R. v. N.A., 2017 ONCJ 354

CITATION: R. v. N.A., 2017 ONCJ 354 DATE: June 2, 2017 COURT FILE No.: 14-Y-0057 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — N.A. Before Justice Sharman S. Bondy Released: June 2, 2017 Mr. T. Kavanagh ................................................................................................ for the Crown Mr. G.

Goulin ..................................................................................................... for the Accused BONDY J.: REASONS FOR SENTENCE 1: INTRODUCTION [ 1 ] This is the sentencing portion of this hearing. [ 2 ] N.A. was found guilty after trial to one count of aggravated assault. I found him to be a party to the offence however he never participated directly in the actual physical violence that was inflicted on E.W. The count of unlawful confinement was dismissed.

The Crown proceeded by indictment on the charge of aggravated assault. 2: BACKGROUND [ 3 ] The facts of this matter are briefly as follows. [ 4 ] On June 23, 2014 E.W. who was then 15 years of age was invited to J.D.’s apartment as he thought he was going to a social gathering with other young persons. Present at the apartment with J.D. was N.A., J.R. and S.B, all young persons as defined under the Youth Criminal Justice Act (hereinafter called the “ YCJA ”) and a young adult, Jordan Murray. Thereafter, E.W. was viciously beaten and that beating was recorded.

E.W.’s injuries are significant, causing a serious deleterious effect on the quality of his life and his ability to realize his goals. His injuries are detailed in my Reasons of August 15, 2015 relating to J.D. and J.R. and my Reasons of February 1, 2017 relating to N.A. [ 5 ] Jordan Murray’s charges were withdrawn when the evidence revealed that he stood by and merely recorded the beating. [ 6 ] S.B. pleaded guilty to the included offence of simple assault as the true extent of her participation was not known at the time of her plea and sentence.

She received a sentence of 18 months’ probation with conditions. [ 7 ] J.R. and J.D. pleaded guilty to the included offence of assault causing bodily harm. The true extent of their active participation was only obtained shortly before their sentencing date when a technical investigator was able to access the stored material on J.R’s iPod. J.D. is observed as the main assailant and received a maximum sentence of two years custody less pre-trial custody with two years’ probation. J.R. was an eager participant and she received a sentence of 6 months custody less pre-trial custody with 18 months’ probation.

[ 8 ] My Reasons of February 1, 2017 detail my findings in this matter. I found that N.A. was a party to the assault when he abetted J.D. in the commission of the offence. I found it was objectively foreseeable to N.A. that J.D. would cause the bodily harm that he did and that E.W. would suffer the consequences of J.D.’s repeated kicks and blows to his head, skull and face.

As a result of the assault on E.W. he suffered a traumatic brain injury with resulting subdural hematoma with brain bleed, reduction of brain density, increased cranial fluid retention with profound psychological effects together with permanent vision loss and no peripheral vision to either eye.

I found that N.A. did not merely stand by or remain present, that that N.A. understood what was being done, he knew that J.D. intended to continue his assaults on E.W. and N.A.’s words, gestures and actions were intended to encourage and did in fact willfully encourage and facilitate J.D. in his continuing assaults on E.W. [ 9 ] Paragraphs 65 and 66 of my Reasons provide the detail of N.A.’s conduct and the words he used.

Most significantly, at paragraph 65 I say that: At the point where J.D. delivers his most vicious blows to E.W.’s head in the bedroom, N.A. can be heard to say, even after J.D. takes a break in kicking E.W. “ no don’t stop. Keep going bro, don’t stop. Keep going bro”. And even as J.D. continues to deliver his blows to E.W.’s head N.A. can still be heard to say, “you’re giving him a fucking”. [ 10 ] In this case I had the benefit of a digital recording which captured N.A.’s conduct, gestures and words during the assault on E.W. That recording was profoundly useful.

After trial and after considering the digital recording, the agreed-upon facts and N.A.’s testimony including his admissions, all of this led me to the conclusion that his explanations had no air of reality to them; he could not explain his behaviour and could not explain away his conduct. I specifically rejected N.A.’s explanation that he was scared, joking, that he stayed in the apartment during the assault to assist E.W. and protect him, that he was in a state of shock, that his words and gestures were simply his attempt to lighten the mood or that he was simply not sure what would happen during a fight.

To repeat, all these explanations were expressly rejected by the Court. 3: THE VICTIM IMPACT STATEMENTS [ 11 ] The victim impact statements filed show the continuing and long-term impact of E.W.’s assault upon him and his family. He states that his injuries have destroyed his life. After the assault and his injuries, he quit school due to ongoing emotional and physical problems. He cannot attend at the local mall as he is fearful that he will be attacked; he cannot complete his life’s dreams, such as going into the army, finish cadets or drive a truck like his father.

He lives with constant anger and developed a dependency on marijuana to ease his headaches. [ 12 ] As for his mother, she describes E.W.’s trauma as not only his, but the whole family. Her marriage to E.W.’s father has ended. She has resigned from one job and used and uses vacation time for court, doctor and hospital visits. She describes E.W. as wandering and lost in a society that wants to help him but he does not trust anyone to help him. She adds that he has refused counselling and lives a roller coaster life of uncontrollable situation and extreme emotions.

She suffers from nightmares and is heartbroken over the failed hopes and dreams that she had for her son. She wants him to be safe and eating decently as he finds it difficult to live and stay in one place. [ 13 ] E.W.’s father’s statement simply says “that as you (meaning N.A.) sit there before the Honourable judge wondering what your outcome will be, you need to know that I will still be caring for my son’s needs for the rest of my natural life because of this attack you were involved with”. 4: THE PRE-SENTENCE REPORT FINDINGS [ 14 ] N.A. is now 19 years of age, he was 16 at the time of this offence.

He has no criminal record. He has no substance abuse issues. He comes from a loving and supportive family; his mother and father are divorced, he has one sister. He is described as respectful, sensitive and protective; a responsible young man in all respects. He was apparently bullied as a youngster and he became a follower to be accepted by his peers. His parents describe him as still suffering emotionally and physically since the assault (i.e. sleeplessness, recurring thoughts and dreams, feeling overwhelmed etcetera). He has not engaged in ongoing counselling to address his depression and anxiety.

He attended one session only and stopped because the session made him feel overwhelmed. He has not taken the medications prescribed for him. His parents think he needs ongoing therapy and counselling. [ 15 ] After this assault, N.A. completed secondary school and has been employed in a series of jobs. He waited to start any post-secondary education as he awaited the outcome of this trial and sentencing. He has various trade certifications and wants to obtain a red seal in all trades which will take him a period of ten years to complete.

He is expected to pay his legal fees for these proceedings and is working to do so. [ 16 ] N.A. is described as remorseful for the victim E.W. and his involvement but the report indicates he continues to express a number of explanations which are inconsistent with the Court’s findings that he participated as a party. He continues to state that he was in shock, terrified, afraid, powerless, and fearful and he did not know what to do at the time of the assault. In the report, he agrees that his behaviour on the recording does not match his expressed feelings.

He explains that his testimony at trial and his admissions of his wrongdoing are a reflection that he was confused, feeling overwhelmed and struggling to remember; during the trial; that he felt absent of body when he gave his testimony. He states that he needs therapy and counselling. He has little insight into the circumstances of his offence and his offending. 5: THE S. 34 ASSESSMENT FINDINGS [ 17 ] N.A.’s psychological assessment reflects that he is well within the average range of intellectual or cognitive functioning.

This means that N.A. possessed the capacity to understand the nature and consequences of this offence, he had the capacity to understand what was happening during the assault in June of 2014, and he has the mental capacity to benefit from future intervention and therapeutic support. [ 18 ] According to Dr. Ricciardi, N.A. is reporting and experiencing significant mental health concerns regarding trauma, anxiety, depression and stress following the events of June 2014.

He requires ongoing therapeutic intervention (i.e. therapy) for a fairly substantial period of time (i.e. at least six to nine months) to learn more effective coping strategies together with the possibility of

medication. N.A. shows feelings and remorse for E.W. and acknowledges the impact of the assault on E.W.’s parents, however according to the assessor he continues to struggle with acknowledging his role and his participation in the assault. He continues to explain that what he did wrong was that he did not do enough to stop the assault or remove E.W. from the situation. He minimizes his involvement in the assault. He offers as an explanation that E.W. saw him at school after the assault and had “no hard feelings” towards him.

According to the assessor, N.A. does minimize the details of his role in the assault as to acknowledge them would cause him significant feelings of distress, anxiety and sadness. Another explanation is that he has grown older since the time of the assault and possibly matured on an emotional level. [ 19 ] According to the assessor, N.A. was likely traumatized to some degree by his participation and exposure to the physical violence and psychological aggression that occurred during the assault and this trauma has further developed over the past two-and-a half years.

Psychological testing shows marked distress and impairment in functioning; an individual who is suspicious, somewhat hostile, acutely tense, fearful and hypersensitive. He shows signs and symptoms consistent with depression, poor self-concept, discomforting anxiety, tension and symptoms related to traumatic stress. N.A. indicated to the assessor that he is agreeable to engage in counselling and treatment and understands that there should be consequences for his actions.

He is deemed a low risk to engage in further violence, according to the assessor he requires reduced supervision and would likely not be violent or reoffend seriously. 6: THE ISSUE [ 20 ] At issue then is what is the appropriate sentence to impose on a young person in these circumstances? The Crown seeks an order of custody for a period of nine months, six months to be served in secure custody followed by three months’ community supervision and followed by a term of probation.

The defence seeks an order that N.A. serve a long period of probation or alternatively, a deferred custody order. 7: THE LAW [ 21 ] As I said in my sentencing of R. v. J.D. and J.R., 2015 ONCJ 550 ; [2015] O.J. No. 5228 , the Youth Criminal Justice Act (hereinafter called the “ Act ” or the “ Y.C.J.A .”) has been the subject of much

interpretation and debate since its original enactment in 2003 and its subsequent amendments including Bill C-10 which came into force on October 23, 2012. The Act’s

preamble and sections 3 and 38 particularly all seek to address the spirit and principles of the legislation focusing on the long-term protection of the public, an individualized sentencing process and various attempts and efforts to reconcile what appear to be conflicting principles relating to custody as a last resort, fair and proportionate accountability and rehabilitation and reintegration contrasted with the need to impose meaningful consequences, a sense of responsibility and respect for societal values. [ 22 ] In J.D. and J.R .

I said that as Canada is a signatory to the United Nations Convention on the Rights of a Child, young persons have special guarantees, including the recognition that young persons have diminished moral blameworthiness due to their reduced level of development and maturity. [ 23 ] I will repeat the salient sections of the Act again for this sentencing with this offender. [ 24 ] Part of the

preamble of the Youth Criminal Justice Act reads as follows: ...AND WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons; ... [ 25 ] Section 3(1)(a), (

b) and (

c) of the Youth Criminal Justice Act reads as follows: 3(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must 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 … [ 26 ]

Section 38 of the Youth Criminal Justice Act reads as follows: 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 acknowledgment of the harm done to victims and the community; and (

f) subject to paragraph (c), the sentence may have the following objectives: (

i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences.

(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. [ 27 ] Section 39(1), (2) and (3) of the Youth Criminal Justice Act reads as follows: 39(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless (

a) the young person has committed a violent offence; (

b) the young person has failed to comply with non-custodial sentences; (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act,

chapter Y-1 of the Revised Statutes of Canada, 1985; or

(

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence aresuch that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38.

(2) If any of paragraphs (1)(

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youthsentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in thecircumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with thepurpose and principles set out in

section 38.

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (

a) alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance withprevious non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances. [28]

Section 39 then is the gateway to custody subsection. Young persons can only be sentenced to custody if one of thegateways is breached. Even then subsections (

a) through (

c) require that the Court consider all alternatives to custody that are reasonableand then having determined they are not reasonable, they must fail to accord with the principles and purposes of s. 38 before an order ofcustody can be imposed. A section 39(1)(

d) finding or a finding of exceptionality with an indictable offence similarly requires that I findthat a non-custodial sentence would be inconsistent with the purpose and principles of s. 38. [29] Judicial

interpretation provides an array of cases where the courts have consistently provided a narrow

interpretation tothe Act to ensure the object and scheme of the Act so as to reduce the overuse of custody for non-violent young offenders. In R. v. B.W.P. 2006 SCC 27 , [2006] 1 S.C.R. 941 the Supreme Court of Canada concluded that deterrence, general or specific, was not aprinciple of sentencing under the Y.C.J.A. Yet, I would note that s. 38(2)(

f) now reads the subject to proportionality to the seriousness ofthe offence and the offender’s degree of responsibility that a sentence may have the objective to denounce unlawful conduct and to deterthe young person from committing offences. In R. v. C.D. (2005) 2005 SCC 78 , 203 C.C.C. (3d) 449, the Supreme Courtfavoured a narrow

interpretation to the words violent offence used in s. 39(1)(

a) preferring a harm-based definition focusing on the bodilyharm caused or attempted by a young person. At paragraph 87 the Court defined violent offence as an offence in the commission ofwhich a young person causes, attempts to cause or threatens to cause bodily harm. Amendments to s. 2 of the Y.C.J.A. now provide aprecise definition for that term. [30] In R. v. R.E.W. (ON CA), [2006] O.J.

No. 265, the Ontario Court of Appeal found that s. 39 (1)(d)was to be read narrowly finding that the circumstances of the offence must be so aggravating that nothing less than custody wouldaddress the purposes and principles set out in s. 38. The late Justice Rosenberg found that one example is the case where thecircumstances are so shocking as to threaten widely-shared community values and where the circumstances of the offence, not thecircumstances of the offender, or the offender’s history apply. In J.D. and J.R. I noted that interestingly in R. v. N.B. [2011] O.J.

No.1715 (OCJ) the Court found that there were at least two gateways to custody under s. 39 of the Act in the circumstances of a protractedsexual assault by a 14 year old on a 12 year old girl. At paragraph 29 of the judgment the Court used terms like “out of the ordinary”,“unusual”, “the clearest of cases” and “manifestly capable of judicial explanation” in describing a finding that supports exceptional. [31] It is also important to remind oneself of what is meant by the terms proportionality and accountability found in the Act. The Court of Appeal in R. v. A.O. 2007 ONCA 144 , [2007] O.J.

No. 800 defined proportionality as the upper limit on asentence that can be imposed on an offender. Even if a long sentence were deemed necessary to rehabilitate the offender and hold him orher accountable, the Court said that a sentence must not be longer than what would be proportionate to the seriousness of the offence andthe offender’s degree of responsibility.

The Court defined accountability as the adult sentencing equivalent of retribution reflecting themoral culpability of the offender having regard to the intentional risk taking of the offender, the consequential harm caused by theoffender and the normative character of the offender’s conduct. [32] Another issue that I have considered is whether s. 39(1)(

a) or (

d) applies only to those offenders convicted asprincipals. In R. v. H.T.N. [2006] B.C.J. No. 974 the British Columbia Court of Appeal held that a party to an offence can fall within thedefinition of violent offence under s. 39(1)(

a) however, the fact that a young person is not an actual perpetrator must be considered at thesentencing stage and reflected in the sentence imposed as s. 38(2)(

c) provides that a youth sentence must be proportionate to theseriousness of the offence and the offenders’ degree of responsibility. [33] A similar sentencing approach relating to a party was also applied in R. v. K.C. 2011 ONCA 257 , [2011] O.J.No. 1478 where the Ontario Court of Appeal found that a party to an offence causing serious bodily harm was eligible for what was thena serious violent offender designation pursuant to the former s. 42 (9) of the Act. (See also R. v. A. S. [2013] O.J. No. 5589 (Ont. C.J.)paras 73 – 74 and R. v. R.T. [2013] O.J. No. 5812 (Ont. C.J.) paras 37 – 40).

In each of these cases however, the Courts were mindfulthat although a young person was subject to meaningful consequences for his or her offence, that one of the purposes of youth sentencingis to reduce the overuse of custody for non-violent young offenders, that custody should be used only as a last resort and that youthsentencing must be proportionate to the seriousness of the offence and the degree of responsibility of the young person involved. [34] During submissions there was much comment over the issue of exceptional for the purposes of s. 39(1)(

d) and the issueof reasonable alternatives to custody that would accord with the purpose and principles set out in s. 38. On the issue of exceptionality,let me repeat what I said in J.D. and J.R., namely, that given the ruling in R.E.W., I am likely restricted in making a finding ofexceptionality as there should be a narrow

interpretation to s. 39(1)(

d) which is intended to apply to rare, non-violent cases. However,although a finding under s. 39(1)(

d) might be duplicitous or unnecessary I found that s. 39(1)(

d) applied as well in the circumstances ofJ.D. and J.R., and I noted the findings of Justice Hearn in N.B. to support my conclusions. Secondly, on the issue of reasonablealternatives to custody, it is of course trite law that regardless of the availability of alternatives, what the cases continue to say is that anysentence must accord with the principles in s. 38 of the Act and must be proportionate to the seriousness of the offence and the degree ofresponsibility of the young person when this

section is applied. See s. 38 (2).

[35] Counsel did not provide me with case materials for reference during submissions despite the fact that s. 38(2) of the Actrequires that my sentence be similar to sentences imposed on similar young people found guilty of the same offence committed in similarcircumstances.

There are several cases that provide me with considerable guidance. [36] In R.E.W. a 14 year old offender was found guilty after trial of the offence of accessory after the fact to a grisly andhorrifying murder where he was found to know that the murderer intended to deal harshly and violently with the deceased, watched thebodies of two deceased be cut up and helped dispose of the body parts. The young person told no one of the murders and made full useof drugs and money that he actually stole from the murderer but had implied it was the deceased. The young offender had no priorcriminal record.

The Court factored the objective gravity of the offence, the youth’s role in the case, the extent of the youth’sinvolvement and its horrifying circumstances. The Court declined to make a deferred custody order and upheld the trial judge’s sentenceof six month’s custody with two-thirds to be served in custody and one-third in community supervision with two years’ probation tofollow. [37] In A.S. four young persons took

part in a variety of offences stemming from a brutal assault on two other youngpersons. Pleas were entered after the victims and several Crown witnesses testified. A surveillance video captured the attack. Oneyoung offender, A.S. (2) was 17 years old when he committed the offence. He ignited the conflict by confronting and engaging thevictims. He initiated the violence by pushing one of the victims. He became increasingly physical, held one of the victims by the shirtwhile another young offender hit the victim with a machete. He also engaged in a fight with the second victim.

He possessed noweapon, did not personally inflict the worst of the injuries but played a pivotal role in instigating and continuing the attacks. He wascredited for expressing and demonstrating remorse with a guilty plea; he displayed no particular insight into his actions or empathy forthe victims. He was on release for a previous assault for which he plead guilty. His risk for recidivism was assessed as moderate and hewas completely capable of rehabilitation. A.S. (2) was ordered to serve 168 days open custody and supervision with 16 months ofprobation.

This was in addition to two-and-a-half weeks of pre-sentence custody. [38] P.R. was another young offender on the scene with A.S. (2). He kicked and held a knife throughout the assault. Hewas described as polite, cooperative and pleasant. He served 22 days in secure pre-trial custody and thereafter on house arrest. After theoffence he made a genuine effort to improve. He was involved in volunteer work in his early high school years; he was a gifted athletebut started to use marijuana and alcohol. He had no criminal record and was assessed as a low risk to reoffend.

His tendency to becomefrustrated as well as influenced by peers placed him at risk for continued difficulties. He was capable of setting a new direction in hislife, but nonetheless the Court found his moral culpability as high and following the principle of parity, gave him the same sentence asA.S. (2). [39] In R. v. R.T. [2013] O.J. No. 5812 (O.C.J.) following trial, a 17 year old first time offender who was a friend of a familyand facilitated a home invasion robbery by three others was found guilty of a variety of offences including aggravated assault, forcibleconfinement and threats.

The young offender never participated directly in the actual physical violence inflicted on the family whichresulted in the severing of one of the victim’s thumb and toe (part of his thumb could not be reattached) and 17 staples to his back withresulting hospitalization. He left the apartment in the company of the three others after the assaults and robbery. He was found to be aparty to the various offences. The pre-sentence report revealed that the source of R.T.’s problems were his association with the otheroffenders.

He was described as making a substantial contribution to the commission of the offence overall although he did not directlyparticipate in the violence. The Court found that it was objectively foreseeable that bodily harm would occur in this situation. Acustodial sentence was imposed and a deferred custody order was rejected. The Court imposed a sentence of 70 days secure custody, 90days open custody and 53 days community supervision, to be followed by 18 months’ probation. [40] In R. v. D.S. 2008 ONCA 740 , [2008] O.J.

No. 4231 the Ontario Court of Appeal confirmed a sentence of twoyears custody and supervision with a period of probation when a 16 year old offender was present during a vicious assault, did notdeliver any assaultive blows, was closely intertwined in an assault on a victim who suffered permanent brain injury and hospitalization,and “where his presence and determination to get at the victim fueled the other offenders”. The sentencing judge described D.S. and hisaccomplice who levied the blows as “morally equal participants”.

D.S. was found to intend to kick the victim (who by then wasunconscious) and attempted to participate in the assault as a principal actor. [41] In R. v. C.N. (ON CA), [2006] O.J. No. 3825 the Ontario Court of Appeal overturned a sentence oftwo years’ probation for a first time 17 year old offender who was convicted of aggravated assault as an active participant. He tore openthe victim’s shirt and repeatedly stabbed and slashed him with a box cutter.

The Court found the order of two years’ probationdemonstrably unfit and not proportionate to the seriousness of the offence and the offender’s degree of responsibility. The crimeinvolved a swarming of the victim by a group and C.N. and was described as particularly serious and violent with C.N. being theringleader. Nine month’s custody was awarded with six months’ probation to follow.

The decision provides a very useful review ofthose cases where the Ontario Court of Appeal determined that non-custodial orders were unfit. (See paragraph 30). [42] In N.B. a 14 year old first time offender who actively participated in a gang sexual assault on a 12 year old girl after aplea of guilt was sentenced to an order of six months open custody with three months’ community supervision with probation for 12months. N.B. came from a supportive home, was well-grounded, obedient and caring and had a favourable pre-sentence report.

TheCourt found that the gateway to custody was satisfied under both sections 39(1)(

a) and (

d) of the Act, did not find that a deferred custodyorder was appropriate and was satisfied that no other available sanctions would appropriately address the principles of sentencing in thematter. 8: ANALYSIS [43] What all of the above cases reflect is that sentencing of a young offender is not only individualized but as JusticeBloomenfeld noted in A.S. the Act establishes an elaborate and complex framework for assessing the personal circumstances of theoffender and the offence when determining the question of an appropriate sentence.

The above cases reflect that generally speaking,even where a party to an offence is involved, appeal courts have determined that non-custodial orders are generally unfit in crimes ofserious violence and grievous bodily harm.

[ 44 ] N.A. was 16 years old at the time of this offence. Three years later he is now 19 years of age and he has matured to some extent. Some of the mitigating factors for him are that he has completed high school, he has been gainfully employed and he has acquired a number of trade certificates. N.A’s long-term goal is to complete a Red Seal certification in all the trades. He has delayed his post-secondary education awaiting the results of his trial and sentencing. According to the assessment findings, he has the intelligence to do well at school and achieve that goal and he has the family support to do so.

His mother and father are concerned for him. He can benefit from counselling and he has the intellectual capacity to do so. He has not engaged in further criminal activity. He no longer associates with the young persons that he tended to follow. There is no substance or alcohol abuse. He says that he is willing to engage in counselling. He expresses remorse for not helping the victim and not stopping the assault. He expresses empathy for the parents and family of E.W. as they were forced to watch the recording of the assault during this trial.

He is considered a low risk to re-offend. [ 45 ] The defence’s position is that an order of custody will only serve to punish N.A.; it will not provide him with the treatment that he needs. Mr. Goulin states that N.A. is suffering from P.T.S.D. or post-traumatic stress disorder likely generated by the trauma he experienced at the time of the assault and the guilt he feels over his own conduct. He suggests that N.A. can be trusted to comply with a non-custodial order and he does not pose a risk of harm to anyone. To use Mr. Goulin’s words “he is going through his own hell”.

He submits that a custodial order will only generate negative results for N.A, it will not provide him with the treatment he needs and expose him to negative elements and other negative youth that he has tended in the past to follow.

Alternatively, defence suggests an order of deferred custody. [ 46 ] According to the Crown, N.A. is guilty as a party to a violent, brutal assault where the level of violence can only be characterized as exceptional, where N.A.’s encouragement was ongoing and where the Court found it was objectively foreseeable to N.A., time and again, that J.D. would continue to engage in reckless behaviour and was intent on delivering grievous bodily harm to E.W.

According to the Crown, N.A.’s conduct was not a transient or fleeting lapse of judgment but rather a sustained, prolonged engagement in a sequence of events that gave rise to the enormous danger and resulting irreparable harm suffered by E.W. The Crown argues that N.A. has little to no insight into his offending behaviour and the circumstances of his offence. The Crown argues that N.A. has not been formally diagnosed with post-traumatic stress disorder, rather his behaviour reflects his ongoing failure to seek treatment.

The Crown seeks a custodial disposition for N.A. in a secure setting with a term of probation to follow. [ 47 ] Some of the aggravating features of this offence are that the violence is nothing short of shocking as is N.A.’s conduct. The prolonged nature of the violence and assaults on E.W. is exceptional. N.A.’s participation as a party is unusual and troubling, to say the least. I have previously described his acts of involvement and participation in this assault in my Reasons for Judgment. I found he engaged in mocking, jeering and belittling behaviour towards the victim.

I agree his words of enthusiasm and encouragement to J.D. were robust and prolonged. N.A.’s moral culpability and intentional risk taking are significant; he fueled and ignited J.D.’s anger, he was actively intertwined with the parties in the assault and he actively encouraged J.D. in a final series of particularly vicious, blows and kicks to E.W.’s head which left E.W. convulsing and comatose. He left E.W. grievously wounded when he exited J.D.’s apartment. He went home and went to bed. He never called for assistance for E.W. He deleted the recording of the assault from his phone.

His acts, gestures, words and conduct accelerated throughout the afternoon of the assault. He showed no mercy for the victim. To use some of the language in the cases I have noted, his role was significant, his degree of participation high, he was an integral part of a vicious and unprovoked attack, with his words and gestures he acted in concert with others. At several parts on the tape N.A. is heard to encourage J.D. after a blow or series of blows or kicks, saying “I get a hit” or “he’s cryin’ man” or “woo” “you fucked up so much shit man”.

And then lastly telling J.D. as he takes a pause in his kicks and assaults on the victim and tells him “not to stop” and “to keep going”. [ 48 ] There is no question that in assessing the consequential harm to E.W. that N.A. actively and substantially contributed to E.W.’s vulnerability to the attacks by J.D. and the other participants to the assault. As I have indicated, he was not the ringleader and he did not use any direct violence; he threatened to do so, but did not do so.

As for the normative character of N.A.’s conduct, he violated the peace and safety of E.W.’s life, E.W. expected to be going to a pre-fireworks afternoon get-together. E.W. was entitled to think he was among friends; he craved their acceptance. In assessing N.A.’s degree of participation, it was high. In assessing the seriousness or objective gravity of this offence, is it very high. [ 49 ] Other aggravating factors are that N.A. shows little to no insight into his offending behaviour or the reasons behind it.

He has not engaged in counselling where he would be required to examine his behaviour and confront his own role in this assault. He has not taken prescribed medications to address the trauma he may have caused himself. When left to his own devices and voluntary decision making, he has not pursued or completed counselling and he struggles with accepting the Court’s findings. He requires long- term treatment for his resulting emotional problems. But, I do not find that he is suffering from post-traumatic stress disorder as the defence suggests. There is no specific evidence before me to support that conclusion.

He has anxiety, he suffers depression and he has many sleepless nights. However, he failed to describe the full extent of his involvement with the assessor when he was given the chance to do so or to fully recount his behaviour. He thinks that E.W. has forgiven him and has no hard feelings. He has a number of explanations for his in trial testimony and admissions. N.A. thinks that having separated himself from his negative peers that he has changed his behaviour and he is no longer a follower. Having been bullied as a child he explains his behaviour as trying to gain their acceptance.

His parents think likewise. [ 50 ] Alternatives to in-custody services include attendance at a local non-residential attendance center where a variety of programs are offered, including moral recognation therapy designed to foster moral development in youth, a youth violence program and art therapy. The local children’s hospital offers psychological and psychiatric services. The THC offers a range of counselling services for 12 to 24 years old. The JHS offers an anger management program.

CMHA offers services to the most seriously mentally ill with counselling for mild to moderate depression and/or anxiety with one-on-one counselling and treatment. [ 51 ] As for open custody facilities, the BCR is located in Windsor and offers supervision by a highly skilled team of youth workers offering a wide range of group and individual programming. Programming includes moral recognation, art and music therapy, life skills and a re-integration worker with emphasis on primary risk factors with referrals to support services upon release.

N.A. could be provided with recurring reintegration leaves to support his schooling and employment status. [ 52 ] As for secure custody, the GDC provides therapy based on building positive relationships. Services and experiences are offered to address each youth’s individual needs focusing on positive decision making and skill building. Youth are encouraged to

reconnect with their families and communities. The ultimate goal is to teach youth how to make healthy, responsible decisions in the future so they can permanently disengage from the justice system. SYC is another youth facility that offers youth access to a range of skilled trade occupations and certifications in a T.R.A.D.E.S. program. [ 53 ] All of these alternatives including the custodial facilities are clearly therapeutic based with an emphasis on rehabilitation and reintegration for the youth involved.

Each of them offers an increasingly higher degree of management and supervision of the youth’s specific needs with an emphasis on discharge planning and support for the youth. Contrary to defence counsel’s submissions they are all designed to offer treatment and therapy to youth and their focus is not on punishment, but rather the Youth Criminal Justice Act’s objective of rehabilitation and successful reintegration for youth. [ 54 ] There is no question that N.A. contributed to the aggravated assault on E.W. as a party to this offence. He committed a violent offence under s. 39(1)(

a) and similar to D.S . I do not find that what he did was “markedly different” from J.D. or J.R. I agree that he was not the principal actor, as that role is awarded to J.D. but his degree of participation includes that he was an integral part of a vicious, unprovoked assault where he was closely intertwined with the other youth, his presence fueled the other offenders and he is a morally equal participant. He acted in concert with the others. This may also be an “exceptional” case as that term is defined under s. 39(1)(

d) but that finding is usually reserved to those special non-violent cases as Justice Rosenberg found in R.E.W. [ 55 ] As for parity issues, I awarded J.D. a term of custody in a secure facility for a period of 270 days with 180 of those days in custody and 90 days of community service followed by a lengthy period of probation. He also spent 455 days in custody prior to my sentence. That means he was given the maximum sentence allowed under the Act for the offence he pleaded to. His participation and the seriousness of his actions were different than either J.R. or N.A.

He required extensive time for rehabilitation and reintegration. His behaviour and level of participation deserved the utmost of condemnation and censure. I was not satisfied that the goals of youth sentencing could be addressed without a custodial order for him. [ 56 ] Another participant to the assault was J.R. She was exposed to bullying and abuse in her formative years; she required a structured supportive network of resources that a non-custodial option had not previously achieved.

The C.A.S. residential facility in which she was placed was not able to offer the rehabilitation and reintegration that she required. She attended art therapy and she accepted responsibility for her behaviour, her therapist opined that she was able to see that her aggression was the result of her social network, her environment and her family upbringing. J.R. was an active participant in the assault but her physical contributions were less egregious than J.D.’s. Despite her participation and attacks on E.W. the recording reveals that she took some measured steps to stop the violence.

She offered some limited assistance to E.W. She told J.D. to stop and told N.A. “not to say anything”, that N.A. was the one “egging on” J.D., that “you told him to keep going, don’t even say shit”. J.D. and J.R. each offered a guilty plea to a lesser offence, namely assault causing bodily harm. J.R. received six months of secure custody, four months in custody with two months of community supervision followed by a term of probation. She also spent 74 days (enhanced) in pre-sentence custody.

The third participant, S.B. was sentenced before the full extent of her degree of responsibility and participation was available. 9: CONCLUSIONS [ 57 ] During submissions there was no mention that N.A.’s release terms were onerous. To my knowledge, he spent no time in pre-sentence custody. His life has travelled the path of maturity, completing high school and earning trade credits. His steps at acknowledging the harm he has caused and his efforts at rehabilitation are insignificant and sparse.

He refuses to fully acknowledge his role as a party to this offence and he offers platitudes and excuses for his behaviour. He requires long-term treatment of at least six to nine months. [ 58 ] In the cases that I reviewed above, two such cases involve a party to a serious and violent offence. In R.T. the victim’s thumb was amputated, surgically reattached and the tip was permanently severed when it failed to reattach. The victim and his family were terrorized and traumatized. A gun and a knife were involved.

The defendant used no direct violence but substantially contributed to the reign of terror that ensued with a home invasion style of robbery. The level of harm was described as tremendous with physical and psychological harm.

The Ontario Court of Appeal awarded a combination of secure and open custody with probation to a 17 year old first time offender, where a period of two years had transpired since the offence, where the offender in the interim was working, where he exhibited no further criminal activity and his family was supportive and loving. [ 59 ] In D.S. the Ontario Court of Appeal confirmed a sentence of 16 months and 3 weeks (less pre-sentence custody served) where the young offender did not participate physically in the assault, but wanted to, where the victim’s blood was on his shoe, where he was part of an integral attack on a defenceless victim, where the victim sustained a brain injury and where his presence fueled the other participants to the assault. [ 60 ] This is not a case for deferred custody.

N.A. participated in an offence as a party where he caused serious bodily harm to E.W. Moreover, such a sentence is not consistent with the purpose and principles of sentencing in s. 38 and 39 of the Act . Deferred custody would not be sufficient to promote a sense of responsibility in N.A. nor an acknowledgment of the harm he has done to the victims and the community. N.A.’s conduct says something deeply disturbing about his character that three years following the events, his many issues are still unresolved. [ 61 ] This is not a case for a non-custodial disposition such as a term of probation.

Court of Appeal decisions have called such dispositions unfit in circumstances and offences such as this. The circumstances of this offence are horrifying, the objective gravity of the offence is very high, N.A.’s role in this case was substantial, N.A. was involved in J.D.’s activities from the earliest time. The harm done to E.W. and his family is incalculable and the offender has done little to nothing in the way of reparation. This is not a case to give way to considerations relating to N.A. and his best interests.

This is a clear case for custody as no other disposition would be proportional to the seriousness of the offence and the degree of responsibility of N.A. for this offence. A custodial disposition is the only sentence that would promote a sense of responsibility in N.A. and an acknowledgement of the harm he has done. These are the words of Justice Rosenberg in R.E.W. and I adopt them for this ruling. [ 62 ] I hereby sentence N.A. to a period of 180 days of custody, 120 days to be spent in open custody with 60 days

community supervision to be followed by 6 months’ probation. N.A. has good prospects for rehabilitation, a supportive family, his risk of reoffending is low and the level of supervision he requires is low. His placement in an open custody setting will ensure his rehabilitation and reintegration and the treatment and therapy he requires. I believe the only way that N.A. will benefit from the moral training that he requires is through a term of custody.

A custodial disposition will instill meaningful consequences for N.A. through a just sanction proportionate to this offence and his degree of responsibility. [ 63 ] As for his terms of probation, the following terms shall apply: 1. Report in person to a youth worker immediately after release and after that, at all times and places as directed by the youth worker or anyone designated by your youth worker to assist in your supervision; 2. To attend and actively participate in assessment, counselling or treatment as directed by your youth worker.

You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed. You are to sign all releases of information required; 3. Not to contact or communicate in any way, directly or indirectly by any physical, electronic or other means with E.W.; 4. Not to contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with J.D., J.R., S.B. or Jordan Murray; 5.

Not to associate with any person known to you to have a youth court record, or any persons with a record under the Criminal Code of Canada or the Controlled Drugs & Substance Act . 6. No weapons. [ 64 ] There shall be a firearms prohibition for a period of two years, pursuant to s. 51(3) of the Y.C.J.A. [ 65 ] A DNA order shall issue, pursuant to s. 487.051(1). [ 66 ] A copy of N.A.’s s. 34 assessment shall be released to Probation/Youth services for any educational purposes and to assist in their case management process. [ 67 ] Two final comments. [ 68 ] First, I would like to acknowledge and thank Mr.

William Rolls of the Chief Justice’s Research department for his assistance in completing these Reasons. [ 69 ] Second, my involvement in this case and with N.A. and the other participants has been extensive and prolonged. I have often wondered what would drive young persons to the level of violence and indifference that I was able to observe when the recording captured the events of June 23, 2014. For E.W. his life is forevermore changed and challenging.

The same can be said for all of the participants to his assault. [ 70 ] In William Golding’s novel, the Lord of the Flies, a group of shipwrecked children land on a deserted island where eventually all civilization disintegrates under the pressure of raw nature. One of the children is killed when he is mistaken for a beast and another is killed when a rival group run by Jack throws a boulder on a child called Piggy. At the novel’s end one of the main characters, Ralph, is rescued together with the surviving boys and he sobs and raises his voice to the scorched up island; the other little boys shake and sob too.

One of the last lines is particularly appropriate: “And in the middle of them, with filthy body, matted hair and unwiped nose, Ralph wept for the end of innocence, the darkness of man’s heart and the fall through the air of the true, wise friend called Piggy”. [ 71 ] We should all weep for that same lost innocence in these circumstances, pray for E.W.’s recovery, and strive for justice which should be merciful and not strain’d. Released: June 2, 2017 Original signed and released Sharman S. Bondy Justice