R. v. B.-S.(T.), 2014 ONCJ 253

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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. B.-S.(T.) , 2014 ONCJ 253 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 — T. B.-S., a young person Before Justice D.P. Cole Heard on January 20, March 4, April 17, May 16, 2014 Reasons for Judgment released on May 20, 2014 T. M. Kranjc; T. Lissaman ................................................................... counsel for the Crown N. Charitsis; G. Leslie ....................................................................... counsel for the accused

COLE J.: REASONS FOR SENTENCE Overview : [ 1 ] On February 11, 2013 the [then 17 year-old] young person was in the bedroom of the 15 year-old deceased, in company with two of their mutual friends. The young person was showing them a loaded handgun he had recently found (or had been given by someone else). While he was handling the firearm, it discharged, striking the victim in the abdomen, causing a fatal injury.

The young person was arrested later that evening, and was charged with manslaughter. [ 2 ] After numerous judicial pre-trials held before me, Crown counsel indicated that if the young person were to be found guilty, it would not make an application for an order that he be “liable to an adult sentence” ( Youth Criminal Justice Act ( YCJA ) s. 64(1) ); consequently, if the young person were to enter a plea of guilty to the charge before me, I would then be requested to impose a “youth sentence”. [ 3 ] After counsel took instructions (and consulted with the young person’s family), the young person entered a plea of guilty to the charge of manslaughter on January 20, 2014.

I then remanded the young person pending the production of a Pre-Sentence Report (PSR) and a psychiatric/psychological assessment ( YCJA s. 34). Those reports were produced, following which counsel jointly recommended that the case be further remanded so that an Intensive Rehabilitative Custody and Supervision (IRCS) Suitability Assessment might be prepared ( YCJA s.42(2)(

r) and (7) ) by the youth probation officer who had prepared the PSR.

That report was produced, and the Provincial Director’s consent (a pre-condition to activating the young person’s entry into the program ( YCJA s.42(7)(d)), was obtained, as was the young person’s written agreement to enter the program. [ 4 ] It now falls to me to determine: -Whether an ICRS order should be made; -The length of the overall youth sentence to be imposed; -The proportion of that sentence to be served as a “continuous period of intensive rehabilitative custody” ( YCJA s.42(2)(r)); -Whether some or all of that custodial portion should be served in secure custody ( YCJA s.85); -Whether some or all of the custodial portion should be served in open custody; -What portion of the sentence should be served in the community subject to “conditional supervision” ( YCJA s.42(2)(r)(i)(B); -Whether a probation order should be made (and, if so, what optional conditions of probation should be imposed); and -Such ancillary orders as may be appropriate.

Agreed Statement of Facts [1] : [ 5 ] The deceased is a young person identified as S.A.R. He was 15 years of age at the time of his death. The deceased resided [in an apartment] in the City of Toronto. This complex is located in the northwest part of the city. [The] family’s dwelling is a two storey unit where three bedrooms are situated on the main level. The living area with the kitchen and family room are on the second level. The deceased occupied the middle bedroom on the main level. [ 6 ] The deceased resided with his mother, his step-father, and his two older sisters, 21 year old S. R. and 16 year old Sh.

R. His sister S.R. is the mother of a toddler and they occupied a bedroom next to S.A.R.’s bedroom. A set of stairs near S.A.R.’s bedroom led to the upper level where his mother and step-father spent most of their time. [ 7 ] On Monday, February 11 th , 2013 at approximately 10:00 p.m. S.A.R. was at home. At this time, he was in the company of the following friends: then 18 year old T.M., then 16 year old O.K. and the young person before the Court, then 17 year old T.B.-S. At some point Mr.

B.-S. produced or was given a 9mm pistol and, while handling the firearm, it was discharged striking the deceased in the abdomen causing a fatal injury. [ 8 ] The deceased’s sister Sh.R. and his mother called 911 at approximately 10:32 p.m. requesting emergency medical services. The callers reported that they were upstairs when they heard a shot fired and then heard some people leaving the apartment. It was also reported that they did not know who was in the apartment with the deceased. [ 9 ] [The deceased] was transported to Hospital via an emergency run.

At approximately 12:00 a.m. on February 12 th, 2013, he was pronounced deceased. [ 10 ] T.M., O.K. and the young person T. B.-S. fled the dwelling. Two uniformed police officers from the Toronto Police Service, that is Police Constables Gill and Keown, were in close proximity when the emergency call was made and arrived at the building within moments of the call. Upon entering the stairwell of the east entrance of [the apartment building], the two police officers heard male

voices above them yelling “go, go, go” and multiple sets of footsteps. The police officers came across T.M., O.K. and T. B.-S. as the three males were running down the stairs and attempting to leave the building. The police officers engaged the three males in conversation at which time the males informed the police officers that they had been on the roof of the building smoking marijuana. Police officers attended the roof area and observed that there was snow on the roof that did not appear to be disturbed.

The three males were arrested and taken to [the local police] Division. [ 11 ] Tapelift samples were taken from the hands of the three males…for gunshot residue and submitted for testing. Six gunshot particles were identified on the tapelift samples from the hands of T. B.-S. One gunshot particle was found on the tapelift samples from the hands of O.K. and two gunshot particles were identified on the tapelift samples from T.M.’s sweatshirt. [ 12 ] A bloodstain was located on the outside lower left sleeve of a black “Nike” hoodie belonging to T. B.-S. This item was submitted for DNA testing.

The deceased S.A.R. could not be excluded as the source of that bloodstain. The probability that a randomly selected individual unrelated to S.A.R. would coincidentally share the observed DNA profile is estimated to be 1 in 1.1 quadrillion. [ 13 ] The family members of the deceased were interviewed and none of them were able to say who was in the deceased’s bedroom at the time of the incident. [ 14 ] On February 12 th , 2013 during the evening hours, an undercover police officer was inserted into a cell between T. B.-S. and O.K. at [the police] Division. Mr.

B.-S. was heard to admit that while handling a firearm, he shot the deceased. Mr. B.-S. also stated that several people were in the room when the shooting occurred including the deceased’s sister Sh.R. He also stated that he had a P90 Ruger firearm. Mr. B.-S. indicated in the presence of the undercover police officer that he wanted to get rid of this firearm and if released from custody, he would move it. [ 15 ] As a result, the young person T. B.-S. was charged on February 13 th , 2013 at 12:15 a.m. with manslaughter. He was provided with his rights to counsel and cautioned again.

He was held for a show cause hearing. [ 16 ] A search warrant was executed at the deceased’s dwelling by members of the Toronto Police Service. A 45 calibre handgun, identified as a Taurus PT 2477 PRO LS DS Cal.45, loaded with at least six rounds in the magazine was located in, and seized from the deceased’s bedroom. This was not the firearm used to shoot the deceased.

In addition, a quantity of marijuana and crack cocaine was located and seized from two bedrooms, including the deceased’s bedroom. [ 17 ] An autopsy was conducted on the deceased and the cause of death was determined to be a gunshot wound to the abdomen. The pathologist determined that the firearm was at close range and within centimetres of the deceased when it was fired. The Background and Present Circumstances of the Young Person : [ 18 ] The information contained in this

section is primarily derived from the PSR (Exhibit 1), the s.34 Report (Exhibit 2), the IRCS Suitability Assessment (Exhibit 3), and from the submissions of counsel. [ 19 ] T. is the only child of the union of his parents, whose relationship broke up before he was born. Though he occasionally speaks with his father, he does not have a close relationship with him; because of the infrequency of contact, both T. and his mother suggested to the writer of the PSR that there was no need to interview Mr.

B. for purposes of the report. (Having said this, I should also recite that I was told that the offender’s father was present in court during sentencing submissions). [ 20 ] T. has a 22 year-old half-sister, K., with whom he is very close. Prior to the offence, he was living with her and with his mother V., who works full-time as a receptionist at a retirement home. Since being charged, his bail conditions require him to live at another address with his sureties, who are his maternal grandmother and maternal uncle.

His mother both visits and frequently stays over at her mother’s home so she can interact with her son. [ 21 ] Both the young person and his mother said that he had a happy childhood, spending vacation time with his extended family. On this point, I should add that various family members – in addition to his mother and sureties – have been present on all court appearances. During sentencing submissions approximately 12 members of the offender’s extended family came to court to support him. [21] The young person is reported to have been an excellent athlete during his elementary school years.

He told the writer of the PSR that he tried out for the school basketball team in Grade 9, but stopped playing organized basketball once he failed to make the team. [ 22 ] Though T. was initially enrolled in a French Immersion class when he began school, it was soon realized that he might perform better in “mainstream classes”. However, by the time he reached Grade 2 his Ontario School Record (OSR) discloses that he was formally diagnosed by a school psychologist as having a “Specific Learning Disability. ADHD – Combined Inattentive and Hyperactive- Impulsive Type”.

In order to accommodate his learning needs an Individual Education Plan (IEP) was developed. While his mother naturally wanted her son to remain in “mainstream classes”, school officials decided that he would do better in smaller “behaviour program(s)”, which he seems to have started in Grade 3. [2] [ 23 ] T.’s enrolment in “behaviour programs” at school ceased when his mother decided to move the family to Hamilton when he was in Grade 7 or 8. [3] He attended regular classes while in school in Hamilton. Midway through his Grade 9 year his mother decided, for economic reasons, to return to Toronto.

Unfortunately, for reasons not specified in the various reports, T. appears to have had difficulty registering for school in Toronto; as a result he “fell behind” and was largely absent from school during the second semester of his Grade 9 year. [ 24 ] The s.34 Report details the offender’s recounting of the kinds of illegal activities he engaged in during this period of time: “In Grade 9, T. became a member of the G. Boys (which is a neighbourhood affiliated gang).

He says that [the deceased and the other two young men who were present at the deceased’s home the night he was killed] were also members of this gang. He denied any initiation rituals, and said that he was welcomed into the gang because his father was a member and he was “from the neighbourhood”.

He says that his gang activity involved selling crack cocaine, allowing him to make approximately $500/day. He spent this money on clothes and renting cars with other gang members. T. was arrested in Grade 9 for possession of crack cocaine, but was released on bail with conditions related to having a curfew. He breached this curfew but was again released on bail.” (p.4) [ 25 ] The youth’s criminal record (Exhibit 4) reflects that on August 31, 2011 he was sentenced to various periods of probation for two charges of possession of cocaine (presumably crack) and one charge of being in breach of his bail conditions.

Though the PSR says that he was not very committed to taking counselling for “anger, peer pressure and skill development”, he did complete 30 hours of court- ordered community service, and the supervisor of this work reported that “T. was a pleasure to work with and that he would be happy to have T. continue on with him”. The various reports note that he completed these probationary periods in August 2012 without incurring any new charges.

Thus, importantly, he was not subject to any court orders (bail or probation) on February 11, 2013, the date of the offence. [ 26 ] According to what the young person told the writer of the PSR, once he began to get into trouble with the law, he realized he needed to make changes to his life, so he arranged to return to school, obtained a part-time job and, more importantly, stopped selling drugs. His mother advised that because she monitors her son closely “she would have known if he was [involved in drugs]”.

I presume this reference in the PSR is to mother being certain that her son was not trafficking in drugs. That is fine as far as it goes, but both the PSR and the s.34 Report describe that neither mother nor son seemed particularly concerned about his recreational use of marijuana. One hopes that this has changed since he was charged with this most serious offence. [ 27 ] The young person started at a Toronto secondary school in the fall of 2011. Unfortunately, he does not appear to have been particularly successful in either completing his outstanding Grade 9 credits or in advancing through Grade 10.

One of the comments made in his report card was that he needed to “improve his attendance”. His mother attributed “his poor attendance [being] due to the far distance of the school from his home”. On the occasions when he did attend school, it was noted in his report card that he needed “to concentrate and focus on lessons…submit assignments and improve his behaviour in the classroom”. His overall average was 45%. [ 28 ] Recognizing that it would be better if he were to go to a high school closer to his home, T. switched schools in the fall of 2012.

Though he was formally enrolled in Grade 11, he needed to complete Grade 10 as well to complete his Grade 11 credits. He was in the second semester of his Grade 11 year when he was arrested for this offence in February 2013. Since his release on bail, educational authorities and his family have arranged for him to be “home schooled”, which entails him completing school assignments at home and sending them to his school to be graded. He reported to the writers of the s.34 report that “he is now technically in Grade 12, but is [still] completing work at the Grade 10 and Grade 11 level.

In regards to the current home schooling, T. says that he struggles academically due to problems with concentration [4] and challenges resulting from less academic support”. As of February 2014 he has apparently completed only 1 academic credit since the commencement of home schooling; overall he has completed only 9 out of the 30 credits he will need before he can obtain his high school diploma. Drs.

Harrigan and Beitchman sagely comment in the s.34 report: “Certainly the number of schools that T. has attended [8 different schools between Grades 1-11], in combination with seemingly premature promotion to higher grades, could have created difficulty for T. to succeed academically” (p.3). [ 29 ] In this regard, I note that the proposed IRCS Treatment and Rehabilitation Plan proposes a substantial investment in educational assessment and upgrading as essential to reduce T.’s risk of recidivism, beginning with a comprehensive Psycho Educational Assessment “to clarify whether T. has a learning disability”, as well as a vocational assessment to assist him to select appropriate employment.

I am also pleased to note that T. has told all of the various assessors who have provided reports for the court that he is motivated to pursue education, with the ultimate goal of having a career in architecture or design. [ 30 ] Because the youth candidly told the writers of the s.34 report that he has some history of daily marijuana use, alcohol consumption at parties once or twice a month, and because he admitted to having “smoked 7-8 joints with his friends on the day the offence occurred”, Drs.

Harrigan and Beitchman recommend that “[i]t would be important for T. to gain greater insight into the negative repercussions of marijuana and alcohol abuse” (p.16). [5] To further this goal, recommendations are made in the s.34 assessment that the young person should enrol in one of two different programs at the Centre for Addiction and Mental Health, either of which focuses on “reducing harm, moving towards recovery, and making the best choices for themselves and their family”.

This is of particular concern to the mental health professionals because T. reports – and the various psychological measures administered confirm – that he is presently manifesting clinically significant symptoms of anxiety and depression since the offence. Indeed, it seems entirely possible that matters have deteriorated to the point where he will require medication to provide him with “first line treatment for both mood and anxiety disorders”. [ 31 ] It is clear from all that I have read and heard that T. feels much guilt and genuine remorse for killing his good friend.

Indeed, he told the writer of the PSR that “his plan is to do what he can to support the victim’s child, who will be growing up without a father” (p.9). Given that the victim’s family reported to the writer that they do not wish to have communication with the offender, I do not know if this is at all feasible or realistic, but the sentiment expressed is admirable. [ 32 ] I should also say that Crown counsel very fairly accepted that the offender’s “feelings of regret, guilt and sadness” seem entirely genuine and not at all contrived.

No doubt this is one of the factors that contributed to the Crown’s carefully thought out decision not to seek to have the young person sentenced as an adult offender. [ 33 ] In addition to him not being able to attend school on a daily basis, it is troubling to me and to the writers of the various reports that T. seems to have become quite isolated since the offence. Though neither his bail conditions nor his sureties’ house rules prevent him from having friends visit him, he reported to the writer of the PSR that he “does not wish to”.

Further, it appears that his close relationship with G., his romantic partner of three years, came to an end in August 2013. Though “[h]is ex-girlfriend’s family treated him as if he was part of their family…by having him over for family dinners, taking him to church regularly and mentoring him”, apparently her mother disapproved of the continuation of the relationship because of the offence, and has insisted that her daughter have nothing more to do with him. Finally, he told the writer of the s. 34 report that “his friends…were ‘mad at me’ because of [the victim’s] death and blamed him for what happened” (p.5).

Commenting on this to the writer of the PSR T.’s mother said that “[t]his was a difficult time for T. and he felt abandoned by those closest to him” (p.4). (I also note that his bail conditions require him to stay away

from his closest friends, presumably because had this matter gone to trial, they would have been Crown witnesses). [ 34 ] Both the probation officer who wrote the PSR and the authors of the s.34 report commented extensively on T.’s present attitude to the offence and to himself. The s.34 report contains the following: “He says that he blames himself for the offense, and while he can objectively recognize that it was an accident, he believes that he deserves to be punished for it. He says that he feels “sad”, “low” and “depressed” every day, and believes that his life is not worth living.

He denied having any active suicidal thoughts, intent or plan, but expressed remorse and guilt over the death of his friend. He says that he’s “stopped caring” about school, work or relationships. His day consists of completing chores at his grandmother’s house. He says that he is constantly thinking of the offense, and while he tries to distract himself by listening to music or sketching, this is rarely effective as his concentration is so poor. He reports having a very poor appetite, and says that he has lost twenty pounds over the last eight months.

His sleep is erratic, as he often has nightmares about what happened to [the victim]. In these nightmares, [the victim] is present and knows that he is deceased. He says that [the victim] doesn’t appear to be mad at him, but these nightmares often cause him to wake up in sweats. He says that he might get 1-2 hours of sleep per night as a result of this, and will try to nap during the day. He is also quite hypervigilant, and startles easily with loud noises. He denied any symptoms related to an anxiety disorder.

He also denied any symptoms of mania, or psychotic symptoms.” [ 35 ] Later in the report the writers are prepared to make the following diagnosis: DIAGNOSIS • Major Depressive Episode, Moderate Severity • Post-Traumatic Stress Disorder • Conduct Disorder • Attention Deficit Hyperactivity Disorder (by history) • Rule out Learning Disability “Both his self-report, and results from the psychological testing, indicates that T. is suffering from a Major Depressive Episode. He endorses depressed mood and loss of interest in life and activities for the last eight months.

He suffers from feelings of guilt in relation to [the victim’s] death, and has difficulty thinking about anything else. His sleep patterns are erratic, and according to his mother, he has lost a significant amount of weight due to poor appetite. It also appears that T. is suffering from symptoms of Post-Traumatic Stress Disorder. He has nightmares in which [the victim] is present and is aware that he is deceased. He actively avoids thinking about the event, is hypervigilant, and admits to having an exaggerated startle response. By T’s history, it is also likely that he would meet criteria for Conduct Disorder.

He has admitted to being verbally aggressive towards others, engaging in physical fights and truancy from school during his adolescence. In regard to a diagnosis of ADHD, it is unclear whether he meets criteria for this diagnosis at this time. He does complain of poor concentration and distractibility, but it is difficult to know whether these symptoms are related to his depression and anxiety, or whether this is a separate diagnosis. More information would be needed in order to clarify this. He has a history of poor school performance and has had an IEP (Individual Education Plan).

Given his history of academic struggles, the possibility of a learning disability should be ruled out.” [ 36 ] Consistent with T.’s self-report, his mother reports that “[s]ince his arrest…T. has ‘no life in him anymore’. She said that she hasn’t seen him smile or laugh in one year, and that he ‘has no pride in himself’”. All report that he spends much time alone in his room, “sketching and listening to music”.

Mother’s observations of her son’s mental state seem to be reflected in some of the psychological assessment instruments she and her son completed. [ 37 ] It is obvious from all of this that the young person urgently requires immediate and long-term counselling and support. Following the offence he briefly attended some counselling sessions, but told the writer of the PSR that he did not find them helpful, in part because he followed defence counsel’s advice that he not discuss his outstanding charges. As I read the various reports, he has essentially been “on hold” pending the disposition of this case.

While the actual treatment modalities – chemical or otherwise - are something that T. needs to discuss with the clinicians who will interact with him once sentence is imposed, what this strongly suggests to me is that this case should be dealt with by the court as rapidly as feasible, which is why I am rendering judgment as quickly as possible following sentencing submissions. [ 38 ] Once again, I am pleased to report that the IRCS Suitability Assessment has carefully and sensibly identified several treatment issues deriving from the themes I have been discussing.

In addition to identifying potential learning disabilities through a Psycho Educational Assessment (discussed above), the main ones are: substance abuse, relationship skills, stress/anxiety, and leisure skill development, combined with individual therapy “to deal with the Post Traumatic Stress Disorder and depression he is experiencing.

Additionally, he will require further therapy to assist him with positive coping strategies and the feelings related to the offence and the loss of his friend” (p.7). [ 39 ] Before I move to consider the legal framework and the reasoning behind the various components of the sentence I have decided to impose, I should indicate that, despite the various problem areas identified, the clinicians do not consider that T. is presently at high risk to reoffend.

They write: “General Risk Assessment: The Youth Level of Service/Case Management Inventory (YLS/CMI): The YLS/CMI is an empirically validated criminogenic risk/needs measure that provides an estimate of a youth’s likelihood for general reoffending . This measure is an objectively scored scale that allows for the assessment of a variety of risk factors and criminogenic needs that are related to delinquent behaviour. It has been shown to predict general recidivism in both males and females and there is also preliminary evidence that it is a

valid predictor of violent behaviour among juvenile offenders. The YLS/CMI is in part a dynamic measure of risk, meaning that some of the risk/needs areas identified in this tool can be remediated. There is empirical support that services targeted at criminogenic needs and appropriately delivered can be effective in reducingrecidivism in young offenders. Because of the dynamic nature of the YLS/CMI, the estimated level of risk in a particular youth is likelyto change over time and therefore individuals should be reassessed whenever areas of criminogenic risk/need have been altered. The YLS/CMI was used as a

summary measure of T’s risk to reoffend across all types of offenses. T. received a score of 18 out of 42 onthis measure. Based on the

summary information provided by the YLS/CMI, T. was deemed to be at moderate (scores ranging from 10-21 for a community male) for general reoffending at the time of this assessment.

The areas identified as criminogenic risk/needsincluded Prior and Current Offenses/Dispositions (Prior probation), Family Circumstances/Parenting (Inadequate supervision, Poorrelations father/youth), Education/Employment (Disruptive classroom behaviour, Disruptive behaviour on school property, Lowachievement, Problems with teachers, Truancy), Peer Relations (Some positive friends), Substance Abuse (Occasional drug use, Chronicdrug use, Chronic alcohol use), Leisure/Recreation (Limited organized activities, Could make better use of time), and include not havingan antisocial/procriminal attitude, adhering to the conditions of his bail, not being defiant of authority, not having a callous orunremorseful nature, not being rejecting of help, and not having inadequate feelings of guilt.” [40] This is supplemented in part by the views of the experienced youth probation officer who wrote the PSR, who writes in herAssessment and Recommendations: “T. has a number of strengths including his maturity, willingness to make amends and acceptance of responsibility.

Family is aprotective factor for this young man and he shares a close supportive relationship with his mother. Should the court deem communitysupervision as part of any sentence, conditions addressing counselling/treatment and education/employment are respectfullyrecommended. These conditions would serve to promote the rehabilitative needs of the youth as well as address public safety concerns. Peer associations appear to be an area of concern for this youth, as he was in the company of his peers on the night of the offence wherea firearm was also present.

This is an area of concern as companion choices are identified as a strong predictor of future behaviour.” [41] Though the IRCS Suitability Assessment was principally written by the same probation officer who wrote the PSR, I also note thatthe YCJA requires that the Provincial Director give consent before an IRCS Plan may be proposed to the court.

While part of the reasonfor this requirement is no doubt to ensure that scarce treatment resources are properly and prudently allocated, it seems clear that anothermajor reason is that careful consideration should be made by the responsible officials as to how best to use those resources to reduce thepossibility of recidivism. Having read through that Assessment several times, I am impressed how carefully the treatment proposalsappear to have been thought out. I am equally certain that if Ministry officials reasonably believed that T. poses a danger to the public,no such proposal would have been forthcoming.

Legal Analysis: Whether an IRCS Order is appropriate: [42] Given the background I have described, and given that the Provincial Director has consented, I agree with the submission of bothcounsel that an IRCS order is appropriate.

The Overall Length of the Youth Sentence to be Imposed: [43] Because Crown counsel decided not to seek to have the offender sentenced as an adult, all are agreed that the starting point is thatmaximum sentence available is three years from the date sentence is imposed – 1096 days. [44] Having said this, following various appellate precedents in Ontario and other provinces, there has developed a usual – though by nomeans obligatory – practice of deducting from the total length of the sentence available to be imposed a number of days equal to thenumber of days spent in pre-sentence custody, plus a further allowance to reflect the presumed rigours of detention before sentencing(usually at the rate of 1.5:1). [45] Section 38(3)(

d) of the YCJA specifies that, “In determining a youth sentence, the youth justice court shall take into account…thetime spent in detention as a result of the offence”. In response to an argument that this only obligates a sentencing judge to consider theissue, the Ontario Court of Appeal has ruled in R. v. T.B. (2006) (ON CA), 206 C.C.C. (3d) 405 that “s.38(3) doesrequire a trial judge to deduct time served from the sentence of a young person” (paras. 19, 25; emphasis added. See similarly R. v. D.S.2008 ONCA 740 , [2008] O.J. No. 4231).

I interpret this as meaning that I am required to reduce the potential maximumsentence of three years at least by the number of actual days spent in pre-sentence custody, which in this case amounts to 14 days beforethe young person was admitted to bail (February 12-25, 2013). [46] Case law has also discussed whether the further “normal” allowance of crediting a young person with 1.5 days for every day spentin pre-sentence detention requires me to make a further deduction of 7 days.

On this issue, the Ontario Court of Appeal has been clearthat “[whether] such a credit will be given in a particular case will depend on more than the application of an arithmetical formula….[W]hile a 1.5 credit may be the starting point for crediting pre-sentence custody, other considerations may affect the appropriate credit “ (T.B. at para. 40). In R. v.

K. (M.) (1996) (ON CA), 107 C.C.C. (3d) 149 the Ontario Court of Appeal held that it isopen to a youth court judge to decline to give additional credit where to do so would be to “virtually exhaust the custodial term available”(quoted in T.B., supra, para. 35). In my judgment, this is not such a case; even making the maximum allowance for pre-sentence custody– 14 + 7 days - I have come to the conclusion that there is ample “room” to impose additional custody.

[47] Defence counsel also proposed that I should make a further deduction for time spent on bail subject to what he argued wererestrictive release conditions. This issue has been extensively considered by the Court of Appeal in several cases in recent years – apartial list includes: R. v. Downes (2006) (ON CA), 205 C.C.C. (3d) 488; R. v. Panday (2007) 2007 ONCA 598, 226 C.C.C. (3d) 349; R. v. Ijam 2007 ONCA 597; R. v. Lindsay 2009 ONCA 532; R. v. M.G. 2007 ONCA 837; R. v. Junkert2010 ONCA 549. As continually noted by the court in these cases, an offender released on bail is not in custody.

It therefore followsthat if any credit is to be given, it must in some way reflect that the conditions imposed on the offender’s bail release are restrictive to thepoint where they can be rationally shown to affect the offender’s liberty in very significant ways. I note from his recognizance of bailthat he has been required to be under “House Arrest: Not to be away from your place of residence except while in the company of one ofyour sureties”. By the time sentence is pronounced he will have been subject to this order for some 15 months (February 25, 2013 – May20, 2014).

While no “Downes hearing” was invoked to bring supportive evidence to demonstrate that these bail conditions wereparticularly onerous, defence counsel proposed that I make an allowance of 5 months reduction of sentence to reflect the intrusiveness ofthe “house arrest”. [48] Crown counsel replied to this by drawing attention to the decision made by J.P. Hundal to grant the young person bail in this case(R. v. T.B.–S. [2013] O.J. No. 945).

She pointed out (at p.4) that it was the sureties’ proposal that a release subject to such a rigorous“house arrest” be ordered; thus, it was not as if these were conditions imposed by the bail justice in excess of what had been proposed bythe sureties. While it is no doubt true that not allowing the young person to go out of the sureties’ residence accompanied only by hismother or sister further restricted his movements, Crown counsel makes the point that the principal surety, the offender’s maternalgrandmother, must have had good reasons for proposing this restriction.

Crown counsel thus took the view that either no deductionshould be made for this period of time, or that any deduction made should be very modest. [49] Having considered this, in the absence of some evidence demonstrating that the period of time spent on bail subject to house arrestwas particularly onerous, I agree with the Crown and am only prepared to make a modest allowance for this period of time.

Havingregard to what the Court of Appeal has cautioned about the need to link “house arrest” to custody, I consider that an allowance of 60 dayswill adequately reflect the quasi-custodial nature of the requirement that the young person remain at home at all times unlessaccompanied by one of his sureties. [50] I am thus prepared to reduce the maximum potential sentence by a total of 81 days.

I now turn to the question of the overall lengthof the youth sentence, including both custody and conditional supervision. [51] Defence counsel took the position that a sentence in the 2 year range, less deductions for time spent in custody pending thegranting of bail and the time spent on house arrest, should lead me to impose an overall sentence of approximately 18 months (dependingon how I viewed the proposed deductions).

He suggested that the imposition of a lengthier sentence would not be consistent with theprinciples of sentencing in the Declaration of Principles and ss. 3 and 38 of the YCJA. [52] Crown counsel vigorously disagreed with this position. She suggested that the maximum 3 year term should be imposed, subjectonly to a small deduction for the relatively brief period of time spent in custody pending release on bail, and perhaps a modest deductionfor time spent on bail subject to “house arrest”.

She pointed to numerous aggravating factors about the offence, as well as to the youngperson’s background and identified treatment needs to demonstrate that both “proportionate accountability” and “rehabilitation” requirethat I impose close to the maximum available term. [53] I find myself entirely in agreement with Crown counsel on this issue. In my judgment, the seriousness of the offence and thecircumstances of its commission, combined with the offender’s criminal history and antisocial antecedents, suggest that his “moralblameworthiness” was high – despite his obvious remorse for what he has done.

Furthermore, when I look to his treatment needsidentified in all of the reports prepared for this hearing, it is obvious that the various academic and remedial rehabilitative steps which heneeds to take will require several years of sustained attention and monitoring, and much hard work on his part. The Proportion of the Sentence to be Served in Custody: [54] Section 42(2)(r)1(

B) of the YCJA directs that IRCS sentences are to be served in two parts. Initially “the young person [is to] becommitted into a continuous period of intensive rehabilitative custody for the first portion of the sentence”. Thus, there must be someperiod of custody imposed on the young person. However, unlike the more usual “custody and supervision” sentences imposed unders.42(2)(

n) of the YCJA, I note that Parliament has deliberately chosen not to specify what portion of the sentence imposed must be servedin custody where, as here, the offence is deemed to be one which attracts a “custody and conditional supervision” sentence. [55] Though the fact pattern is obviously different (and the statutory structure has changed slightly) the decision of the Supreme Courtof Canada in R .v. B.W.P. 2006 SCC 27 , [2006] 1 S.C.R. 941 is instructive. As here, the young person had entered a plea ofguilty to a charge of manslaughter.

Because he had spent some months in pre-sentence custody, and because the youth court judgeconsidered that his rehabilitative prospects were good, the young person was sentenced to a custodial term of one day in open custody(followed by fifteen months of conditional supervision and one year probation).

Both as a matter of statutory construction and as amatter of general principle the Supreme Court of Canada approved of the youth court judge’s exercise of discretion to impose a minimalcustodial term (paras. 42-47). [56] I thus conclude that while the YCJA requires that I impose some custody as part of an IRCS sentence, I have a very broaddiscretion in determining the length of that custodial term.

It could be as little as one day, or as much as the total length of the sentenceless one day. [57] Though counsel disagreed as to the overall length of sentence, there was little disagreement about the length of the custodial periodI should impose. Crown counsel proposed that 12 months would be adequate, while defence counsel suggested a range of 9-12 months. With some relatively minor adjustment, as will be seen later in these reasons, I find myself generally in agreement with this suggestedrange. Whether Some or All of the Custodial Portion Should be Served in Secure Custody:

[58] Counsel were also in agreement that the custodial sentence should all be served in open custody. Given the rather uniquecircumstances of this case, and given the IRCS Assessment that the services necessary to assist in the young person’s rehabilitation canbe accessed either from secure custody or from open custody, I think this was a very sensible and restrained position, particularly on thepart of Crown counsel.

Nevertheless, because some might consider that placing an offender who has killed another directly into opencustody would be offensive, I think it is necessary for me to spend some time explaining why I fully agree with counsels’ carefullythought out position on this issue. [59] The Supreme Court of Canada’s approval of the youth court judge’s decision in R. v. B.W.P. to impose an open custody sentenceindicates that there is no statutory (or policy) requirement that secure custody be imposed within the context of the first “continuousperiod of intensive rehabilitative custody” of an IRCS sentence. [60]

Section 83 of the YCJA, read in conjunction with the Declaration of Principles contained in s.3 of the Act, sets out the generalpurpose and principles to be applied in determining the level of custody appropriate for a young person so sentenced. I note that s.83(2)(

a) indicates that one of the core principles to be applied is the principle of restraint i.e. “that the least restrictive measures…be used”wherever possible. [61] In R. v. M.A.J.; R. v. F.S. 2005 ONCJ 64; [2005] O.J. No. 829, I indicated that I read s. 85 of the YCJA as indicating that opencustody should be the “default position”, in the sense that unless one or more of the factors mentioned in s. 85(5)(a)-(

c) are present, theyoung person should normally be sent to open custody. I further indicated that it was – and is – my view that in a decent andcompassionate society, if a youth is to be sentenced to custody it should be as punishment rather than for additional punishment. I thusdeclined to send to secure custody two first-time offenders who had committed a series of violent convenience store robberies withweapons; instead I imposed lengthy periods of open custody. While commenting favourably on this judgment Profs.

Bala and Anand(Youth Criminal Justice Law (2d ed.) 2009, pp. 570-2) nevertheless noted – no doubt correctly - that many judges would not have foundit appropriate to impose open custody sentences for such serious offences. [62] Applying s. 85(5)(a)(

i) to the facts of the case at bar, while this is obviously by definition a very serious offence, I cannot say that“the circumstances in which the offence was committed” were among the most egregious. Unlike some of the cases referred to byCrown counsel, this is not a case where a charge of murder was reduced to manslaughter because of drunkenness or provocation. Indeed, recognizing that the killing of his good friend was

an act of negligence rather than arising from any intention to kill, the policevery properly decided to charge the young person with manslaughter ab initio. [63] When I next look to “the needs and circumstances of the young person, including proximity to family, school, employment andsupport services” (s.85(5)(a)(ii)) I note from the IRCS Assessment that while these various services can be made available in eithersecure or open custody, it should not be forgotten that if T. is ordered into secure custody for all or a portion of his custodial sentence, hewill no doubt start serving that sentence at the Roy McMurtry Youth Centre, located in Brampton.

If he receives an open custodysentence, the probation officer proposes that he be placed at one of two open custody facilities in Toronto operated by a social serviceagency that “specializes in supporting youth with mental health concerns”. This placement was deliberately chosen based on thespecialized service needs of the youth, the ability to facilitate the youth’s participation in treatment programs and services utilizingfacility staff and specialized community service providers, and the proximity of the placement to the youth’s home community” (p.9).

To my mind, the availability and quality of these various support services strongly militate in favour of a placement in open custody. [64] While unfortunately gangs seem to be part of any youth custodial landscape, there appears to be no evidence that T. has ever beeninvolved in violence to members of his own or rival gangs. Thus, I do not consider that I have anything before me that would lead to anyreasonable inference that he should be placed in secure custody to ensure “the safety of other young persons in custody” (s.85(5)(a)(iii)).

And if such concerns arise during the serving of sentence, the Provincial Director has the power under the YCJA to move expeditiouslyto protect other young persons in custody. [65] I must confess that I find it somewhat difficult to understand what is precisely meant by the words “the interests of society” ins.85(5)(a)(iv). I have not been able to find any YCJA jurisprudence interpreting the phrase. I have come across the decision of theOntario Court of Appeal in R. v. H. (S.R.); R. v.

R.C.M. (1990) (ON CA), 56 C.C.C. (3d) 46, a case decided whilethe Young Offenders Act was still in force.[6] The case involved a Crown appeal from the decision of a youth court judge committingthe two youths (one just under 17, the other just over 17) to a term of one month secure custody followed by 29 months of open custodyon a charge of manslaughter arising from “the brutal, unprovoked and senseless attack upon and killing of a 70 year-old man”.

Crowncounsel did not invite the appeal court to increase the length of the sentences; he rather focused the court’s attention on whether thelength of the period of secure custody should be increased. Because post-sentence reports indicated that, by the time the appeal washeard, the offenders were making good progress in the open custody facilities, the court declined to interfere with the sentences (exceptto correct one minor error made by the youth court judge). However, speaking for the court Galligan J.A. was clear that: “On its merits the appeal is a troubling one.

The disposition of one month secure custody followed by 29 months of open custody failedto reflect adequately the element of general deterrence and it failed completely to reflect society’s abhorrence of this brutal, unprovokedand senseless killing. Society is entitled to be protected from gratuitous violence. The perpetrators of it, whether young persons oradults, must be given exemplary sentences in order to bring home to everyone that such conduct will not be tolerated. For that reason,the dispositions imposed on these young offenders demonstrated an error in principle.

In order to act as a sufficient general deterrent andto reflect society’s abhorrence of this kind of violence, the offenders should have been committed to secure custody for all or most of theperiod custody imposed upon them” (C.C.C. p.51). [66] Of course the references in that judgment to general deterrence must now be considered to have been overtaken by the SupremeCourt of Canada’s decisions in R. v. B.W.P.; R. v.

B.V.N. (2006) 2006 SCC 27 , 209 C.C.C. (3d) 97, where the Court held thatParliament’s deliberate exclusion of references to general deterrence as an animating sentencing principle in the YCJA indicates thatjudges should not base youth sentences on such philosophies. [67] However, even if the references to general deterrence are excised, I believe that Galligan J.A.’s continual references to the need forsentences to reflect “society’s abhorrence for this kind of violence” would be an appropriate way to interpret “the interests of society” in

s.85. Having said this, I am firmly of the view that it would amount to an improper fettering of judicial discretion if every manslaughtersentence (with or without an IRCS order) were to start with a period of secure custody. I shall later review some of the case lawhelpfully prepared by Crown counsel; while most of the sentences contained in that book of authorities do indeed begin with an orderthat the young person serve some period of time in secure custody, some do not. Furthermore, it is obvious that what the court wasconsidering in R. v. H. (S.R.); R. v. R.C.M. was a case very close to murder.

Galligan J.A. writes: “The Respondents were originallycharged with murder. However, they were intoxicated at the time of the offence, raising a doubt about whether they had the requisiteintent to sustain a charge of murder. Therefore, their plea of guilty to the lesser included offence of manslaughter was accepted” (C.C.C.p.48). As I have already said, this is very different in the case at bar, where the police sensibly and properly charged this accused withmanslaughter based on the offender’s negligence or recklessness.

In other words, precisely because manslaughter may be committed inso many ways, I think it would be an error in principle to say that all manslaughter sentences should be required to begin with a period ofsecure custody. [68] To this I would add one other factor. In R. v. M.A.J.; R. v. F.S.

I went on to say that: “What I think I can say with some certainty is that time spent in secure custody is unlikely to do much to address these issues; while nodoubt officials administering secure custody youth institutions attempt to do their very best to insulate youth from the brutalizing effectsof lengthy confinement, no “Society of Captives” (to quote the title of one of the classic works of penal sociology) can do much to fosterpro-social attitudes such as those contemplated by this subsection.

In my judgment, while serving time in open custody is certainly noguarantee that an offender’s acceptance of responsibility and acknowledgement of harm will occur, there is considerably more likelihoodthat this may happen in the types of open custody environments to which these young persons will likely be sent.” (O.J. para. 63). [69] In all of the circumstances of this case, I believe these remarks are equally apt. [70] I further consider that the comments made in relation to s.85(5)(a)(ii) supra para. 63 equally apply to the “best possible match ofprograms” criteria mentioned in s.85(5)(b).

Having said this, I think it is instructive to compare the case at bar with one of themanslaughter sentencing cases referred to by Crown counsel. [71] In R. v. B.T. 2013 ONCA 21 , [2013] O.J. No. 176 Derrick Prov. Ct. J. considered the case of a manslaughter[7] of asenior citizen out for an evening stroll who was robbed and killed by a 17 year-old (18 by the time of sentencing).

The offender had noformal record at the time of the offence, but admitted to his parents and mental health professionals who had assessed him for sentencingpurposes that he had been extensively involved in various (and escalating) criminal activities – mostly thefts and drugs – for manymonths prior to the shooting (paras. 27-30). He was assessed by a very experienced youth forensic psychologist who considered that,absent “interventions in place to address risk factors [T.B.’s] overall risk for general criminal recidivism in the community…wasassessed as ‘moderate to high’” (para. 36).

However, he was “guardedly” optimistic about his prospects for rehabilitation if an IRCSorder were to be imposed. [72] Derrick J. first dealt with the differing positions of counsel. While both agreed that an IRCS order should be imposed, Crowncounsel argued that the needs of the young person were such that no credit should be allowed for 16 months spent in pre-sentencecustody, and that the maximum sentence of three years going forward should be imposed, comprised of two years in custody followed byone year of conditional supervision in the community.

Defence counsel proposed that the offender be given some credit for time spent inpre-sentence custody – presumably credit for one year – and that he should be sentenced to one further year of custody, followed by oneyear of conditional supervision in the community.

After examining all of the evidence regarding the young person’s treatment needs,Derrick J. held that “three years [is] the necessary amount of time to achieve the desired ends of the IRCS treatment plan” (para. 119);thus, she declined to give credit for time spent in pre-trial custody. [73] The IRCS assessment put before the court contained a very detailed four-stage proposal; depending on the extent of his co-operation by the young person with the treating therapists and his commitment to distance himself from negative influences in theinstitution, he could expect to “cascade” down through various levels of security, leading to releases to attend a community school and tospend increasing amounts of time with his family.

For this reason, Derrick J. modified the Crown proposal and directed that the offenderbe sentenced to 20 months custody followed by 16 months conditional supervision. However, Her Honour indicated that she was notsatisfied to wait for the offender to appear again before her approximately one month prior to his anticipated release date from custody (as. 105 hearing). Instead, she directed that the offender appear before her in six months’ time, with a report from the IRCS team.

Sheadded that she “may order subsequent appearances and reports” (para 124). [74] It does not appear to me from the report of the case that any formal consideration was given to secure vs. open custody. However,I infer from the lengthy description of the four-stage IRCS proposal that officials considered there could be sufficient flexibility throughthe use of “Reintegration Leaves” to prepare the young person for release from secure custody as his conditional supervision release datedrew near.

Perhaps this was why Derrick J. chose to monitor the young person’s progress as his sentence was served. [75] Although the Agreed Statement of Facts filed in the case I am dealing with documents that the young person attempted to flee andhide from the police on the night of the offence, he has no youth record for escaping lawful custody or for failing to appear for court. Further, from what I can tell, he has faithfully observed his bail conditions. Thus, I do not think that “the likelihood of escape”mentioned in s.85(5)(

c) should be a factor that would tip the scales in favour of a secure custodial sentence. [76] While in some provinces the Provincial Director makes the initial determination of custody, in Ontario this decision is made by theyouth court judge who sentences the offender. Looking at all of these factors described in the preceding paragraphs, I have come to theconclusion that there is no rational reason to have T. serve any of his sentence in secure custody – though I reiterate that if he deterioratesor acts out, the Provincial Director can quickly take steps to have him transferred to secure custody.

The Length of the Period of Open Custody: [77] Though it is obvious that the young person’s various recommended treatment and educational needs will require significantremedial efforts, all of which will no doubt take many months, none of the materials prepared for this sentencing hearing by mentalhealth professionals or Ministry officials contain any direct suggestions that might assist me in determining how long the young person

should spend in open custody. I thus get little assistance on this point from these sources – no doubt because the writers of the variousreports consider that it is not their place to make suggestions to the court about length of sentence.

Even though counsel were virtually inagreement as to the length of the period of open custody I should impose, I do want to spend some time discussing what I consider to bethe proper approach to this issue, because, though I am mostly in agreement with counsel as to their conclusion regarding length of theperiod of open custody to be imposed, I find myself in some respectful disagreement as to the analytical framework they have applied toreach this conclusion, which might be important for future “youth” sentencing cases for “presumptive offences” (YCJA s. 2(1)). [78] Ms.

Kranjc began her submission on this issue by referring to the Ontario Court of Appeal’s decision in R. v. A.O. 2007 ONCA144, where the court considered, inter alia, the

interpretation of accountability in the context of deciding whether or not to impose adultsentences – and the appropriate length of those sentences - on recidivist young persons found guilty of six extremely serious conveniencestore robberies where “each of the store clerks was traumatized and four of them sustained serious knife wounds” (para. 9). [79] I asked Crown counsel whether the fact that I am not here dealing with an application to have the young person sentenced as anadult should make any difference in my approach to the Court of Appeal’s accountability analysis.

Clearly, I do not have to be directlyconcerned with whether and how the term “accountability” is used in s.72 of the Act, as that

section is in that part of the YCJA that dealswith “Adult Sentence and Election”. Thus, with all due respect to Crown counsel, I question whether the court’s A.O. analysis is ofassistance to me here. Indeed, I note that the Court of Appeal was careful to specify that it was restricting its analysis to “the combinedeffect of ss. 72, 3 and 38” (para. 42). The court went on to say: “In our view accountability in this context is the equivalent of the adultsentencing principle of retribution as explained by Lamer C.J.C. in R. v.

M. (C.A.) (1996) (SCC), 105 C.C.C. (3d) 327at paras. 80 and 81” (para. 46; emphasis added). This makes logical sense – if a sentencing judge is not being requested to considerimposing an adult sentence, why should the judge rely on an adult sentencing principle? [80] I drew both counsel’s attention to an article[8] published after the release of the A.O. decision, in which Prof. Malcolm Thorburnmakes the point that while the word “accountability” appears at various places throughout the YCJA, it seems that Parliament intendedthat different meanings might be attached to the

interpretation of the concept, depending on context. In fact, the Act – perhapsdeliberately – contains no definition of the term, and it is used with different modifiers and qualifiers in different parts of the statute. Hegoes on to point out that when one links the way accountability is used in the

Preamble with the ways it is used in ss. 3 and 38, “allconnect accountability not only with ‘meaningful consequences’ (which has a clear connection to proportionality in sentencing) but alsoto the ‘effective rehabilitation and reintegration’ of the young person” (p.312; footnotes omitted). He thus argues that “we do not hold ayoung person accountable merely by imposing a proportionate sentence; we only do so if we also promote the young person’srehabilitation and reintegration into society” (p.313).

In referring specifically to the words “proportionate accountability” in s. 3(b)(ii) ofthe Act, he writes: “although proportionality is susceptible to measurement (and therefore a sentence can be either proportionate or not),its substance also concerns other matters such as rehabilitation and reintegration of the offender that are not simply concerned with themeasurement of a sentence’s severity” (p.314). [81] I find much to commend itself in this analysis. Indeed, as Prof.

Thorburn notes in another portion of his article, when oneexamines s.38(1) it seems clear that this subsection, when read in conjunction with the

Preamble to the Act and the Declaration ofPrinciples in s. 3, directs youth court judges to balance “accountability”, “just sanctions” and “meaningful consequences” for theyouthful offender with the need to “promot[e]… rehabilitation and reintegration” of the young person. Importantly, Parliament viewsthis as the best way to “contribut[e] to the long-term protection of the public”.

What I derive from this is that Parliament has intendedthat the application of judicial discretion is to be exercised differently than in the case of adult offenders; s. 718 of the Code directsjudges sentencing adults to choose from a menu of sentencing “objectives”; apart from a statement of “fundamental purpose” that“sentencing is to contribute…to the maintenance of a just, peaceful and safe society”, there is little legislative direction as to how suchdiscretion is to be balanced.

In this regard, the sections of the YCJA that I have referred to provide much more structure in how youthcourt judges are to exercise their sentencing discretion.[9] [82] To sum up to this point in the analysis, I respectfully reject the notion that I am to apply the adult sentencing principle ofretribution in considering a youth sentence. It seems to me that Prof.

Thorburn has it right when he proposes that in dealing with “youth”sentencing under the YCJA, the sentencing principles of “accountability”, “just sanctions” and “meaningful consequences” must alwaysbe balanced with the need to promote the young person’s “rehabilitation and reintegration”, in order to best “contribute to the long-termprotection of the public”. [83] The next cases included in the Crown’s sentencing casebook are the trial and appellate decisions in the important case of R. v.D.B., itself an Ontario case of manslaughter.

The trial judge characterized the offence as “a stupid, impulsive act, borne of exuberance ofyouth and a misguided need for ‘image’ before the offender’s peers” [2004] O.J. No. 6284 at para.15. After considering various“predisposition assessments” which concluded that the offender presented “a significant risk of future violence, particularly if theoffender’s difficulties are not addressed adequately (para. 18) Lofchik J. rejected the Crown application to have the young personsentenced as an adult, but imposed an IRCS order for 30 months secure custody followed by 6 months of conditional supervision.

Incoming to the conclusion that a lengthy period of secure custody was called for, Lofchik J. relied heavily on expert opinion that theoffender “treatment should be offered in a therapeutic milieu with a high degree of structure and integrated academic and socialprogramming” (ibid). [84] On appeal to the Ontario Court of Appeal (ON CA), [2006] O.J. No. 1112 and on further appeal to the SupremeCourt of Canada 2008 SCC 25 , [2008] S.C.J.

No.25, both courts upheld the various components of the sentence imposed by thetrial judge. [85] If the offender in the case at bar were at a risk level somewhat equivalent to that of D.B., I would have had no hesitation inimposing a substantial amount of secure custody, both in the hope of achieving some progress towards rehabilitation, but also for publicprotection. Here, it seems to me the situation is quite different.

The offender’s risk level is considered to be considerably lower than thatof D.B., and the IRCS authorities are content that the necessary services can be offered in an open custody setting. [86] The next Ontario manslaughter case cited by Crown counsel is that of Duncan Prov. J. in R. v. D.L. (No.3) 2005 ONCJ 386, [2005] O.J. No. 3732. The first point I would make in discussing this case is that it did not involve a plea of guilty. While

Canadian courts have not achieved much consensus as to what level of deduction should be allowed at varying points in a case, courts areusually in agreement that some downward adjustment of sentence should be made where there is a guilty plea, and particularly where –as here – that guilty plea is entered at a relatively early stage in the process.

As discussed earlier in these reasons, I am not prepared toreduce the overall sentence to be imposed on the young person other than by the rather minor amounts discussed in paras. 45-48 supra.However, I think it would be appropriate for me to acknowledge the guilty plea by way of some reduction in the custodial portion of thesentence I would otherwise have imposed. [87] Sixteen year-old D.L., who had no previous record, was not suffering from any major mental illness or personality disorder when,having been “legally provoked” by his sister, he stabbed her 17 times with a large knife.

He was assessed by various senior mentalhealth professionals as being: “A low risk to reoffend and…not a risk to others. However, he has significant personal and social maladjustment. He is passive,withdrawn, chronically depressed and shy, immature and lacking in life skills. The offence was a response to a unique and conflictedrelationship with his sister that will not reoccur. While he has accepted responsibility for his actions, he is in need of individualcounselling to assist him in understanding and coping with what he has done”. (para. 12).

I note some similarities between D.L. and the offender I am dealing with. [88] Because the offender had spent 5 months in pre-sentence custody (which Duncan J. was prepared to credit as 10 months), HisHonour decided that no further custody was necessary, and imposed a sentence of two years’ probation (with ancillary orders). Iacknowledge that this is significantly different from the amount of pre-sentence custody served by the offender in the case at bar. [89] The next case referenced by Crown counsel was the “youth” manslaughter sentencing decision of Molloy J. in R. v. P.C. [2013]O.J. No. 919.

This case involved a 15 year-old youth who had facilitated, but had not actively participated in the beating death of thevictim, for which one adult accused had been convicted of second-degree murder and two other adults had been convicted ofmanslaughter. Unlike the case at bar, P.C. had not pleaded guilty, and continued to refuse to accept any responsibility for his

part in thekilling even at sentencing (para. 96). Nevertheless, in his s.34 report in this case Dr. Beitchman considered that P.C. was a very low riskto reoffend (para. 84). [90] Molloy J. considered that in balancing “the aggravating factors in this case and to meet the rehabilitative needs of the P.C.” theappropriate sentence, prior to making deductions for, (

a) time spent in custody prior to bail being granted (94 days at 1.5:1); (

b) a furthermodest deduction of 42 days for time spent on a somewhat restrictive bail; and (

c) a further allowance for time spent in custody post-finding of guilt pending sentence (156 days at 1.1) would have been 2 ½ years. After making these deductions (and doing a certainamount of “rounding”), she decided that a sentence of 10 months in secure custody and 8 months under supervision was appropriate. [91] Defence counsel in that case had argued that the various times spent in custody to the sentencing date (250 days) were sufficient toaddress the custody component of a s.42(2)(

o) sentence.[10] Molloy J. disagreed: “I have no confidence that P.C. will develop the necessary insight into his conduct if merely placed on probation at this stage. According to Dr. Beitchman’s report, P.C. was genuinely perplexed that he could be found guilty in these circumstances. It is apparentthat P.C.’s father, and likely other advisors, have been telling him he did nothing wrong. This is not the message he should be receiving. He needs to learn that he is accountable for his conduct and the consequences of that conduct should be meaningful to him.

ReturningP.C. to his father’s home for another two years of probation will do nothing to achieve those ends. No meaningful plan was put forwardto support such a proposition….I am therefore of the view that a period of custody is required to instil these values in P.C., and hopefullyto guide him to some understanding of his own conduct and some sense of responsibility for what he has done.” (paras. 97-8). [92] No doubt there were factors unique to the case that led Molloy J. to determine that a considerable portion of the custodial sentenceshould be served in secure custody.

Though the report of the case refers to these factors somewhat obliquely, she writes: “I consider it important for P.C.’s proper rehabilitation that he serve sufficient time in custody to deal with his attitude issues and tocomplete as many education credits as possible. I also believe that he needs the structure and supervision, as well as the services that arebetter available in a closed facility, particularly at this beginning phase.

Certainly at this time, I do not feel that the goals of sentencingcan be met in an open custody setting.” (para. 120). [93] I have already mentioned some of the factors which lead me to consider that the offender I am dealing with is very distinguishablefrom R. v. P.C. – the “negligence” aspect of the killing, the fact that this offence had nothing to do with revenge or robbery, theoffender’s obvious remorse expressed both in his guilty plea and as reported by family, mental health and court professionals, and thefact that the IRCS assessment suggests that services are available in an open custody setting.

To them I would add that what I thinkstands out from Molloy J.’s decision is that she does not at all write in the language used by Galligan J.A. for the Court of Appeal in R. v.H. (S.R.); R. v. R.C.M.; she simply does not mention “the need for an exemplary sentence”, “the need for secure custody to reflectsociety’s abhorrence of at least when a “youth sentence” is being considered. [94] Earlier in these reasons I referenced the Supreme Court of Canada decisions in R. v. B.W.P.; R. v.

B.V.N. where the Court declinedto “read in” concepts of general and specific deterrence and denunciation as principles of sentencing under the then wording of the YCJA. Parliament responded to this decision by adding s. 38(2)(

f) of the Act to specify that denunciation and specific deterrence can beconsidered in determining the sentence for a young person for offences committed after October 23, 2012. Given the offence date here(February 11, 2013) I should consider these principles as part of the mix of factors in determining the appropriate length of the opencustody sentence to be imposed here. [95] In my opinion the subject of denunciation can be easily dealt with as it applies to this case.

In the adult sentencing case of R. v.Proulx (2000) 2000 SCC 5 , 140 C.C.C. (3d) 449 the Supreme Court of Canada determined that a conditional sentence ofimprisonment could adequately denounce an offender’s behaviour, particularly if combined with a significant period of time spent under“house arrest”. The YCJA equivalent of a conditional sentence is a “deferred custody and supervision order” (s. 42(2)(p)). Clearly, since“deferred custody” is by definition less intrusive than “open custody”, it logically follows that an open custody sentence can adequately

denounce a youthful offender’s behaviour. In this regard, I would also reference Prof. Thorburn’s description of some of the principal theories of the “communicative function” of sentencing as they relate to accountability under the YCJA (pp.315-21). Though now is not the time to deal with it, perhaps some consideration might be given to Prof.

Duff’s notion of “secular penance” through the performance of community service hours when I impose conditions of conditional supervision under s. 105 approximately a year from now. [ 96 ] On the subject of specific deterrence, the balancing act that I need to conduct here is quite delicate. On the one hand, I recognize that negative peer associations are an issue for this young person; to that extent, any time spent in a custodial facility – even one of open custody – may raise concerns about his ability to avoid those negative influences. He will need to be carefully monitored throughout.

At the same time, through the restrictions on his liberty that will inevitably flow from him being housed in a facility, I need to bring home to the young person what may happen if he contemplates further criminal activities. [ 97 ] After spending many weeks contemplating all of these various factors, I have come to the conclusion that, before making any allowance to acknowledge the offender’s guilty plea, a “continuous period of [open] custody” of 18 months would adequately address the various principles of sentencing that I am to consider here. [ 98 ] I now turn to the question of how best to factor in some credit for the guilty plea – acknowledging of course that any assignment of numerical credit has an arbitrary element.

The conclusion I have come to is this: given the young person’s various identified treatment needs, and particularly his need and desire to upgrade his education, what I think would be best here is to reduce the otherwise merited period of open custody by about 5 months to reflect some credit for his plea of guilty. Thus, I propose to impose a period of open custody running from now to the approximate end of his next full school year in the summer of 2015.

In my view, a custodial sentence of that length will also balance notions of accountability, specific deterrence and denunciation with the need to promote the young person’s considerable rehabilitative prospects. Furthermore, I believe that sensible, tolerant and properly informed members of this community would consider that this application of discretion to be appropriate.

The Portion of the Sentence to be Served in the Community Subject to “Conditional Supervision”: [ 99 ] The options available to the court upon the expiry of the “continuous period of custody” are to impose a period of “conditional supervision” for the balance of the total sentence I deem appropriate, or to impose a period of conditional supervision followed by a period of probation. [11] [ 100 ] I note that it is not automatic in law that the custody and community portions of the sentence should always combine to total 3 years – though most of the case law cited by counsel contains orders reflecting that maximum.

Having said that, I am nevertheless of the view that given this young person’s needs and deficits, the community portion of the sentence combined with the period of open custody to which I will sentence him should total 3 years – less the 81 days described in paras. 45-49 supra . [ 101 ] I have devoted some thought to whether the community portion of the sentence should consist of some combination of a period of conditional supervision followed by a period of probation.

The main difference between these two forms of order is that if the young person breaches – or is perceived to be about to breach – any of the conditions of the order of conditional supervision, the Provincial Director may suspend the young person’s conditional supervision and order that he immediately be returned to custody pending further review ( YCJA ss. 106- 7 ).

Conversely, if the young person breaches a condition in a probation order, all that can be done is to have the young person charged with an offence, usually a more attenuated process. [ 102 ] Another difference between the two forms of order is that the optional conditions attached to a conditional supervision order are not set until about one month before the anticipated expiry of the custodial portion of the sentence ( YCJA s.105), whereas the optional conditions attached to a probation order are normally set at the time of sentencing.

If both forms of order were to be made here, this would put the court in the odd position of not being presently able to impose optional conditions for the first part of the community sentence, but now imposing the optional conditions of the second part of the community sentence.

Thus, despite the fact that I technically have the jurisdiction to make a probation order at this stage, I decline to do so. [ 103 ] The concept of deferring the making of optional conditions attached to the conditional supervision order until a few weeks before the anticipated release of the young person from custody makes good sense, as they can be tailored according to informed recommendations received from supervising authorities at that time. With this in mind T. should expect to return to appear before me for consideration of those conditions about a year from now.

I look forward to reading reports about his progress and prognosis. Ancillary orders: [ 104 ] Counsel were in agreement that a weapons prohibition order and an order for the taking of the young person’s DNA should be made. Disposition: [ 105 ] An Intensive Rehabilitative Custody and Supervision Order of 1015 days (1096 – 81) is imposed. For the first portion of this sentence the young person is ordered to be in continuous open custody for a period of 407 days (May 20, 2014 – June 30, 2015).

Upon expiry of the open custody sentence, the young person will serve the remainder of the sentence (608 days) under conditional supervision in the community in accordance with s. 105 of the YCJA . [ 106 ] Pursuant to s.109 of the Criminal Code and s. 51(1) of the YCJA the young person is prohibited from being in possession of any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive device for a period of 10 years. [ 107 ] Pursuant to s.487.051 of the Criminal Code there will be an order for the taking of a sample of the young person’s DNA (primary).

******* I wish to thank all counsel for their thoughtful and concisely expressed submissions throughout this difficult case. They have been of assistance to the court in the best traditions of the Bar. Released: May 20, 2014 Signed: “Justice D. P. Cole” [9] For this reason, I do not consider it necessary to spend time analysing two of the decisions referred to in the Crown’s case book – R. v. B.T. [2013] 176 and R. v. D.W.C. et al. [2013] A.J. No. 503 .

In my respectful view, though the actual sentences imposed in those cases were no doubt correct for those jurisdictions [9] , the sentencing judges in those cases erred in adopting into the youth sentencing context the definition of accountability found applicable in the adult sentencing case of R. v. A.O. ( R. v. B.T. at paras. 65-67 ; R. v. D.W.C. et al. at paras. 32-34).