beforehand, and while bound by a recognizance of bail in relation to that outstanding offence, he planned to attack two victims with another knife. Crimes of violence by their very nature are an affront to Canadian societal values.

But the particular crimes of violence in the circumstances of these offences consitute nothing short of an outright challenge to the integrity of the youth justice system. Indeed, …they make a mockery of the use of extra-judicial measures and the purpose behind them.” [ 34 ] Accordingly the need to hold M.A.Z. accountable is great. And that determination is made before any consideration of the need for specific deterrence or denunciation. [ 35 ] M.A.Z. needs to be specifically deterred from committing further offences.

On the same day he went to court and accepted responsibility for his earlier offence, he chose to again arm himself with a knife, seek out his victims and stab them repeatedly. He needs to know that he cannot commit crimes with impunity. It is hard to come to any other conclusion than the diversion he was offered caused him to believe there were no consequences for his actions. [ 36 ] In all of these circumstances, despite the absence of any prior record, M.A.Z.’s conduct requires a strong and forceful sentence. [ 37 ] A custodial sentence is available pursuant to section 39(1)(

a) and is appropriate. This was a very violent offence that could easily have resulted in a charge of murder had the victim died. [ 38 ] In light of the fact M.A.Z. is being sentenced for multiple offences, the maximum sentence that can be imposed for this offence under the Y.C.J.A. is three years, inclusive of custody and probation. [ 39 ] M.A.Z. has served the equivalent of eleven months of pre-trial custody and that must be considered. [ 40 ] The Crown seeks a further 13 months secure custody and supervision order followed by probation.

The defence seeks a further year in custody followed by probation, but submits it should be comprised of secure, open and supervision. The defence submits that structuring the custody in that fashion would enable M.A.Z. to return to school in September which would greatly assist his rehabilitation and reintegration into the community. [ 41 ] In assessing the level of custody,

section 88 of the Y.C.J.A. provides that the court should consider the seriousness of the offence and the circumstances in which it was committed, the needs and circumstances of the young person including proximity to family, school, employment and support services, the safety of other young persons in custody and the interests of society. [ 42 ] In my view, M.A.Z. is not ready for open custody. His conduct in December and in March while in custody demonstrates that he continues to need to be controlled, for the safety of others.

However, returning to school would be in his interests, and if he successfully reintegrates into society, it would be in the public interest as well.

This would promote his rehabilitation and would contribute to the protection of society. [ 43 ] Having considered the nature of the crime, M.A.Z.’s background, the case law and the above principles, a further 12 months custody and supervision order is warranted followed by 12 months probation. [ 44 ] However, in view of the equivalent of eleven months of pre-trial custody, the custodial portion of the sentence will be primarily open custody and supervision M.A.Z. will receive a further two months secure custody followed by six months of open custody followed by four months supervision. [ 45 ] That will be followed by one year of probation on the following terms: ♦ He is to report to a probation officer. ♦ He will be subject to the mandatory terms of probation. ♦ In addition, he will reside at an address approved of by his probation officer. ♦ He will take and participate in any counselling or other programming that is recommended to him by his probation officers and sign all releases to enable the probation officer to monitor his compliance with this term. ♦ He will not possess any weapons as defined by the Criminal Code .

He will have no contact or communication directly or indirectly with the two victims of this matter. ♦ He will have no contact with his cousin H.B. unless at family gatherings with other family members present. ♦ He is to obey a curfew as determined by his youth worker. ♦ He will make reasonable efforts to seek and maintain employment or attend for educational programming or vocational training as approved of by his probation officer and provide proof of such efforts and attendance to his youth worker. ♦ He will be subject to a 5-year weapons prohibition pursuant to s. 51(1) of the Y.C.J.A. and there will be an order that he provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code .

Released: June 19, 2013 Signed: “Justice Borenstein”