R. v. S.(A.) et al., 2013 ONCJ 683

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

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 Identity of offender not to be published.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

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 Identity of victim or witness not to be published.—

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

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

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

section 129 (no subsequent disclosure) . . . (

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

b) is guilty of an offence punishable on

summary conviction. Citation: R. v. S.(A.) et al., 2013 ONCJ 683 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; BETWEEN: HER MAJESTY THE QUEEN — AND — A.S.(1), A.S.(2), [1] P.R. and Z.N. (young persons) Before Justice M. H. Bloomenfeld Heard on May 16, June 10, June 11, June 12, July 2, July 3, July 4, July 8, July 11, September 5, October 30, 2013, November 27, 2013 Oral Reasons for Judgment, December 2, 2013 Written Reasons for Judgment Released, December 9, 2013

D. Kennedy .............................................................................................. counsel for the Crown P. Connolly .............................................................................. counsel for the accused A.S.(1) J. Guoba ………………………………………………………….…… counsel for accused A.S.(2) R. Feldstein……………………………………………………………….. counsel for accused P.R. C. Assie…………………………………………………………………….. counsel for accused Z.N.

Bloomenfeld J.: Overview [ 1 ] Four young persons A.S.(1), A.S.(2), P.R. and Z.N. pleaded guilty to an array of offences stemming from a brutal, inexplicable attack on A.K. and N.K. at a sweet sixteen party on July 29, 2012. [ 2 ] The victims, A.K. and N.K., had dropped by the party as part of an evening hanging out with friends. They did not know the birthday girl, T.N., but were acquainted with one of the other girls at the party. As they stood in the mall outside the banquet hall where the party was being held, A.K. and N.K. were attacked by the four young persons.

It was unclear what motivated the attack, but the victims did not know the young persons and had done nothing to provoke them. [ 3 ] Although all four young persons participated in the assaults, one of them, Z.N., wielded a machete and inflicted serious, potentially devastating injuries. Both victims incurred multiple gashes and other injuries but the worst wound was a gash to the back of A.K.’s neck that was so deep and gaping that his spine was visible.

N.K. suffered a wound to his left knee that required 13 staples to close as well as a machete cut to his left forearm administered with such force that it broke his arm. [ 4 ] The Crown served a notice of intention to seek an adult sentence for all four young persons. [2] The young persons elected to be tried by judge and jury and this matter commenced as a preliminary inquiry.

After the victims and several Crown witnesses, including the birthday girl, had testified, the young persons re-elected to be tried by this court and entered pleas of guilty to a selection of offences highlighting their individual roles in the attack. The matter was put over for several weeks for the preparation of pre-sentence reports and s. 34 assessments and in order to enable all counsel to compile materials for use at the sentencing hearing. [ 5 ] The sentencing hearing took place on October 30, 2013.

The Crown sought a three-year custody and supervision sentence for Z.N., the young person who used the machete and took the lead in the ugliest aspects of the attack, and a one-year custody and supervision sentence for each of the other three. [ 6 ] Counsel for Z.N. submitted that the 13 months and 8 days that the young person had already served in pre-sentence custody as of that date was sufficient, especially if he were credited at the customary 1.5:1 ratio for that time. Defence counsel urged that, if I concluded that a lengthier sentence was required, it should consist of probation.

Counsel for the other three young persons sought sentences ranging from probation to a deferred custody and supervision order to 9 months’ custody and supervision. [ 7 ] Because the preliminary inquiry, guilty pleas and sentencing hearing for all four young persons took place as a joint proceeding and are intertwined, I have written one, comprehensive judgment. It is crucial to respect the principle of parity and to contextualize the actions of these young persons within the entirety of the occurrence.

It must be remembered, however, that the young persons are being sentenced as individuals and therefore I must expressly consider the specific factual nuances and personal circumstances pertinent to each young person. The sentencing analysis for each young person must be individually customized. I will therefore begin with a general outline of the offences and the impact that the assaults had on the two victims. I will then discuss the particular circumstances relevant to each young person. Finally I will outline the applicable legal principles and explain the sentences that I have imposed.

GENERAL OUTLINE OF OFFENCES [ 8 ] The factual foundation for the guilty plea included the preliminary inquiry testimony of several witnesses including A.K., N.K., T.N.’s cousin P.K. as well as police evidence and photographs. The best evidence, however, was a surveillance video that actually depicted the attack.

While the other evidence is helpful to flesh out details and provide the individual perspectives of those most directly affected by the offences, the video evidence provides an accurate and complete portrayal of how these brutal assaults transpired. [ 9 ] On the video, A.K. and N.K. can be seen standing outside the banquet hall. A.S.(2) and P.R. approach and A.S.(2) pushes A.K. N.K. intervenes and pushes A.S.(2) back. A.S.(2) is standing with P.R. and P.R. has a knife in his hand. A small crowd begins to watch what appears to be a stand-off between A.S.(2) and P.R. on the one side and A.K. and N.K. on the other.

Z.N. and A.S.(1) come out of the hall and also gather around A.S.(2) and P.R. Z.N. steps between A.S.(2) and the two victims and runs to his car, returning with the machete. A.S.(1) is now standing behind A.S.(2) and P.R. as they face A.K. and N.K. A number of party-goers, including the birthday girl T.N., stand behind A.S.(2), who is becoming increasingly physical with A.K. Z.N. comes to A.S.(2)’s side and waves the machete as A.S.(2) and A.K. are engaged in a physical conflict, with A.S.(2) appearing to hold on to A.K.’s shirt. T.N. is next to A.S.(2), trying to pull him away.

A.S.(2), A.S.(1) and P.R. bring A.K. down to the ground and Z.N. and A.S.(1) immediately join in to assault A.K. A.S.(2) then pulls N.K. away and begins to fight with him. P.R. kicks N.K. as he is pulled away. A.K. is on the pavement and Z.N. strikes him several times with the machete while A.S.(1) punches him repeatedly and P.R. circles them. P.R. joins in the kicking

and he, Z.N. and A.S.(1) all kick A.K. as he lies on the ground, offering no resistance. A.S.(1) punches A.K. at least 14 times in between the machete blows. P.R. leaves A.K. to go and stand by A.S.(2) as he fights with N.K. Z.N. turns to N.K. and begins hacking at him with the machete. The assault ends when all four young persons suddenly leave the scene. It is uncontested that they leave because they hear that the police are on their way. Miraculously, A.K. and N.K. stand up and leave the scene, going on their own to the hospital.

Both of them are treated in the hospital and interviewed by police. [ 10 ] N.K.’s injuries included: • A gash and fracture to his left forearm. The gash was 10 cm long, 8 cm wide and 5 cm deep and required 14 staples to close; • A gash near his left knee, 8 cm long, 4 cm wide and 3 cm deep, that also needed 13 staples; • A 2 cm gash to his left eyebrow. [ 11 ] A.K. suffered: • A machete slice to the back of his neck, 10 cm long, 8 cm wide and 5 cm deep that needed 5 stitches and 10 staples to close.

The cut was within an inch of his spinal cord and the photographs clearly show that the gash was deep enough to expose his spine. After the attack, A.K. was basically unable to move for a month; • A gash to his left leg, 5 cm long, 4 cm wide and 4 cm deep requiring 5 staples; and • A cut to his lower left leg that needed 2 stitches. VICTIM IMPACT [ 12 ] The Crown did not file victim impact statements but both victims testified at the preliminary inquiry and gave some evidence relevant to how this attack affected them. [ 13 ] N.K. testified that he was off work for two months because of his broken arm.

He still bears an ugly scar where his arm was gashed and stapled together. [ 14 ] A.K. had no memory of anything that happened that day between arriving at the party and waking up in the hospital. He testified that he was in shock and in bed for an entire month after the attack. The doctors had told him not to get out of bed and, in any event, he was unable to walk. His memory of that whole month was cloudy and vague. He had to return for further treatment for his neck six times. Fortunately, A.K. made an extraordinary recovery.

At the time of his testimony, A.K. had graduated high school and was going to university. PARTICIPATION AND PERSONAL CIRCUMSTANCES OF THE YOUNG PERSONS Z.N. [ 15 ] Z.N. pleaded guilty to three offences: assault with a weapon (i.e., the machete) against A.K., aggravated assault against A.K. and aggravated assault against N.K. He was the primary assailant and by far the most culpable of the four young persons. Z.N. is the one who wielded the machete. He is the one who inflicted the gravest wounds.

It was his chain of decisions in running to his car, returning with his machete and hacking at both victims over and over again that recalibrated this incident from a group attack into a brutal, terrifying assault that resulted in devastating injuries. Not only did Z.N. bring the machete into the scene, but he wielded it with such vicious force that he broke N.K.’s arm and slashed A.K.’s neck literally to the bone. Z.N.’s brutality was the engine that drove this attack and his weapon inflicted the most grievous harm.

Further, unlike some of the other three young persons, Z.N. directed the full fury of his violence at both of the victims. First, he struck A.K. multiple times with the machete and then, when he was done with A.K., he turned to N.K. and hacked at him as well.

Thus, there are uniquely distinguishing aggravating factors arising from Z.N.’s participation in these offences, including the fact that Z.N.: • escalated the violence by introducing the machete; • was the lead aggressor in a group assault; • caused the most serious injuries; • attacked both victims; and • prolonged the assault by attacking first one victim and then the other. [ 16 ] Z.N. explained to the author of the s. 34 report that he initially got the machete because he believed that A.K. and N.K. would be intimidated by it.

When they did not back off as he had expected, Z.N. worried that his reputation as a tough person to be feared would be harmed. He lost control and claims that he did not realize he was causing such significant bodily harm because he did not see blood. [ 17 ] Z.N. was 17 years old at the time of the offence and is now 18. He has no criminal record or prior involvement in the criminal justice system. He has been in secure, pre-sentence custody at the Roy McMurtry Centre for 14 months and 10 days.

[ 18 ] Z.N.’s remorse for his actions, including their grievous impact on the victims and the subsidiary harm and the trauma that he caused the families of his victims, the other persons at the party, his friends, co-accused and family, is patent. Not only did he express that remorse to the authors of the pre-sentence report and the s. 34 report, but he also wrote letters of apology to A.K., N.K., T.N. and P.K. and repeated the apology in court.

When I asked if he wished to say anything before I sentenced him, Z.N. stated that he was sorry to everyone affected by the incident, would take it back if he could and had learned from his mistake. [ 19 ] Z.N.’s s. 34 report indicates that he has had the benefit of a loving and supportive family. He is close to his parents but has damaged that relationship, especially with his father, as a result of oppositional and now criminal behaviour. Z.N.’s parents have visited him weekly while he has been in custody and he appears to have gained a true appreciation of and respect for the importance of family.

He also expressed profound remorse for the impact of these offences on his mother. [ 20 ] Z.N.’s oppositional conduct appears to have begun in grade 9. Until then, he had a group of bright, pro-social friends. Upon starting high school, however, he wanted to fit in and sought out peers whom he perceived to be respected and feared. His association with that group included backing each other up in physical confrontations. Z.N.’s change in social choices mirrored the deterioration of his academic engagement.

Although no particular concerns arose in grade 9, his absenteeism began mounting in grade 10, and in grade 11 he failed all of his courses due to missed classes. Apparently, instead of going to school, Z.N. was hanging out with friends, playing video games and smoking cigarettes. [ 21 ] The s. 34 report indicates that, in hindsight, Z.N. has realized that these high school friends were not true friends and he has no plans to re-connect with them when he returns to the community. Rather, he hopes to re-establish the positive relationships he formed in elementary school.

He completed his high school diploma while in custody and distinguished himself as, to quote the report from the Roy McMurtry Centre, “an exceptional youth and an asset to the program.” He plans to go to university and has demonstrated that he has the aptitude, commitment and ability to follow through with that plan and do well. [ 22 ] All of the materials filed on sentencing, including the s. 34 report, clearly trace an arc of progress beginning with Z.N. having lost his way in high school, then struggling during the first couple of months in custody before steadily gaining insight, maturity and wisdom.

The risk assessment calculated his risk to re-offend directly after the offence as moderate but urged that this result be interpreted in light of his accomplishments while in custody. Particularly, Z.N. has participated successfully in institutional programming, developed positive relationships with staff and become a role model to other youth. His motivation to change and demonstrated commitment to that goal prompted the author of the s. 34 report to express optimism that he has already ameliorated aspects of the initial risk assessment.

The report also warned, however, that Z.N. will face a challenge in sustaining these positive changes once he returns to the community and recommended close supervision and monitoring. [ 23 ] In my view, Z.N.’s growth and maturation since this offence illustrate that he has the strength and character to accomplish his personal goals and to become a fine man and citizen. Moreover, I believe that he has the capacity to turn this experience and his pivotal, reprehensible role in these grave offences into a source of wisdom, empathy and renewal.

Whether or how he makes use of all that he has learned since July 29, 2012 remains to be seen. The choice is his. A.S.(1) [ 24 ] A.S.(1) pleaded guilty to aggravated assault against A.K.. He was an active and aggressive participant in that assault. He helped A.S.(2) and P.R. bring A.K. to the ground and began to assault him along with Z.N. A.S.(1) repeatedly punched A.K. while he was on the ground in between machete blows, striking him at least 14 times. He also joined Z.N. and P.R. in kicking A.K. as he lay there.

His conduct was vicious and chilling. [ 25 ] In contrast with his relatively aggravated role in the offences, there are many mitigating factors arising out of A.S.(1)’s personal circumstances and his conduct since the incident. A.S.(1) will turn 18 in a couple of weeks. When he committed these offences, he was just 16. He has a stable, secure and supportive home environment. Both of his parents work and his older brother is in university.

He has good relationships with his family, although his parents and he have had difficulty discussing these offences and their impact because of worries about upsetting family members. The authors of the s. 34 report expressed concern about the disconnect between A.S.(1)’s need for family support and the family’s lack of ability to talk about his criminal involvement. Family communication will an be important source of support for A.S.(1)’s rehabilitation. [ 26 ] A.S.(1)’s school record indicates that, when he applies himself, he is capable of substantial success.

Although he is bright and able, A.S.(1) has been noticeably selective about when and how he chooses to apply himself. He did very poorly in elective courses in grade 12 because he simply did not attend class. After upgrading his marks at a private school, A.S.(1) was accepted to McMaster University. He has deferred his acceptance in order to deal with these criminal charges. It is clear from the s. 34 report that A.S.(1) needs to begin usefully occupying his time and embarking on his future.

As observed by the authors of the s. 34 report, “obtaining his university education will be an important protective factor in keeping A.S.(1) free from future criminal behaviour. Prior to the current charge, although he had some minor difficulties at school, he appeared to be on track to finish high school and go on to post-secondary education, which has been interrupted due to his criminal involvement.

He is encouraged to enrol at university as soon as possible to help him regain this positive developmental trajectory.” [3] [ 27 ] A.S.(1) has already begun to pay the consequences for his crimes, having spent most of the time leading up to the preliminary inquiry under strict bail conditions and the very rigorous supervision of his parents. He has missed out on all of the social elements of his final year of high school and has had to defer his university acceptance in order to deal with his crimes.

His friends have gone on to university this year without him. [ 28 ] A.S.(1) still has little insight into his motivation for attacking A.K. so viciously. He indicated to the s. 34 report author that he instinctively felt he should help protect Z.N. once the fight started, and then was propelled by adrenaline. Still, A.S.(1) was assessed

as a relatively low risk for reoffending. In order to maintain that low degree of risk, the s. 34 report urged that A.S.(1) move forward on the pro-social path that he has now set for himself and ensure that his time is occupied with positive and constructive activities. Specifically, the report emphasized the importance of A.S.(1) commencing his post-secondary education. [ 29 ] While he did not understand or could not articulate why he perpetrated such violence, A.S.(1) did take full responsibility for his role in the attack.

He now says that he should have left the scene and appreciates the seriousness of the offences and how deeply they have harmed the victims as well as their families and, in turn, his own family. In addition to the remorse demonstrated by his guilty plea, A.S.(1) has explicitly apologized to his parents and stated in open court on the last date that he is sorry for the pain and suffering that he caused the victims and their families. He asserted that he has learned from this experience and will take better steps in the future. A.S.(2) [ 30 ] A.S.(2) pleaded guilty to aggravated assault against N.K.

He committed this offence the day before he turned 17 years old and is now 18. He spent 2 ½ weeks in pre-trial custody before being released on bail, then was bound by a curfew for four months before a breach of his conditions led to house arrest for several months. [ 31 ] In A.S.(2)’s case, there are aggravating factors arising from his specific participation in the offences as well as his personal circumstances. A.S.(2) was the one who ignited the conflict by confronting and engaging the victims. He was also the first young person to initiate the violence by pushing A.K.

He became increasingly physical with A.K. and was holding him by his shirt when Z.N. returned with the machete. A.S.(2) participated in bringing A.K. to the ground and then pulled N.K. away to engage him in a fight. A.S. (2) continued to fight with N.K. as Z.N. hacked at A.K. with the machete. Thus, although he possessed no weapon and did not personally inflict the worst of the injuries, A.S.(2) played a pivotal role in instigating and continuing the attack. [ 32 ] Further, at the time of these incidents, A.S.(2) was on release for an assault, to which he ultimately pleaded guilty.

That assault also involved a group of boys ganging up on another boy. It took place at school and consisted of A.S.(2), his brother and other boys pushing and punching the boy as he stood by his locker. A.S.(2) has also previously completed an extrajudicial sanction in relation to another assault against a youth. In both of these instances, A.S.(2) claimed that the victims were older than he was and that he was fighting in order to defend himself or a peer.

The s. 34 report indicated that he was not remorseful about these incidents because the victims “had it coming” since they had picked on A.S.(2) or a friend. [ 33 ] A.S.(2) did reasonably well in school and enjoyed a relatively close relationship with his parents until grade 11. At that point, he began using alcohol and marijuana and became distant from his parents, ignoring his curfew and declining to tell them where he was because he did not want them checking up on him. A.S.(2) has three older siblings and a twin brother.

The three older siblings have all succeeded in post-secondary education, while his twin brother appears to have struggled. His parents urge him to pursue his studies, presumably to follow in the footsteps of his older siblings. His father has urged him to stay home, devote his time to studying and sever ties with his friends, but A.S.(2) finds this advice to be unrealistic.

Although there is no particular family conflict, the s. 34 report indicated that A.S.(2)’s home life is a source of sadness for him. [ 34 ] A.S.(2) has an assortment of friends, some of whom have progressed to university while others spend their time hanging out, using marijuana and drinking alcohol. A.S.(2) has also been involved in conflicts between different groups of youths in his neighbourhood. The conflicts have been a source of concern to his mother and also noted by his older sister. [ 35 ] A.S.(2) seems to have little to occupy his time. He has no particular interests in activities or sports.

His employment is limited to a brief, part-time job at Tim Horton’s in August, 2012, which ended when he began house arrest as a result of breaching his release on these charges. A.S.(2) wants to finish high school but has no particular ambition beyond that. He wishes to earn money but is not motivated to study or work particularly hard or tolerate boredom. A.S.(2)’s educational record is troubling. A consistent theme throughout his school career is a disinterest in applying himself or being diligent about attendance.

He was also repeatedly suspended for a variety of misconduct including truancy, coming to school under the influence of marijuana, fighting and swearing at his teacher. [ 36 ] Importantly, the psycho-educational assessment included in the s. 34 report indicates that A.S.(2) has the intellectual capacity to succeed academically. The

summary of the psycho-educational assessment was as follows: Generally speaking, A.S.(2)’s cognitive abilities are quite well developed and his scores were generally as expected for his age. Similarly, no serious difficulties were noted across academic domains, with particularly strong functioning in math displayed. Given A.S. (2)’s lack of motivation and disengagement from academics, as well as his substance use, these results strongly suggest he has the capacity to graduate from high school and go on to post-secondary education if he was so inclined.

The results also suggest his academic underachievement is not due to underlying cognitive or learning challenges but rather to socio-economic or behavioural difficulties.[emphasis in original] [4] In other words, A.S.(2)’s goal of finishing high school is completely within his reach. He also has the ability to pursue and succeed at post-secondary education. His primary obstacle is not a lack of intelligence but rather a lack of motivation. [ 37 ] A.S.(2)’s apathy and lack of motivation appear to have coincided with his susceptibility to negative peer influences and prolonged use of marijuana and alcohol.

Before he started house arrest after breaching his bail on these charges, A.S.(2) would drink on most nights and would occasionally get so drunk that he could not get up the next day. He sometimes experienced memory losses about what had happened when he was drunk. As with alcohol, A.S.(2) began using marijuana in grade 10, but started to abuse the drug in grade 11. He missed school due to the combination of drug and marijuana abuse and continued using both, even though he felt guilty about it and believed that substance abuse was taking over his life.

Although he has now reduced his substance use, A.S.(2) continues to believe that marijuana has health benefits. According to the s. 34 report, he has not embraced the idea of substance abuse counselling, although my impression is that he is prepared to comply if that were ordered as a condition of his sentence.

[ 38 ] A.S.(2) is to be credited for demonstrating his remorse and acknowledgment of responsibility with his guilty plea. Beyond that, he has displayed no particular insight into his actions or empathy for the people he has harmed. According to the s. 34 report, A.S. (2) regrets his actions and realizes that he should have walked away. He is prepared to be held accountable for this offence and motivated to avoid further conflict with the criminal justice system. Unlike the other young persons, A.S.(2) is not in a position to submit that violent conduct and criminal offending are out of character for him.

His history suggests that this offence was the culmination of a series of poor choices ranging from bad behaviour at school to substance abuse to negative peer connections. A.S.(2) is completely capable of rehabilitation. It is entirely possible that this experience will provide him with the motivation and resources that he needs to turn away from the bad decisions that have marred his adolescence. [ 39 ] A.S.(2)’s risk for general recidivism was assessed as moderate.

The s. 34 report and the pre-sentence report suggest that his rehabilitation would be facilitated by counselling to address lack of empathy and his use and justification of physical aggression. He would also benefit from addressing his substance use and avoiding unstructured leisure time and association with peers who draw him into conflict. It is clear that A.S.(2) has genuine potential to be successful at school, work and life.

What has held him back and gotten him into trouble time and again are the choices he has made: too much alcohol, too much marijuana, too much free time, too many friends that are a negative influence and too many justifications for being physically aggressive. [ 40 ] This time, A.S.(2)’s yielding to his own aggressive impulses resulted in terrible consequences for many people. It was not the first time that his physical aggression and violence brought him into conflict with the law. Depending on the choices he makes now, there is room to hope that his decision to accept responsibility for his

part in these horrific assaults will end his criminal conduct and start him on a path towards fulfilling his potential for success and happiness. P.R. [ 41 ] P.R. was 17 years old at the time of the incident and is now 18. P.R. pleaded guilty to two charges: aggravated assault against A.K. and weapons dangerous in relation to possessing a knife during the altercation.

The aggravating features of P.R.’s conduct were the added factor of holding the knife throughout the assaults, his participation in bringing A.K. to the ground and his kicking both A.K. and N.K. as they lay on the ground. [ 42 ] With respect to his role in the offence before the court, P.R. claimed to have run to retrieve the knife from the birthday party for self-protection. He was surprised to see the machete come out and thought it was out of character for Z.N. to behave so aggressively.

P.R. recalled pushing the two victims to the floor and kicking them and maintained during the s. 34 report that he felt there was no choice that night other than to fight. While P.R. still perceives his actions as defensive, he also has expressed some guilt and regret about his involvement in the fight, the impact on his mother and the suffering of the injured victims. [ 43 ] P.R. spent 22 days in secure, pre-trial custody before being released on house arrest with his aunt as his surety. Reports from the secure custody facility indicated that he was fully cooperative with staff.

He has also complied diligently with his strict bail conditions since his release. The house arrest has been onerous, because P.R. has been lonely and cut off from the sporting activities that he loves. [ 44 ] P.R. has permanent resident status in Canada, having originally come here from Sri Lanka as a refugee.

His counsel had originally advocated for a sentence of less than six months’ custody and supervision because anything greater would risk foreclosing an avenue of appeal for a removal order for “serious criminality” under the Immigration and Refugee Protection Act . [5] In further submissions, counsel directed my attention to s. 36(3)(e)(iii) of the Act, which exempts youth sentences. Accordingly the sentence imposed for these offences at this time will have no direct consequences for for P.R.’s immigration status. [ 45 ] P.R. does not have an easy home life.

His father had come to Canada five years before the rest of the family and P.R. missed him greatly while he was living in Sri Lanka with his mother and sister. When they were reunited here, P.R. and his father remained extremely close. His father was P.R.’s confidante and role model and was highly involved in P.R.’s life, attending all of P.R.’s sports games and maintaining weekly contact with P.R.’s teachers. In 2010, P.R.’s father travelled back to Sri Lanka for a family funeral and was tragically killed in a car accident. P.R., 15 years old at the time, was devastated.

He still describes the sudden loss of his father as the worst thing that has ever happened to him. After his father’s death, P.R. was expected to become the man of the house and take care of his mother and younger sister. He obtained part time work to try to help support the family and cover his own expenses. He acts as both brother and father to his younger sister.

P.R. indicated to the author of the s. 34 report that he enjoys the supervisory role because it gives him some influence but also wishes he could be “just a regular kid,” without parenting responsibilities. [ 46 ] Comments from all of the school, police and institutional authorities unanimously noted P.R.’s polite, cooperative and pleasant attitude in all interactions. He participated diligently in the assessment process. As indicated by a series of letters from his social worker, Ms.

Initha Subramanium, he has made consistent efforts to offset his behavioural challenges, school suspensions and now criminal charges with genuine investment in his academic studies, volunteer work and academics. [ 47 ] P.R. was involved in volunteer work throughout grades 9, 10 and 11. For example, he has volunteered for more than 400 hours for the Children’s Aid Rehabilitation Education Program, raising funds for children in refugee camps.

He also worked part time in a grocery store and later a gas station to help cover his own financial expenses and to reduce the financial burden on his mother. [ 48 ] P.R. is a gifted athlete. Prior to his house arrest, he was highly involved in various sports. He captained his school volleyball team, leading them to a regional championship.

Being prevented from participating in sports while awaiting the resolution of these criminal charges has been a hardship to him and he hopes to join sports teams in university. [ 49 ] Academically, P.R. did well in his earlier school years in Canada, despite needing extra assistance to catch up in English language skills. His grades dropped and he failed several courses in grade 11 when he began skipping classes in order to hang out with peers.

P.R. transferred to a different school in order to attempt a fresh start and was doing well until he got hit by a car while walking home from a grocery store and was hospitalized and then had to stay home and miss school for 2 ½ weeks. After returning to school,

P.R. continued to experience pain and discomfort from the injuries sustained in the accident and has yet to regain his motivation to do well in school. He is also awaiting the outcome of these charges before he can fully recommit to his studies. Generally, it is obvious from his school record that P.R. has the potential for academic success, if he can find the motivation to focus and pursue his education. [ 50 ] P.R. has used alcohol and marijuana with some frequency over the past few years, particularly following the death of his father.

The s. 34 report indicated that he appears to have turned to both of these substances to help cope with his father’s death and raised concerns about binge drinking. P.R. advised the s. 34 report author that he has stopped drinking and using marijuana while under house arrest. There is, however, a hazard that he will resume his substance use when he is allowed to rejoin his social group. [ 51 ] Although P.R. has no criminal record, he has admitted to feelings of anger and desires to retaliate physically if he were attacked, threatened or treated rudely.

Prior to these offences, he was involved in three physical fights, believing that he had no choice due to either social pressure or the need to defend himself. He was surprised when the s. 34 assessor informed him that fighting “one on one” is not a legal activity, because he had witnessed a school fight where the police had come and told the spectators that they could be arrested but the people fighting could not.

Through in the course of the s. 34 assessment, P.R. came to understand that much of his attitude towards physical aggression represented a reaction to his perception of a constant tension between individuals in the high school setting. He had a sense of entitlement to aggress against others when frustrated by them as well as a feeling of pride in his ability to fight.

As well, although P.R. did not present as a typical antisocial youth, his tendency to become frustrated as well as influenced by his peers place him at risk for continued difficulties. [6] P.R. indicated that he wanted to change his approach to anger and aggression and did not want to be perceived as a bully. [ 52 ] P.R. was assessed in the s. 34 report as a low risk to reoffend.

The risks were related to his emotional distance from his mother, negative peer relationships, previous substance use, some academic “missteps” and personal qualities such as tendencies towards physical aggression and poor frustration tolerance. On the other hand, P.R. has some areas of real strength, including his potential for academic achievement and involvement in volunteer work and athletic activities. The s. 34 report concluded that many of the problems that P.R. has experienced are attributable in some way to the traumatic death of his father.

Clinical intervention to aid in processing grief and managing negative emotions was highly recommended to prevent the escalation of his mental heath needs relating to this loss. [7] [ 53 ] All of the information that I have received about P.R., including the pre-sentence report, the materials from Ms. Subramaniam and the submissions of counsel, accord with the conclusion in the s. 34 report that he is at a “cross-roads.” He has the ability, if he chooses, to complete high school and go on to university.

Further, if he takes advantage of this opportunity to address his mental health needs, he is capable of setting a new direction for his life, one that takes him towards success, fulfillment and happiness and away from conflict, aggression, substance abuse, violence and criminal behaviour. AGGRAVATING AND MITIGATING FACTORS [ 54 ] The aggravating and mitigating factors in this case fall into two categories: those that pertain to all of the young persons equally and those that relate to each individual.

Factors Applicable to All Four Young Persons [ 55 ] The common aggravating factors are as follows: • These young persons instigated the violence; • The senselessness and sheer viciousness of the attack; • The assault included the use of weapons; • The attack was prolonged far beyond one initial outburst; • The attack continued despite onlookers and people trying to intervene; • The violence took place in a public mall outside a sweet sixteen birthday party, exposing party-goers and members of the public to this bloody and traumatic event; • This was a group assault on two outnumbered and unarmed victims.

I reject Crown counsel’s allusions to gang affiliations as unsupported by any tangible evidence, but the attack did take on a gang mentality here. All four young persons were swept away by the tide of violence that they instigated. The two victims did not stand a chance. • Both victims suffered severe injuries.

It was sheer, extraordinary luck that A.K.’s neck wound was not lethal and that neither victim suffered the type of catastrophic injuries that would have permanently and substantially impaired his daily life. • The attack only ended when the word circulated that the police were on their way. • When they fled in advance of the police arrival, the young persons exacerbated the callousness of the assault by leaving the victims lying on the ground, severely injured. [ 56 ] In view of these aggravating factors, there is no question that these were extremely serious offences.

Regardless of the individual roles played by each young person, the baseline gravity of the criminal conduct and these generally applicable aggravating circumstances are crucial to establishing the appropriate rubric for calculating proportionality and assessing accountability. [ 57 ] The primary mitigating factor that applies equally to all four young persons in this case is their guilty plea to these offences. The guilty pleas demonstrate the young persons’ remorse and acknowledgement of responsibility. They also pre-empt the necessity of

the victims having to testify again at trial. Admittedly, as pointed out by Crown counsel, the guilty pleas were not entered until the end of a relatively lengthy preliminary inquiry and after the two victims and two civilian witnesses gave their evidence. The process of recounting and reliving the trauma of the incident or reaching back for memories that were obliterated by physical injuries was clearly difficult for the victims and witnesses.

Accordingly, the pleas do not have the same mitigating impact as they may have in an earlier stage of these proceedings. [ 58 ] Nevertheless, in acknowledging their culpability and in seeking to be held accountable for their crimes, the young persons have taken a major step towards fulfilling the objectives of the Youth Criminal Justice Act [8] (“YCJA”).

As illustrated by their sincere and willing participation in the s. 34 assessments and the comments and observations that they made in the s. 34 reports and the pre- sentence reports, all four of these young persons have initiated and taken ownership of their rehabilitation process. Their guilty pleas demonstrate that they have already started down the road towards developing the insight and the strength to become law-abiding adults and citizens who make genuine contributions to their community instead of causing harm.

Additional Individual Aggravating and Mitigating Factors: [ 59 ] I have already reviewed the circumstances of the offences and the offenders in relation to each young person. The specific aggravating and mitigating factors pertinent to each individual arising from that review are enumerated below.

Z.N. [ 60 ] The aggravating factors are as follows: • Z.N. was guilty of three offences: assault with a weapon and aggravated assault against both A.K. and N.K. • Z.N. possessed the machete, a vicious and potentially lethal weapon. • Z.N. brought the machete to the scene. • Z.N. struck blow after blow against both victims, prolonging and exacerbating the assaults and the damage done with each blow. • The machete blows inflicted by Z.N. caused the most serious and grievous injuries.

Bluntly put, it is a miracle that both victims are alive. [ 61 ] Crown counsel suggested that the young person’s conduct as shown in the surveillance video from McDonald’s restaurant directly after the incident is also aggravating in that it demonstrates bravado and lack of remorse. In my view, however, without further reliable

interpretation, it is impossible to place any real, definitive weight on the actions depicted in that video. [ 62 ] The mitigating factors are: • Z.N. had no criminal record and no involvement in the criminal justice system at all when he committed this offence. • In many ways, apart from committing these terrible offences, Z.N. has led an exemplary life. He lost his compass once he started high school, and succumbed to the negative, antisocial influence of peers who were more interested in substance abuse and risk taking than in school and progressing towards a constructive future.

He now appears to realize how dangerous and unfortunate that detour was and has returned to a path that could allow him to fulfill his potential. • Z.N. has come to recognize how fortunate he is to have a loving and supportive family.

He has worked hard to repair the damage his criminal conduct has caused and to regain his parents’ pride and respect. • Z.N. has expressed his remorse, not only through his guilty plea but also through specific letters of apology and assertions in court. • Z.N. has distinguished himself as a model inmate and fought his way back from academic failure to completing his high school diploma and applying to university.

He has shown extraordinary strength of character by making the ways the most of his time in custody by taking advantage of all of the learning and growth opportunities he could find to pursue his own rehabilitation. • Z.N.’s growth goes beyond his academic success and his insights into his own character. He has also earned the respect of the staff in custody and learned how to interact with authority figures in a mature and constructive way. A.S.(1) [ 63 ] As with Z.N., the primary significant aggravating factor relating to A.S.(1) was the nature of his participation in these offences.

A.S.(1)’s attack on A.K. was frighteningly aggressive, sustained, vicious and determined. He assisted in bringing A.K. to the ground and punched him at least 14 times in between machete blows. He also joined in in kicking A.K. as he lay helpless.

He may not have had a machete, but the level of violence that A.S.(1) inflicted against A.K. was high. [ 64 ] The specific mitigating factors applicable to A.S.(1) are: • A.S.(1) has endured strict bail conditions during a year when his friends have enjoyed the freedoms and benefits of graduating high school and the excitement of preparing for university. • Despite the constraints on his liberty and the stress of these charges looming over him, A.S.(1) has finished high school,

upgraded his marks at a private school and gained acceptance to McMaster University. He has had to defer his acceptance to address these charges. • A.S.(1) has shown the depth and sincerity of his remorse in several ways, including apologizing to his parents and asserting in open court his regret for the pain and suffering he visited on the victims and their families.

A.S.(2) [ 65 ] The relevant aggravating factors particular to A.S.(2) are as follows: • A.S.(2) was the original catalyst for the torrent of violence that followed. • A.S.(2) attacked and assaulted both of the victims, first helping to bring A.K. to the ground and then pulling N.K. away and assaulting him, preventing him from coming to A.K.’s aid. • Unlike the other young persons, this was not A.S.(2)’s first involvement with the criminal justice system.

He was on a release for an assault when he committed this offence. [ 66 ] Unfortunately, it is difficult to point to specific, additional mitigating factors in A.S.(2)’s case. Unlike the other young persons, he is not in a position to claim that this offence was out of character. He has a documented history of fighting and violence, a lengthy list of school infractions, substance abuse issues and limited insight into the criminal nature of his conduct or ways to work towards a better future.

Despite possessing aptitude and ability, A.S.(2) has not demonstrated any particular motivation to address the factors that contributed to his criminal behaviour or to pursue a more pro-social path. P.R. [ 67 ] The significant, distinguishing, aggravating factor relating to P.R. is his possession of a knife during the altercation. He was the only young person in addition to Z.N. to arm himself with a weapon.

Even though his actual, physical contributions to the violence were less egregious than those the others, bringing a second weapon to the scene amplified the seriousness of the occurrence, as appropriately reflected by his guilty plea to the additional offence of weapons dangerous.

Further, P.R.’s role was not limited to circling the assailants and brandishing the knife; he also directly participated in bringing A.K. to the ground and in kicking both A.K. and N.K. [ 68 ] Summarized, the mitigating factors specifically applicable to P.R. are as follows: • As reflected in the positive s. 34 and pre-sentence report reports, P.R. did very well during his 22 days in pre-trial custody, complying fully with staff in the institution.

He has done equally well in complying with his house arrest since his release. • House arrest has been difficult and onerous for P.R., since it has kept him from participating in the sporting activities in which he has excelled and from which he has derived much happiness and fulfillment. • P.R. has had to shoulder the additional challenge and burden of the tragic and sudden loss of his father in 2010. As well as having to contend with his own grief, P.R. has been required to assume adult responsibilities within his home.

He is the man of the house, charged with helping to care for his mother and younger sister and working part time to contribute financially to the family. • P.R. has no criminal record. • P.R. has worked hard to recover from behavioural and academic setbacks that he experienced after the death of his father. • In addition to committing to his academic studies, P.R. has dedicated himself to volunteer work and community service both before and after committing these offences.

APPLICATION OF YCJA SENTENCING PRINCIPLES IN THIS CASE [ 69 ] These offences took place prior to the coming into force of the sentencing amendments introduced by the Safe Streets and Communities Act , S.C. 2012, c. 1. Accordingly, the principles that govern my decision are those that pre-date those amendments. Further, the timing of the offences requires that I rule on the Crown’s application for a judicial determination of serious violent offence pursuant to the s. 42(9) of the YCJA , which has since been repealed.

Serious Violent Offence Determination [ 70 ] The significance of the serious violent offence determination in this case relates mainly to the request of some of the young persons that any custodial sentence imposed take the form of a deferred custody and supervision order. In the former version of the YCJA, s. 42(5) excluded designated serious violent offences from consideration for a deferred custody and supervision order. Counsel for A.S.(1) and A.S.(2) both submitted that the facts in this case did not support a judicial determination of serious violent offence and asked that I decline to make that finding.

Counsel for P.R. had initially taken the same position but abandoned it in his sentencing

submissions.

Z.N. concedes that his offences should be designated as serious violent offences. [ 71 ] The statutory framework for making a judicial determination of serious violent offence was set out in s. 42(9) and s. 2(1) of the pre-amendment version of the YCJA as follows: s. 42(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly. s. 2(1) “serious violent offence” means an offence in the commission of which a young person causes or attempts to cause serious bodily harm.

The contention of defence counsel is that the party liability basis upon which A.S.(2) and A.S.(1) were found guilty means that I cannot find that they specifically caused or attempted to cause serious bodily harm as required by the definition of serious violent offence.

Alternatively, in the event that the offence does meet the definition of “serious violent offence,” they suggest that I exercise the discretion indicated by the use of the word “may” in s. 42(9) to decline to enter a serious violent offence designation. [ 72 ] In Ontario, the governing authority on serious violent offence determinations is the two-stage test adopted by the Court of Appeal in R. v. K.C. [9] First, the court must be satisfied that the offence falls within the definition of serious violent offence.

Secondly, if the offence meets that preliminary threshold, the court must exercise its discretion in deciding whether a judicial determination of serious violent offence is necessary to achieve the purposes of youth sentencing. [10] Step 1: Is this a serious violent offence? [ 73 ] K.C. is particularly relevant to the instant case because it addresses the analogous situation where a young person’s guilt is based on party liability.

The court of appeal in K.C. observed that, “where a young person is found guilty as a party to an offence that causes serious bodily harm, it seems entirely consistent with the objectives of the YCJA that the young person be eligible for an SVO designation.” [11] An offence committed as a party will meet the definition of serious violent offence if the young person’s conduct was a “contributing cause ‘outside the de minimis range’ or ‘a contributing cause that is not trivial or insignificant.” [12] The court of appeal further observed in obiter that it may be “arguable that some level of foreseeability is a necessary component of determining whether a young person is sufficiently morally blameworthy to meet the threshold for an SVO designation,” but declined to address that question directly. [13] [ 74 ] In my view, the actions of A.S.(1) and A.S.(2) were a significant contributing cause to the serious bodily harm suffered by both N.K. and A.K.

Further, the bodily harm suffered by both victims was reasonably foreseeable by each of these young persons. This was a four against two beating. A.S.(1) punched A.K. at least 14 times, alternating with the machete blows. In doing so, he contributed to A.K.’s helplessness. He also added his fury and his presence to the group nature of the assault, helping to overwhelm any possibility of resistance or efforts at self-defence. Similarly, A.S.(2) was fully invested in the assault, having initiated the physical violence in the first place.

He assaulted both victims and even pulled N.K. away to assault him and prevent him from helping A.K. His participation, like that of A.S.(1), facilitated and magnified the violence and intensity of the attack. Thus, the offences and specific conduct of both A.S.(1) and A.S.(2) fell resoundingly within the definition of serious violent offence.

Step 2: Should I exercise my discretion to decline to impose a judicial determination of serious violent offence? [ 75 ] The Court of Appeal in K.C. determined that discretion with respect to a s. 42(9) designations enables the youth justice court to achieve the YCJA objective of reducing the over-use of custody for young persons where a judicial determination of serious violent offence is unnecessary to hold a young person accountable for committing a serious offence. [14] Thus, the court may decline to impose a serious violent offence designation even where the threshold has been met. [ 76 ] I have considered the consequences of a judicial determination of serious violent offence for both A.S.(1) and A.S.(2) and concluded that declining to make the designation in this case would run contrary the principles of youth sentencing.

The group character of the assault, the level of violence and the moral culpability of both of these young persons require a sentence that properly and proportionately reflects their accountability. I recognize that A.S.(1) has made significant strides towards rehabilitation and that the offence is out of character for him. I am also cognizant of the fact that A.S.(2) may not have landed as many blows as A.S.(1) or the other participants. Further, there is no evidence that either of these young persons subjectively foresaw that Z.N. would escalate the assault by introducing the machete.

Nevertheless, given the gravity of the offences and the nature of these young persons’ participation, I am not satisfied that it is unnecessary to impose a judicial determination of serious violent offence in order to hold these young persons accountable. [15] Accordingly, there will be serious violent offence designations for all four young persons. Availability of a Custodial Sentence – s. 39(1)(a) [ 77 ] All parties in this case appropriately concurred that custody is an available sentence, since these young persons unequivocally committed “violent offences” within the meaning of s. 39(1) (

a) of the YCJA . Of course, just because a custody sentence is available does not mean that it is an inevitable sentence. The violent nature of these offences simply allows me to consider custody as a sentencing option. [ 78 ] While identifying the applicable aggravating and mitigating factors is always an essential part of the exercise, it is only one component of the YCJA sentencing analysis. The YCJA sets out an elaborate and complex framework for assessing the particular circumstances of each young person and offence in ss. 3 and 38 . Accordingly, I have summarized my application of the relevant YCJA sentencing principles in this case. [16] Accountability:

Meaning of Accountability [ 79 ] Regardless of whether I were operating under the old or amended version of the YCJA sentencing provisions, the governing principle is accountability, as illustrated by s. 3(1) and s. 38 . Section 3(1)(b)(ii) has consistently required that the criminal justice system for youth emphasize, amongst other things, “fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity.” Further,

section 38 of the YCJA identifies the purpose of sentencing as holding “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.” Thus, the objective is to hold young persons accountable.

The means by which that objective is to be achieved is just sanctions that impose meaningful consequences and promote the young person’s rehabilitation and reintegration. [ 80 ] Assessing accountability must also factor in the differing bases of liability between Z.N. and the other three young persons.

Z.N. was the principal assailant on the aggravated assaults, whereas the other three young persons pleaded guilty as parties pursuant to s. 21(2) of the Criminal Code . [17] Section 21(2) provides that, “where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.” While some of the conduct of the other three young persons could also qualify them as taking actions that aided or abetted Z.N. in attacking the victims with the machete, the foundation of my assessment of their accountability accords with the basis upon which they admitted their liability. [ 81 ] The definition of “accountability” in this context was authoritatively set out by the Ontario Court of Appeal in R. v.

A.O. [18] In A.O. , the Court of Appeal equated the concept of “accountability” with the adult sentencing principle of retribution. Citing the Supreme Court of Canada’s analysis of retribution in R. v. M.(C.A.) , [19] the court concluded that, 47 … “ for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, "the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct".

We see no other rational way for measuring accountability. 48 The need to consider the normative character of an offender's behaviour necessarily requires the court to consider societal values. [20] Thus, in order to determine whether a particular sentence is capable of holding a young person accountable, the youth justice court must assess the moral culpability of the young person by considering (1) the intentional risk taking of the young person; (2) the consequential harm caused by the young person; and (3) the normative character of the young person’s conduct.

I have considered each of these three components of accountability for each individual young person. Z.N. [ 82 ] Intentional Risk Taking: As soon as he realized that a confrontation was underway, Z.N. went to his car to get a machete. Introducing and wielding that weapon greatly elevated Z.N.’s intentional risk taking. [ 83 ] Consequential Harm: The machete wounds were by far the most serious injuries suffered by the victims. It remains a miracle that A.K. survived and recovered. Still, he lost at least a month of his life and will carry the trauma of this event forever.

N.K. also sustained several serious injuries including a broken arm. [ 84 ] Normative Character of the Conduct: Z.N.’s conduct constituted an egregious affront to societal norms. He shattered what was supposed to have been a joyous birthday celebration with heinous attack. For senseless reasons, he escalated an already gratuitous confrontation to a terrifying level of violence by retrieving his machete from his car and striking the outnumbered and quickly helpless victims over and over again.

Further, the assaults took place in a public mall in the presence or vicinity of innocent bystanders including families with children. [ 85 ] In all the circumstances, Z.N.’s moral culpability was extremely high. A.S.(1) [ 86 ] Intentional Risk Taking: A.S.(1) was a full and aggressive contributor to the assault against A.K.

He worked with A.S.(2) and P.R. to bring A.K. to the ground, punched him multiple times between Z.N.’s machete blows and kicked him. [ 87 ] Consequential Harm: While he did not wield the machete and there is no proof that he knew in advance or anticipated that Z.N. would use it, A.S.(1) contributed to A.K.’s injuries and the aggravated nature of the assault by helping to outnumber and incapacitate him.

Even though A.S.(1) did not actually directly inflict the machete wounds, he exacerbated A.K.’s inability to defend himself and compounded the violence by punching A.K. over and over again. [ 88 ] Normative Character of the Conduct: A.S.(1) did not violate societal norms to the same degree as Z.N. He did not arm himself or use a weapon. Nevertheless, he also showed no compunction about destroying the celebration and participating in a vicious, brutal attack in a public mall.

A.S.(2) [ 89 ] Intentional Risk Taking: A.S.(2) is the young person who first took the confrontation to a physical level, triggering the ensuing cascade of physical violence. Further, A.S.(2) did not simply join in the assault on A.K. He also assaulted N.K. and kept him from assisting A.K.

A.S.(2) took these risks despite being on a release for another violent offence and therefore knowing what the consequences might be for violating his release conditions. [ 90 ] Consequential Harm: As with A.S.(1), A.S.(2)’s actions facilitated the machete attack and contributed to the helplessness and vulnerability of both victims. [ 91 ] Normative Character of the Conduct: Like A.S.(1), A.S.(2) jeopardized public safety and violated societal norms by instigating a brutal, group attack in a public forum.

P.R. [ 92 ] Intentional Risk Taking: In addition to attacking A.K. and kicking both him and N.K., P.R. elevated the risk by possessing a knife. [ 93 ] Consequential Harm: Like A.S.(1) and A.S.(2), P.R., contributed to the victims’ vulnerability to the machete attack that caused the worst of the physical injuries. [ 94 ] Normative Character of the Conduct: P.R. violated the peace and safety of the public mall and the birthday party by participating in the assault. As well, he armed himself and brandished a weapon, thereby exacerbating the violation of societal norms.

Conclusion Regarding Relative Accountability of the Four Young Persons [ 95 ] The moral culpability of each of these four young persons is high. As fairly acknowledged by all parties, however, Z.N.’s moral culpability is substantially greater than that of the other three young persons. A.S.(1), A.S.(2) and P.R. are all essentially equivalent with one another. The nuances of difference between them ultimately balance out. While their collective degree of culpability is lesser than Z.N.’s, the offences that they committed were grave.

It is within this context that I must design a sentence that provides meaningful consequences for the young persons, promotes their rehabilitation and reintegration, accords with the principles in s. 38(2) and takes into account the factors in s. 39(3). Section 38(2)(a) – The sentence must not exceed what an adult would receive in similar circumstances [ 96 ] The Crown had originally intended to seek an adult sentence for these young persons. The gravity of the assault, the brutality of the violence and the severity of the injuries could easily have justified a significant penitentiary sentence.

Under the YCJA , the maximum available sentence is three years’ custody and supervision for Z.N. and two years’ custody and supervision for the other three. The sentences that I have imposed fall far below what an adult would receive. Section 38(2)(b) – The sentence must be similar to sentences in analogous circumstances in the same region [ 97 ] There are no precisely analogous cases from which a definitive sentencing range can be determined.

Counsel provided a small selection of youth aggravated assault cases delineating a range of 5 months custody at the low end to 24 months custody and supervision plus 12 months probation at the high end. [21] None of these cases is directly on point and some of them are quite dated, having been decided under the Young Offenders Act . Further, the majority of these decisions pertain to aggravated assaults with only one victim.

Section 38(c) – The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence [ 98 ] The determination of proportionality is intrinsically linked to the gravity of the offence and the moral culpability of each young person. As I have already discussed, the moral culpability of Z.N. is extremely high in this case. He was the lead perpetrator and the assailant who directly caused the most grievous injuries. A.S.(2), A.S.(1) and P.R. all played much lesser but still substantial roles in the attack.

Their contributions were equivalent to that of one another. A significant sentence that reflects their differing degrees of responsibility for the offences is necessary to hold each of these young persons accountable. Section 38(2)(d)(e); s. 39(2)(3) - All reasonable, available sanctions other than custody should be considered Section 38(2)(e) – (

i) Least Restrictive Sentence; (ii) most likely to rehabilitation and reintegration; (iii) promote a sense of responsibility and acknowledgment of harm done

[ 99 ] I have considered all potential sanctions other than custody and have concluded that none of them would hold these young persons accountable for the offences, nor would any of them provide meaningful consequences or truly promote the young persons’ rehabilitation and reintegration.

Further, I have concluded that the sentences that I am imposing accomplish all of the goals set out in s. 38(2)(e), in that they are the least restrictive sentences capable of achieving the purpose of sentencing in s. 38(1), the sentences most likely to promote these young persons’ rehabilitation and reintegration into society as well as to bring home to all of them a sense of responsibility and an acknowledgment of the harm they have caused to the victims and the community. [ 100 ] The importance of a significant custody and supervision sentence for Z.N. has already been illustrated by the progress he has made in pre-sentence custody.

He began his detention defiant and oppositional, with little apparent insight into the nature of his offences, the harm he had caused, the value of his family’s love and support, the importance of education or the dangers posed by unwise peer associations. He has made tremendous progress in all of those areas as a result of the structured environment of secure custody.

In order to maximize his potential for rehabilitation and reintegration, it is important, in keeping with the recommendations of the s. 34 report, to ensure that he is provided with ongoing support as he returns to the community and pursues his education. To that end, Z.N.’s sentence will allow for a modulated transition back to the community. [ 101 ] A meaningful consequence for A.S.(1) must hold him accountable and genuinely reflect his role in these offences while simultaneously promoting his rehabilitation and reintegration. A non-custodial sentence would be contrary to this objective.

A.S.(1) was an active, violent participant in this attack. He is remorseful but still demonstrates limited insight into his motivation for the assault. It is essential that A.S.(1)’s sentence provide proportionate accountability while ensuring that his rehabilitation and reintegration are promoted by facilitating his progress to university.

A sentence with some length that still enables him to attend school while taking advantage of the support of the criminal justice system will serve both of those goals. [ 102 ] Holding A.S.(2) accountable requires that I take into account his role in initiating the physical phase of the confrontation and ultimately engaging both A.K. and N.K. In my view, a non-custodial sentence simply cannot hold him accountable for his pivotal role in these extremely grave offences. Further, A.S.(2) was on a release for an assault at the time that he participated in this brutal attack.

All of the information that I have been given about A.S.(2) indicates that, while rehabilitation and reintegration are within his reach, their attainment depends on whether he is willing to dedicate himself to changing his direction and taking advantage of a structured, supportive network of resources.

The sentence that I am imposing is intended to provide a meaningful consequence in keeping with A.S. (2)’s role in the assault and his specific rehabilitative needs. [ 103 ] Similarly, P.R. requires a sentence that ensures that he truly appreciates and acknowledges the harm that he has caused and provides a meaningful consequence for his participation in these serious offences. He has demonstrated repeatedly that, if he finds the motivation and has the necessary support, he is capable of true success and a crime-free lifestyle.

The sentence that I am imposing should provide him with proportionate accountability while at the same time supporting him as he makes the transition to adulthood and, hopefully, maximizes the genuine potential that he has to go on in school and become a contributing member of the community. Conclusion regarding application of sentencing principles in this case [ 104 ] For all of the above reasons, I have determined that each of these young persons requires a custodial sentence followed by a significant period of probation in order to be held accountable within the meaning of s. 38(1) of the YCJA .

Custody is the least restrictive sentence that can accomplish all of the sentencing objectives of the YCJA. On the other hand, the length of the custodial portion of the sentence must be tempered to reflect the progress that all of these young persons have made and to allow for a substantial period of probation to support their rehabilitation and reintegration.

SENTENCE Z.N. [ 105 ] For Z.N. the appropriate sentence would be close to the maximum three-year custody and supervision sentence pursuant to s. 42(2)(n). [22] The practical reality, however, is that Z.N. has already spent an actual 14 months and 11 days in secure, pre-sentence custody. In that time, he has made impressive progress and taken advantage of the programming and resources available to him.

I concur with counsel that Z.N. should be credited at a rate of 1.5:1 for that pre-sentence time, which means that he has already served the equivalent of 21 months and 17 days. [23] In keeping with the principle of totality and the objectives of youth sentencing as they apply specifically to Z.N., I sentence him to an additional 21 days of open custody and supervision to be followed by 14 months’ probation. This sentence is equivalent to slightly less than the maximum length and allows for an appropriate balance between custody and supervision within the community.

A.S.(1), A.S.(2) and P.R. [ 106 ] Ultimately, the principle of parity along with close scrutiny of their personal circumstances and individual participation in the assaults mandate equal sentences for A.S.(1), A.S.(2) and P.R.

In order to accomplish all of the objectives of the YCJA , they will each be sentenced to the equivalent of 186 days of custody and supervision [24] plus 16 months’ probation. [25] In order to reflect the pre- sentence custody served by A.S.(2) and P.R., the actual sentences are as follows: • A.S.(1) – 186 days months open custody and supervision plus 16 months probation; • A.S.(2) – 168 days custody and supervision plus 16 months probation (with 2 ½ weeks pre-sentence custody to be noted on the information);

• P.R. – 153 days custody and supervision plus 16 months’ probation concurrent on both counts (with 22 days pre-sentence custody to be noted on the information)

Section 88 ( YCJA ) and

section 24.1(4) ( YOA ) - Open vs. Closed Custody [ 107 ] Pursuant to s. 88 of the YCJA , Ontario has ordered that the level of custody for custodial sentences continue to be determined by the youth justice court as it was under the Young Offenders Act [26] (“YOA”). The factors to be considered are imported from s. 24 . (1)(4) of the YOA, [27] which prescribes as follows: (

a) That a young person should be placed in a level of custody involving the least degree of containment and restraint, having regard to (

i) The seriousness of the offence in respect of which the young person was committed to custody and the circumstances in which that offence was committed, (ii) the needs and circumstances of the young person including proximity to family, school, employment and support services, (iii) the safety of other young persons in custody, and (iv) the interests of society; (

b) that the level of custody should allow for the best possible match of programs to the young person’s needs and behaviour, having regard to the findings of any assessment in respect of the young person; (

c) the likelihood of escape if the young person is placed in open custody; and (

d) the recommendations, if any, of the youth court or the provincial director, as the case may be. [ 108 ] I have given anxious consideration to the criteria enumerated in s. 24.1 of the YOA and have concluded that open custody is the appropriate venue for the custodial portion of all of these young persons’ sentences. All four young persons have either no or minimal criminal records. The unanimous conclusion in the s. 34 reports and pre-sentence reports for all of them is that the deterioration in their conduct was at least in part precipitated by negative peer associations.

Incarcerating A.S.(1), A.S.(2) and P.R. now in secure custody with other young offenders risks exacerbating the damage already done by the influence of anti-social connections. Although the offences that they committed were serious, given the specific nature of their participation and party liability, secure custody is not essential to hold them accountable. To the contrary, all three of them require support and structure in a community setting in order to establish pro-social pursuits and peer connections if they are to derive the maximum rehabilitative benefit from their sentences.

Z.N. has benefited extensively from his already lengthy tenure in secure custody. His task now, and the objective that will most effectively protect the public, is to maintain his progress and transformation as he returns to the community. Open custody will, hopefully, begin the process of building the necessary bridge to a productive, fulfilling, law-abiding future. Ancillary Orders [ 109 ] As agreed by all parties, there will be a DNA order for each young person as well as a five-year s. 51(1) weapons prohibition order. Released: December 9, 2013 Signed: “Justice M. H. Bloomenfeld”