R. v. B.(R.), 2011 ONCJ 118

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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. COURT FILE No. Toronto Citation: R. v. B.(R.) , 2011 ONCJ 118 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. B. Jones ) for the Crown ) — AND — ) R.B., G.J.C. (Young Persons) ) ) ) Mr. A. Sobcuff, Mr. T. Smith ) for the Defendants ) ) Heard: October 7, 2010, January 21, 2011 ) NAKATSURU J.: [ 1 ] The accused young persons, Mr. R.B. and Mr. G.C., pleaded guilty to one count of public mischief. These are my reasons for sentence.

A. OVERVIEW AND

SUMMARY OF THE EVIDENCE I. The Offence [ 2 ] Between January 19 and January 20, 2009, Mr. B. and Mr. C., two fifteen year old boys, worked together to clone a website on the social networking website YouTube. The two offenders created an e-mail account to personate a person known on YouTube as Jerusha11. Posing as Jerusha11, the two offenders posted a document that threatened the life of President Obama and his daughter. The contents of the documents were written to provoke anger against African-Americans.

The American authorities and the Canadian police commenced and continued an investigation into this false posting and threat. [ 3 ] On February 10, 2009, the RCMP National Security Enforcement Team learned of a United States Secret Service investigation relating to a threat to cause death to President Barack Obama. The threat was posted on the social networking site YouTube under the user name JerushaTheHedgeHog.69.

President Obama was scheduled to visit Canada on February 19, 2009. [ 4 ] The United States Secret Service advised the RCMP that they learned that the two Internet Protocol (IP) addresses from which the threatening posting came was located in the Greater Toronto area. The RCMP investigated these addresses and found them to be linked to Mr. B. and Mr. C. [ 5 ] The RCMP Open Source Criminal Intelligence

Section located the website, JerushaTheHedgeHog.69. The RCMP was of the view that this website was a clone or a fake account of Jerusha11. The website had altered images of the person identified to be Jerusha11. [ 6 ] The website post claimed its owner, Jerusha11, was a member of a “sonic cult” who engaged in hardcore sexual practices. The posting indicated a love for the Ku Klux Klan, Satanism and hatred towards African-Americans. [ 7 ] It does not serve any useful purpose to set out in full the threat posted on the website.

It suffices to say it uses extreme profanity, racial epithets and derogatory terms directed against African-Americans, hatred, violent sexual imagery, and threats to kill President Obama and his daughter. The three paragraphs written by Mr. B. and Mr. C. are disgusting and repulsive. [ 8 ] On February 18, 2009, two Toronto police officers attended the residence of Mr. C. Initially, the police interviewed his mother and father. Then the police interviewed Mr. C. in the presence of his parents. Mr. C. admitted that he was aware of the posted threats on YouTube. Mr. C. stated that it was Mr.

B. who was responsible for posting the threat on YouTube. Mr. C. stated he was the one who opened the account on YouTube for Mr. B. [ 9 ] At this point in time, Mr. C. was provided his Youth Criminal Justice Act and his Charter rights and was permitted to speak to a lawyer in private. After receiving legal advice, he refused to continue with the interview. [ 10 ] That same day, the police attended the residence of Mr. B. The officers spoke to the offender’s father and informed him of the incident. Mr.

B. was not at home that day. [ 11 ] On April 30, 2009, the police obtained two search warrants for the residences of Mr. B. and Mr. C. At approximately 6:10 p.m., the police attended Mr. C.’s home and seized a laptop computer. Other computers were observed but not seized. The entire family was present at the time of the search. [ 12 ] The same day, at approximately 6:56 p.m., the police executed the search warrant at Mr. B.’s residence. A desktop computer was seized. Mr. B. and his mother were present at the time. [ 13 ] On June 24, 2009, the police interviewed Mr. B. at Toronto Police Services, 43 Division.

Both his parents were present and the interview was videotaped. Mr. B. was given his rights before the interview. [ 14 ] In the interview, the police learned that in January of 2009 both Mr. B. and Mr. C. were trolling the YouTube website. They became embroiled in an online dispute with two other Internet users who utilized the monikers “Dogglessbounty” and “Jerusha11”. As a result of their disagreement, both offenders collaborated to clone Jerusha11’s social networking site on YouTube. Mr. C. created the e-mail account. Mr. B. and Mr. C. used the new e-mail account to create an identical YouTube account.

The new YouTube account was named JerushaTheHedgeHog.69. Together both offenders utilized photographs and information from Dogglessbounty and Jerusha11’s legitimate YouTube websites. The pooled information was used to create their fake website of JerushaTheHedgeHog.69. It was on this website that they posted the threat to President Obama. [ 15 ] Mr. B. stated that they utilized the name of President Barack Obama to attract a large number of visitors to their fake website.

Their intention was to cause other Internet users to believe that the information posted on the fake site was representative of the beliefs of the user of the real Jerusha11 website. [ 16 ] At this interview, Mr. B. provided to the police a letter of apology to President Obama. [ 17 ] On June 29, 2009, the police interviewed Mr. C. at Toronto Police Services, 41 Division. His father was present during the videotaped interview. Mr. C. was given all of his rights prior to the interview. [ 18 ] Mr. C. admitted to participating in the planning and execution of the cloning of Jerusha11’s YouTube website.

He stated that the laptop computer was owned and used solely by him. He admitted that he created the e-mail address to gain access to YouTube. Mr. C. altered Mr. B.’s original threatening document by adding more derogatory comments about President Obama. He uploaded the final version to YouTube for anyone to see.

[ 19 ] At this interview, Mr. C. also provided a letter of apology to President Obama for his actions. [ 20 ] The offenders’ computers were transferred to the RCMP’s Integrated Technical Crime Unit based in London, Ontario, to be examined. The Unit examined Mr. B.’s computer and noted hundreds of search hits for JerushaTheHedgeHog and variants. They noted original and edited versions of pictures of a person identified as Jerusha11, references to the KKK, Satanism, and text fragments of the comments ultimately posted on line. Text fragments of the IP address of Mr.

C.’s machine were also located. [ 21 ] The Unit examined Mr. C.’s computer as well and noted that the computer had searched for on line photos of Jerusha and sites linked to Jerusha and JerushaTheHedgeHog.69. References to Satanism and text fragments of the posted threat to President Obama were located. In addition, the web history of his computer was deleted on February 18, 2009, just hours after the police had initially interviewed Mr. C. [ 22 ] Both Mr. C. and Mr. B. posted the derogatory and racist remarks directed against President Obama on the fake account, JerushaTheHedgeHog.69.

Threats were made towards President Obama and his daughter who was identified in the posting but not named. The United States Secret Service perceived the remarks as a legitimate threat to the safety of President Obama. II. Background of the Offenders [ 23 ] Pre-sentence reports were prepared for both Mr. C. and Mr. B. In addition, both defence counsel submitted other materials attesting to the character and background of their young clients. All were extremely positive and impressive. [ 24 ] Mr. C. is the older of two boys born to his parents.

He shares a bedroom with his younger brother in the family’s two bedroom apartment in Scarborough. His father is a systems manager in a nearby business while his mother is a stay at home parent. They both share a close bond to Mr. C. although Mr. C. confided more to his mother. Since the time of the offence, Mr. C. has become more open with both of them. Both parents were concerned and supportive but did not offer any excuses for their son’s poor judgment and have held him accountable for his actions. The disturbing message posted on YouTube was not indicative of Mr. C.’s true principles or values. [ 25 ] Mr.

C. was cooperative with the probation officer who prepared the report and gave thoughtful answers. He appeared to understand how irresponsible his behaviour was; behaviour that resulted in many hours of investigation and litigation. He apologized copiously for his conduct and stated that he had in fact supported President Obama in his election. [ 26 ] His parents described their son as seeming more mature than his years and serious. Mr. C. always helped out at home, with neighbours, and at school. A neighbour who was a senior gentleman described him as intelligent, respectful, and caring. Mr.

C. would help the neighbour with cleaning, lifting, and other chores. He also regularly visited his late wife when she was terminally ill. Although reserved, it is clear Mr. C. has been a comfort and a joy to this man and others in the neighbourhood. [ 27 ] Mr. C. prior to the offence was not outgoing and did not involve himself with any organized activity outside the home. He developed a strong friendship with Mr. B. and the two became inseparable. Since his arrest, he has realized that this situation may have contributed to his offence.

He has become more involved with extracurricular activities such as environmental groups and with making new friendships. [ 28 ] Mr. C. had previously used the computer at home for social networking but now has become aware of the dangers associated with the irresponsible use of the World Wide Web. His current use is mainly for his heavy school activities. [ 29 ] Mr. C. is completing his final year of high school. His grades are well above the class median. He is maintaining high marks including some above 90%. Several reference letters from his teachers comment upon Mr.

C.’s respectful attitude and his preference for the company of adults and teachers. While he did not appear to have close friends, he got along with his classmates and was well accepted. Mr. C. was able to achieve this academic success despite the fact that at the age of 13 he needed a psycho- educational assessment in order to examine his difficulties with written expression, math concepts and interaction with peers. This testing indicated that he had a number of strengths but required work and improvement in certain areas.

By his senior grades he had progressed very well in overcoming many of his learning challenges. [ 30 ] A number of letters of support were filed from teachers past and present, his current vice-principal, and his principal. One teacher wrote that Mr. C. was a bright, articulate, and conscientious student who was respected by faculty and his peers alike. Another wrote of his reliability, his sense of humour, and respect. Another teacher cited his punctuality, hard work, and trustworthiness.

He was also described to be patient with students with special needs and would encourage them to participate and be a part of his group. Yet another wrote of his upstanding moral character. His principal wrote about her discussions with Mr. C. She described him as always respectful. He has never been in serious trouble at the school. He has always wanted to help out and seemed to enjoy pleasing others. In grade 8 he received the Principal’s Award for his contributions around the school over the years. The vice-principal, who also knew Mr.

C. well, spoke of his politeness and decency and opined that he has a bright future ahead of him. [ 31 ] Mr. C. is planning on applying to the University of Toronto with the hopes of pursuing a degree in history with a focus on European history while incorporating Political Science as a part of his tertiary studies. He has already surpassed the grade threshold for admissions and his parents are willing to support him in this post-secondary education. [ 32 ] Mr. B. is an only child. His parents are gainfully employed in low level retail and white collar positions.

They live in a tidy condominium and enjoy a large extended family network. Mr. B. enjoys a close bond with his father. His mother reports that he is a happy but quiet son who is open with her about his personal issues. Both his parents are shocked, ashamed, and angry by their son’s situation. They are very concerned about Mr. B.’s welfare and future. The family has undergone considerable emotional trauma since the police investigation and litigation. All assured that Mr. B. did not subscribe to any of the troubling ideologies on display in the

YouTube posting. Previously, Mr. B. enjoyed using the computer spending a number of hours a day on the computer playing computergames. [33] Mr. B. has done well in school. He has participated in extracurricular activities such as track and field and has garneredawards. In high school, his grades are well above the class medium including marks of 90% and greater. The comments made by histeacher showed that he had a thorough understanding of the materials taught. [34] Mr. B. plans to attend the Schulich School of Business within York University after he graduates from high school thisJune.

This is one of the leading business schools in the country. He has set himself a lofty goal and he is supported in this by hisparents. Mr. B. believes he can meet Schulich’s strict admissions criteria but he is also realistic in applying to the commerce program atthe University of Toronto. [35] A number of letters were filed in support. Mr. B. has volunteered for the Salvation Army during the past two years. He isdescribed as a hard worker, eager to please and willing to do any duty. [36] Mr. B. and Mr. C. have had a close friendship. Neither has engaged in underage drinking or illicit drug use. [37] Mr.

C. was released on a bail that he was to have minimal contact with his co-accused and he has been fully compliantwith his release. Mr. B. is bound by an undertaking that requires him to stay away from Mr. C. except for school and to abstain fromusing any computer networking system other than for school purposes except in the immediate company and supervision of a parent. There have been no issues with respect to compliance. [38] Both Mr. B. and Mr. C. have written letters of apology to President Obama and to others for their actions. They areinsightful and well written. I find them to be sincere. B.

THE ISSUES AND THE POSITION OF THE PARTIES [39] The Crown submits that the appropriate sentence for both young persons is a deferred custody and supervision order of atleast 3 months pursuant to section 42(2)(

p) of the Youth Criminal Justice Act. This order should be followed by a probation order of 18months. Finally, the Crown seeks a weapons prohibition for a period of 2 years pursuant to section 51(3) of the Youth Criminal JusticeAct. [40] To begin with, the Crown argues that the gateway to custody is open for Mr. B. and Mr. C. under s. 39(1)(d). This is oneof those rare, non-violent cases where applying the general rule against custodial disposition would undermine the purposes of the YouthCriminal Justice Act.

Under this analysis, the background of the offenders is not relevant and should not be considered. [41] The Crown submits that the background of the offenders becomes relevant when it comes to the determination of theform of that custody. In this case, the Crown agrees that given the mitigating circumstances as set out in the pre-sentence reports and thedefence materials, actual custody is not required.

Therefore, custody can be in the form of a deferred custody and supervision order. [42] In essence, the Crown submits that because of these aggravating circumstances, despite the positive background and theremorse of the offenders, nothing less than custody is a fit sentence. Anything short of custody would be contrary to the public interest. [43] The defence submits that both offenders should receive a conditional discharge. They disagree with the Crown’scharacterization of the offence.

According to the defence, these were the foolish and impulsive actions of young teenage boys who didnot understand at the time the seriousness of their behaviour. No threat was ever intended. The two boys do not ascribe in any fashion tothe values of hate and intolerance that the posting expressed. [44] Since then, they and their families have suffered shame and emotional trauma. They have lived under this for a lengthyperiod of time. They have now developed an appreciation into their conduct and have set their sights on more responsible and laudablegoals.

They have achieved academically and are well on their way to university. This offence was an isolated lapse of judgment inotherwise unblemished pasts. It is argued that a conditional discharge would be the just sentence in recognition of these factors. C. ISSUE #1: IS CUSTODY AVAILABLE PURSUANT TO S. 39(1)(d)? [45] Section 39(1)(

d) of the Youth Criminal Justice Act states: 39.

(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless (

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. [46] The Crown submits that under s. 39(1)(

d) the personal circumstances of the offender cannot be considered, only thecircumstances of the offence. The Crown relies upon the case of R. v. R.E.W., (ON CA), [2006] O.J. No. 265 (C.A.).In my opinion, this absolute position is not quite correct. [47] While s. 39(1)(

d) focuses on the aggravating circumstances of the offence, it directs a judge to have regard for thepurposes and principles of sentencing under s. 38; for instance, the consideration of "any other aggravating and mitigating circumstancesrelated to the young person or the offence that are relevant to the purpose and principles set out in this section." In other words, the

offender’s history and background remains meaningful in the analysis of whether custody should be imposed under s. 39(1)(d). [48] This is how the British Columbia Court of Appeal in R. v. S.T., 2009 BCCA 274 , [2009] B.C.J. No. 1206explained the Ontario Court of Appeal’s decision of R.E.W at paragraphs 45 to 46: 45 In my opinion, the Ontario Court of Appeal did not say, as the Crown suggests, that the circumstances of the offender are to becompletely ignored in sentencing under s. 39(1)(d). Rather, the Court in R.E.W. endorsed the conclusions of Taylor J. in R. v. J.E.C. inwhich he cited the remarks of Professor Bala in which the learned author noted: Section 39(1)(

d) gives a youth justice court judge a narrow discretion to impose a custodial sentence even if none of the conditions ofsection 39(1)(a)-(

c) are satisfied, but it is clearly intended to be exercised only in "exceptional circumstances." This provision gives ajudge the power to impose a custodial sentence for a non-violent offence - even if there is not a prior history of offending or a failure tocomply with non-custodial sentences - but only if there are "aggravating circumstances" such that the imposition of a non-custodialsentence would be inconsistent with the principles articulated in

section 38, which adopts the principles of

section 3 of the YCJA. Thisnarrow provision might, for example, be invoked if a seventeen-year-old youth commits a hate crime such as the burning of a cross onthe lawn of a black family,

an act which is an assault on fundamental societal values and which would cause widespread psychologicalharm among many Canadians, as well as fear in the immediate victims. Even with this type of hate-related property crime, the age,maturity, and motive of the youth would be relevant to sentencing, and consideration would have to be taken of the effect of a custodialsentence on the rehabilitation of the young person. The same hateful act committed by a misguided twelve-year-old might not merit acustodial sentence.

Taylor J. then concluded: [63] I do not take Professor Bala's comments to suggest previous history is irrelevant. Rather, it is the circumstances of the offence itselfwhich make that previous history unnecessary when considering sentencing under section 39(1)(d). [64] In such a case the history of the offender becomes irrelevant as the focus is not upon the offender's history. Subsection (

d) seeks tointroduce a sense of proportionality in exceptional cases where the circumstances of the offence are so aggravating that they outweighwhat otherwise would be relevant considerations, such as the offender's background or other forms of disposition. 46 While I agree with the basic premise of those remarks, I would frame the analysis differently.

As I read s. 39(1)(d), in "exceptionalcases" the aggravating circumstances of the offence render a non-custodial sentence inconsistent with the purpose and principles of s. 38because factors such as proportionality, responsibility and rehabilitation demand a custodial sentence. That determination willnecessarily involve an assessment of the young person's circumstances and background.

However, in the final analysis under s. 39(1)(d)the aggravating circumstances ultimately outweigh those "other relevant considerations" and, in that sense, render them irrelevant in theresulting imposition of a custodial sentence. [49] I agree with this explanation of R.E.W. In my view, Justice Rosenberg in R.E.W. was not directing a sentencing judge toignore the personal background of the offender. For example Justice Rosenberg posits one articulation of an “exceptional case” to bewhere the circumstances of the offence are shocking to the community.

In making that determination, as Professor Bala hypothesizes,the personal characteristics of the offender may be relevant. The offence may shock the community for a more mature young person butnot for a younger one. An offence committed by a naive and mentally challenged youth may not be considered as aggravating as onecommitted in a cold and calculated manner by a narcissistic offender.

In other cases, the circumstances of the offence may be sohorrifying, as in R.E.W., little or no reflection of an offender’s personal circumstances is necessary before concluding that the youngperson should be sentenced to custody. [50] In my opinion, proportionality is the ultimate consideration.

In order for an offence to warrant custody under s. 39(1)(d),the circumstances of the offence must be so aggravating that when one does a contextual analysis, one that includes in the appropriatecase, the background of the offender, nothing less than custody would satisfy the purposes and principles underlying the Youth CriminalJustice Act. Such an

interpretation is consistent with the Supreme Court of Canada’s comments in R. v. C.D., 2005 SCC 78 ,[2005] 3 S.C.R. 668 that one key objective of the Youth Criminal Justice Act is to restrict the use of custody for young persons. [51] I will now address the application of s. 39(1)(

d) to the case of Mr. B. and Mr. C. Cases that require custody under s.39(1)(

d) will be rare and custody will be imposed only in the clearest of cases. The aggravating circumstances must be such that nothingless than custody would properly reflect societal norms and values. [52] The starting point must be the offence itself. The two young persons are guilty of public mischief. The Crown elected togo by indictment. Under s. 140(2) of the Criminal Code, the maximum punishment for this offence is five years. As such, this offenceis not at the more serious end of the continuum of criminal offences.

While it is serious to mislead the police and cause them to enter intoor continue an investigation with the attendant misdirection of valuable police resources, this is not an offence which directly endangerspublic safety or personal property. [53] Secondly, the language and imagery used was vile, sexually violent, racist and repulsive. This is aggravating. At thesame time, I find that the two young persons do not share the values and the hatred of the words used. The defence vehemently objectedto any such suggestion. The Crown does not contend otherwise.

Given the extensive material before me, I have readily come to thisconclusion. This finding is significant. The authorities relied upon by the Crown deal with individuals who have hate in their hearts andproject them to the world to cause hurt, fear, and mischief. Mr. B. and Mr. C. are not such individuals. I fully accept the Crownsubmission that hate offences are grave assaults on the fundamental values of equality, respect, and tolerance that bind the legal andmoral fabric of our nation. Fortunately, I am not dealing with such circumstances.

Had it been otherwise, I agree that custody would havebeen the appropriate response. [54] Thirdly, the subject of the apparent threats must be considered. They were made against the President and his youngdaughter. This must be condemned. However, while there is an apparent threat to the President of the United States and his youngdaughter, Mr. B. and Mr. C. did not intend it as a real threat. Again this context is significant. A true threat made against the President is

an attempt to undermine the democratic institution of our southern neighbour. In such a case, the community may well be shocked thatcustody is not imposed. In this case, not only was a real threat not intended, the actual wording found in the website contain suchhyperbole and absurdity that anyone reading it would suspect the true intentions of the person posting it. For instance in addition to thethreat, other scurrilous and scatological comments were made. Moreover, these comments were posted on YouTube.

They were notmade secretly or directed to state authorities or media outlets which would have been much more sinister. There are aspects to theposting that on their face make them appear to be the product of reckless and ignorant adolescent minds; in this case that is what theyactually were. [55] The motives of Mr. B. and Mr. C. should also be assessed. The two became involved in an online dispute of anunspecified nature with a person known on YouTube as Jerusha11.

As a result of this dispute, they posed as Jerusha11 and created awebsite and posted these comments in order to attract negative attention to Jerusha11. On the plea, the defence submitted and it wasaccepted that Mr. B. and Mr. C. did not intentionally plan to have the police commence an investigation against Jerusha11. Rather, theywere aware of this risk but were wilfully blind to that consequence.

I appreciate that wilful blindness does not mitigate legal culpabilitybut this is a circumstance that must be considered when it comes to sentence. [56] In addition, I was initially struck by the planning and skill required to create such a cloned website. However, uponhearing from the parties and after further reflection, I find that what Mr. B. and Mr. C. managed to pull off was not particularlyingenious or adept. This was not cyber-sleuthing or hacking of the highest order.

It did require thought and planning, but in its inceptionand execution, it was not much different than writing the proverbial false note to be circulated around the school yard but in the digitalworld. [57] Finally, given the gravamen of the offence of public mischief, the nature and extent of the misdirected policeinvestigation must be considered. The comments were posted on January 19/20, 2009. This posting came to the attention of the RCMP National Security Enforcement Team on February 10th, just prior to President Obama’s visit to Canada on February 19, 2009.

Thesecomments were posted quite some time before the President’s visit and not right before. In other words, the two offenders did not makethese comments specifically to interfere with the visit to Canada. [58] Nevertheless, before the visit, on February 18, 2009, the Toronto police visited Mr. C.’s home with his parents present. At that time, Mr. C. admitted to the post on YouTube and he implicated Mr. B. as the person responsible for posting it. The police alsoattended Mr B.’s residence that same day and spoke to his parents but Mr. B. was not at home.

Nothing further was done, according to the admitted facts, until April 30th, 2009, over two months later when search warrants were obtained to seize the computers from the twooffenders’ homes. This was some time after the President’s visit. From this chronology, I can infer that once the two young personswere visited, little was done in terms of the investigation of this apparent threat. [59] Furthermore, even after the seizure of the computers, the police interview of Mr. B. and Mr. C. occurred in June of 2009. Again, this was some two months from the time of the seizure of the computers.

At that time, in the presence of the parents, bothoffenders cooperated with the police and gave a full account of what they did. Both young persons provided letters of apology to thePresident. [60] I conclude from this chronology that by February 18, 2009, the police were no longer misdirected in their investigationinto the threat made allegedly by Jerusha11 against the President. By then, they had focussed their investigation into the actions of Mr.B. and Mr. C.

In short, the individual who used the moniker Jerusha11 was not being investigated for this threat; rather the realoriginators of the posting were being investigated. Indeed, it would appear that even before February 18, 2009, the American SecretService were aware that the posting came from the two Internet Protocol addresses belonging to Mr. B. and Mr. C. who lived in theGreater Toronto Area. From this standpoint, the police were not mislead into an investigation against Jerusha11 for any significantperiod of time. Their sights soon focused on the real culprits.

In my opinion, by the time the police attended the homes of these two teenagers on February 18th, they would have known that Mr. B. and Mr. C. did not pose any real threat to President Obama. Theiractions subsequent to that confirm this. [61] Taking all of the alleged aggravating circumstances into account, I agree with counsel for Mr. B. that even without regardto Mr. B. or Mr. C.’s exemplary backgrounds, this offence does not fall within the ambit of s. 39(1)(d).

In other words, focusing solelyon the circumstances of the offence, the aggravating circumstances are not such that the imposition of a non-custodial sentence would beinconsistent with the principles articulated in s. 38. When analysed carefully, the aggravating circumstances are significantly tempered.In conclusion then, this case does not fall within the rare and clearest of cases that require custody under the Youth Criminal Justice Act. D.

ISSUE #3: THE SENTENCE [62] While I have ruled out custody, greater difficulty is posed when dealing with the defence submission that a conditionaldischarge should be the fit sentence. Mr. B. and Mr. C. must be held accountable for their actions. I have regard for the comments madein R v. O.(A); R. v. M.(J) (2006), 2007 ONCA 144 , 84 O.R. (3d) 561 (C.A.) at paragraphs 47-48 with respect to theconsideration of the normative character of the offender’s behaviour and societal values. [63] In this case, a conditional discharge would be in Mr. B. and Mr. C.’s best interest.

Whether it would be contrary to thepublic interest is a more troublesome question. See R. v. Sanchez-Pino (1973), (ON CA), 11 C.C.C. (2d) 53 at p. 59(Ont. C.A.) This question has to be assessed with the principles and purposes underlying youth sentences under the Youth CriminalJustice Act. It has to be resolved having regard to the normative character of their actions. [64] In addressing this question, to begin with, there is no meaningful way to distinguish Mr. B. and Mr. C. Their participationin the offence and their backgrounds are essentially the same.

[ 65 ] I have already set out my analysis of the offence. Undoubtedly the two offenders intentionally created this website to cause trouble for the individual known to them as Jerusha11. However, while they adverted to the risk of state investigation, they did not engage in this behaviour with this specific purpose in mind.

I am confident that it came as quite a surprise to them and their families that the United State Secret Services and the RCMP became involved and the Toronto Police came knocking at their home. [ 66 ] With respect to the harm caused by their actions, no facts were provided as to whether the individual using the moniker Jerusha11 was ever contacted or subject to any scrutiny. No facts were provided as to whether President Obama was even made aware of this threat or whether any unusual steps were taken with respect to his security in response to this Internet posting.

The facts deal with the police investigation of the offenders. The harm caused by their behaviour was with respect to the requirement of the police to investigate a perceived threat. That harm essentially ended on February 18 th . [ 67 ] What is at the heart of my quandary is the fact that what Mr. B. and Mr. C. wrote, even if it does not warrant custody, it nevertheless requires stern repudiation. To read the posting inflames passionate and righteous indignation within any right thinking man or woman. [ 68 ] Mr. B. and Mr. C. did not seem to understand the hurt that can be caused through the power of words.

They did not seem to appreciate the historical injustice suffered by the African-American people and the challenges faced even today by members of visible minorities. They did not seem to realize how degrading and violent the words are to women and children. These words were given potentially widespread distribution on the Internet.

The values threatened by such language if left unchecked are fundamental ones cherished throughout the world. [ 69 ] It is because of the incendiary nature of the language used that it was necessary for me to step back, reflect, and resolve the issue of sentence with the greatest of judicial detachment and objectivity. Having done so, I have come to the decision that both Mr. B. and Mr. C. have met the test for a conditional discharge. [ 70 ] Whether a conditional discharge is contrary to the public interest must take into account the length of the discharge and the nature of the conditions imposed.

In this case, the discharge will be for a lengthy period of time and the conditions will be onerous and carefully crafted. Thus the sentence will be a meaningful consequence and will hold both individuals accountable. [ 71 ] In addition, there are numerous and significant mitigating factors. They include the following. Mr. B. and Mr. C. have pleaded guilty. They have no prior youth record or any contact with the criminal law. They have shown remorse and insight into their actions. They have strong and stable family support. They both have done very well in school and are pursuing post-secondary education.

They do not share any of the values indicated by the posting they created. Numerous letters filed in support demonstrate how out of character this offence was and how different the two are from the language they used in the posting. They are caring, intelligent, and respectful individuals. They were not born with silver spoons in their mouths and have had to earn their success in school through hard work. They have brought shame to their families. There is every reason to believe they will never commit such

an act like this again or any other criminal offence. I find it incredible that such two young persons would even imagine let alone write and post such disgusting and putrid trash. In my opinion, they did so as a means of childish retribution based upon some vague and unarticulated rivalry with another Internet user with their brains missing in action. [ 72 ] Importantly, it must not be forgotten that Mr. B. and Mr. C. committed these offences when they were relatively young. They were both 15 at the time of the offence.

They wrote this at a time when the stupidity brought on by adolescence can prove most challenging. They were and continue to be smart and decent kids who were somewhat socially isolated. They came to depend upon each other. They spent probably too much time on their computers. Despite their intelligence, they acted without due appreciation of the consequences of what they did on the Internet. They are not alone in that failing in our society. [ 73 ] Since then, they have had significant consequences visited upon them. They have done what they can to show remorse. They have both done well while on release.

I believe that this experience has given them much to think about. [ 74 ] It is my ultimate conclusion that restorative principles are the ones which should predominate. I find that the best way to achieve those restorative objectives is through a conditional discharge. The public’s interest will be better served by fully rehabilitating these two young persons who have great future potential. It will be in the public’s interest to require them through the conditions of the discharge to restore the balance and harmony to the community that their actions have threatened to upset.

A discharge once completed successfully will mean that they will be unhindered for any significant period of time by the finding of guilt as they become by all indicators productive, responsible, and valued members of society. The public interest can only benefit from this. [ 75 ] Mr. B. and Mr. C. will be under the conditions for a discharge for two years. They will be under court supervision for a lengthy period of time. At their age, by the time they receive their discharge, they will be leaving their teen years.

They will be young adults and likely university students. [ 76 ] The Crown submitted that one of the conditions should be a no contact condition between Mr. B. and Mr. C. I have given this careful consideration and find that such a condition is not necessary. I have been persuaded that future contact between these two essentially decent and responsible young persons will not lead to further misconduct or criminal behaviour. The decision whether to associate with each other should be made by these two young persons and their families. [ 77 ] The conditions will be meaningful ones.

Some will be focussed on ensuring future responsible use of the Internet. The restrictions placed on the use of the Internet may feel punitive to the young persons, but they are appropriate given the context of their criminal behaviour. The counselling will include counselling recommended by the pre-sentence reports and will centre on increasing their sensitivity to the impact of the discriminatory comments they posted.

Finally, there will be additional community service hours to require the offenders through their volunteer labour to give back to the community. [ 78 ] The conditions of the two year conditional discharge are the following: • Keep the peace and be of good behaviour

• Appear before the Youth Justice Court when required by the court to do so • Report to your youth worker forthwith and thereafter as required • Make reasonable efforts to seek and maintain employment and/or attend school • Take any counselling or programming recommended by your youth worker including with the Harriett Tubman Community Organization under the guidance of Charles Senior or his designate • Sign any consents or releases requested by your youth worker to allow monitoring of compliance with this order • Not to possess any weapon defined by the Criminal Code • Not to access the Internet unless for educational purposes or with the approval of your youth worker • Not to access or visit youtube.com for the entire period of your probation • For a period of six months from the commencement of this order, not to access facebook.com, or other social networking sites and to shut down any social networking account you possess within 48 hours of this order • Perform 100 hours of community service hours commencing within 30 days of this order at no less than 10 hours per month.

It is recommended that these hours be performed at an organization that serves the Afro-Canadian community. [ 79 ] There will also be a weapons prohibition pursuant to s. 51(3) for a period of two years. Released: February 22, 2011 Signed: