R. v. E.(D.), 2011 ONCJ 157

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

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 Identity of offender not to be published.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

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 Identity of victim or witness not to be published.—

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

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

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

section 129 (no subsequent disclosure) . . . (

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

b) is guilty of an offence punishable on

summary conviction. Citation: R. v. E.(D.) , 2011 ONCJ 157 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. J. Dunda, ) for the Crown ) — AND — ) ) D. E. ) ) Ms. S. Campbell, ) for the accused ) ) ) ) lipson J.: RULING ON CROWN APPLICATION FOR ADULT SENTENCE Introduction [ 1 ] On August 13, 2010, D.E., a young person within the meaning of the Youth Criminal Justice Act ( YCJA ), pleaded guilty to one count of break and enter of a dwelling and commit theft, two counts of discharge firearm with intent to endanger life, one count of possession of a loaded restricted firearm and one count of possession of a restricted firearm. The Crown applies for an order pursuant to s. 72(1)(

b) of the YCJA that D.E. be sentenced as an adult on these charges. An adult sentence for the offence of discharge firearm with intent to endanger life carries a mandatory minimum sentence of five years imprisonment. An adult sentence for possession of a loaded restricted firearm carries a mandatory minimum sentence of three years imprisonment. Counsel agree that should the court determine that D. E. receive an adult sentence, a further hearing will be held to determine whether the accused is subject to the mandatory minimum

adult sentences. Circumstances of the Offences [ 2 ] An agreed statement of facts, filed as exhibit 1(tab 1) , sets out the circumstances of the offences as follows: September 25 th , 2009: Break, Enter and Commit Theft, Discharge Firearm with Intent to Endanger Life Alexander Gillespie and his girlfriend, Rachel Pieczonca, arrived home at 50 Rippleton Road in the City of Toronto, after shopping at a local mall in the evening hours of September 25 th , 2009. After some time had passed, they went upstairs to go to bed.

At a few minutes after 10:00 p.m., they heard a crashing noise from the back of the house on the main floor. Mr. Gillespie went to investigate and saw three human shadows in the living room area of the house. He yelled, and they fled out of the house towards the street. At that time, Mr. Gillespie’s neighbour, Bruce Macgregor, was outside of his home moving his vehicle. He heard Mr. Gillespie yelling for someone to call the police. Mr. Macgregor had his cell phone, and began to dial 911 when he observed a male running westbound toward a parked vehicle described as a dark-coloured, four-door sedan. Mr.

Macgregor yelled at the male to stop. He then saw another male emerge from the car port at Mr. Gillespie’s residence as he began speaking to the 911 call-taker. He also yelled at that male to stop. The male stopped, looked at Mr. Macgregor, and began shooting at him. Mr. Macgregor believes that he heard three to four shots. He dove to the ground to avoid being hit. Mr. Macgregor received a gunshot wound to his right foot – the bullet entered the top of his foot approximately two inches below his small toe and exited the bottom of his foot near his big toe.

He was taken to Sunnybrook hospital and underwent surgery the next morning. D.E. admits that he participated in the break and enter and that he knew his cohorts had a loaded firearm during the commission of these offences. He also admits that he was aware of the possibility that his cohorts could use the firearm during the commission of the offence. Amongst the items taken during the break and enter was Mr. Gillespie’s iPhone. Also recovered at the scene were several 9mm shell casings.

In addition to those agreed facts, there is no dispute that D.E. and his associates first saw the victims at a shopping mall and decided to follow them to their home in order to break in to their residence and steal property. Saturday, September 26 th , 2009: Discharge Firearm with Intent to Endanger Life A “Sweet 16” birthday celebration was being held for a young lady in the party room of an apartment building located at 3370 Kingston Road in the City of Toronto on September 26 th , 2009. Approximately one hundred people were in attendance.

At approximately 10:00 PM, the victim, Tisman Larocque, and the accused were both dancing. They bumped on the dance floor. A struggle ensued, both between Mr. Larocque and the accused, and between their respective groups of friends. As a result, the lights in the room were turned on. At that time, Mr. Larocque and his friends exited the premises and walked to the rear of the building by one exit, while D.E. and his friends exited the building by another exit. Outside of the building, the trouble resumed and D.E. retrieved a firearm and fired two bullets into Mr. Larocque’s upper left leg. Mr.

Larocque was rushed to hospital, and required surgery to repair a broken femur. A few days later while he was recovering, Mr. Larocque was shown a photo line-up and was able to positively identify the accused as the shooter. Several witnesses provided a description of the vehicle that the accused was seen entering shortly after the shooting. Mr. Larocque has indicated that he will submit a Victim Impact Statement to the Court regarding the aftermath of the shooting. Several 9mm shell casings were recovered at the scene.

Friday, October 2 nd , 2009: Possession of Loaded Restricted Firearm, Possession Restricted Weapon On October 2 nd , 2009, officers patrolling the area of Kingston Road and Lawrence Avenue East in Scarborough noticed a vehicle matching the description of the one used in the events of September 26 th , 2009, at 3370 Kingston Road. The vehicle was stopped in the parking lot of a condominium building located at 90 Ling Road in the City of Toronto. Present in the vehicle was the accused and a number of young females.

Officers questioned the occupants regarding the fact the vehicle had dealer plates, yet nobody knew the origins of the car. Also, the dealer plates had been reported “lost” on an earlier date. All of the occupants exited the vehicle. Officers began questioning the occupants as to the origins of the vehicle, but none of them could provide any information in that regard. At some point, the females asked to sit in the vehicle, complaining that it was cold outside. They were allowed to re-enter the vehicle, along with the accused who sat in the front passenger seat.

Officers asked the female driver to look for any documents with respect to the vehicle, but she simply waved her arms and said she didn’t know where such documents may be. Officers then asked if they could search for the documents and she agreed. Officers searched the glove compartment in front of the accused’ knees and found two 9mm handguns. One of the handguns was loaded. The accused was not permitted to possess such weapons, and the weapons are ‘restricted’, as set out in the information.

When searched incident to arrest, the accused was found to be in possession of the iPhone stolen during the break and enter on September 25 th , 2009.

Further investigation revealed that one of the firearms recovered from the vehicle ejected the shell casings found at both the September 25 th and September 26 th scenes. Further investigation also revealed that the accused (as well as a separately-charged co-accused) had been using the stolen iPhone (with their own SIM cards) in the days immediately following the break and enter. Victim Impact Evidence [ 3 ] The accused shot Mr. Larocque on September 26, 2009. The victim suffered a broken femur. Mr. Larocque declined to provide a victim impact statement.

The Crown advised the court that the victim has made a complete physical recovery. [ 4 ] The Crown did not submit victim impact evidence from the victims of the break and enter of September 25, 2009. [ 5 ] Bruce Macgregor, the victim of the September 25 shooting, did provide a victim impact statement, exhibit 2. He also testified at D.E.’s sentencing hearing. [ 6 ] Mr. Macgregor is a 51 year old civil servant. He is married with two children. In his victim impact statement, Mr.

Macgregor eloquently described the emotional and physical impact of this crime on himself and his family as follows: Emotional Loss A random encounter with a violent criminal has most certainly changed my life and that of my entire family. I am still periodically haunted by the image of a darkly clad and hooded offender who stops in the middle of fleeing, steps towards me and with an arm straight out and without warning, fires a handgun, not once but four times. Unfortunately, I can’t dismiss this as a nightmare. The experience seems indelibly etched into my subconscious.

As a result, I have become less secure in what I consciously know to be a “safe” neighbourhood. My early response included a security obsession-locking doors, installing fences with locked gates, motion sensing lights, monitored alarms, panic buttons and other security measures to comfort my family. The potential of an armed home invasion seems to be much more than the likely event I would characterized it as before my neighbour’s house was broken into by these perpetrators.

The recollection of finding me fallen on the front lawn telling the 911 operator that I had been shot, still brings tears to wife and daughter’s eyes. My son is similarly affected as he recalls returning home that evening to encounter Police cordons and the news that his dad “had been shot”. I remained intrigued by the complexity of thought that pervades your consciousness after this type of traumatic experience. The thoughts that flashed through my mind during the seconds that the whole incident played out, seem to take several minutes to replay.

I thought of the terrible consequences to my immediate family of watching me die, unnecessarily in our “safe” neighbourhood. I thought of my 92 year old mother, who depends on me for the necessities of life. I thought of my elderly neighbours who I also help out with weekly tasks and wondered how their lives would also change. We’ve become lighter sleepers, reacting swiftly to any sounds. Phones are always nearby. Before the perpetrators were apprehended, we were greatly comforted by a visibly increased Police presence on the street and in the neighbourhood. It helped make us feel less imprisoned in our home.

I am a rational person, but it is a challenge to not feel suspicious, uneasy and even fearful when encountering even a small group of younger people. The sudden and potentially lethal consequences of an unprovoked attack have made me, sadly, far less trusting. I’m fortunate to have a circle of friends who have built reputations as valued members of society by helping others. The incarceration of those who seek respect through senseless brutality provides at least some comfort that good will prevail.

Physical Injury In hindsight I consider myself fortunate to have been struck only twice (once through my left pant leg about one-inch from my knee and once through my right foot) as the trajectory of a bullet extracted from my neighbour’s garage was likely above my head. The bullet that went through my right foot probably hit as I dove in the opposite direction to avoid the gunfire. While the cuts and scrapes have healed, the bullet broke two bones-requiring surgery. I’m currently following up on related complications. Prior to the incident, I regularly ran and played hockey a couple of times weekly.

I have yet to be able to run and have pain and difficulty putting on a skate. I suspect that additional surgery will be necessary to restore full mobility. Circumstances of the Offender [ 7 ] The court considered the following reports which were ordered and prepared for this sentencing: 1. A pre-sentence report (PSR) dated September 10, 2010, exhibit 1(tab2). 2. A s. 34 YCJA assessment dated October 14, 2010 authored by Dr. Lindley Bassarath, a staff psychiatrist and Head of Adolescent Services, Child and Youth and Family Program, Centre for Addiction and Mental Health, exhibit 1(tab 3). 3.

Brookside Youth Centre records, exhibits 1(tab4) and 3. The court also heard the testimony of Patricia Johnson, a former teacher and family friend of D.E. [ 8 ] The pre-sentence report and s. 34 assessment comprehensively set out the young person’s personal and family history. [ 9 ] At the time of the offences, D.E. had no prior youth record. He was one month shy of his seventeenth birthday. D.E. was born in Trinidad and immigrated at the age of six to Canada in order to live with his mother. He maintains contact with his father who resides in

Trinidad. At the time of his arrest, the accused lived with his mother, step-father, two older step-brothers and step sister. D.E. comes from a close and supportive family and the PSR indicates that he has always been respectful towards family members and tended to follow the house rules. He spent one year living in Trinidad with his father in 2009. He has a particularly close relationship with his mother and two step-brothers. [ 10 ] D.E. has resided mainly in the Malvern area of Scarborough and prior to these offences had witnessed incidents of gun violence that are described in the PSR and testimony of Ms.

Johnson. He witnessed a drive-by shooting, a party being “shot up” and other forms of street violence. As well he experienced the loss of a friend in Trinidad who was killed at a party. His own house was “shot up” prior to him leaving for Trinidad. The accused denied belonging to a gang in Malvern but at the same time advised the PSR writer that he felt his safety was in jeopardy when he was in the Galloway area of Scarborough. The PSR indicates that D.E. felt that he “needed to obtain and carry protection to approach this area. Protection ultimately took the form of a loaded firearm.

Despite these concerns, the location of the shooting of Mr. Larocque at a party occurred in the heart of the Kingston Road-Galloway area.” [ 11 ] The PSR sets out a long history of behavioural problems at school which resulted in fourteen suspensions and one expulsion. Disciplinary measures had to be taken to address his bullying, intimidating and threatening behaviour toward other students, persistent opposition to authority and possession of weapons. [ 12 ] At the same time, the majority of report cards describe the accused as being very intelligent and capable of much greater academic achievement. Ms.

Johnson taught D.E. in grade 6, coached him in basketball and continued to assist him in his studies during his junior high school years. She testified that D.E. possesses natural leadership qualities. Ms. Johnson spoke eloquently of the devastating emotional impact upon D.E. as a result of witnessing incidents of gun violence in the community as well as seeing his two brothers, whom he reveres, incarcerated for various offences including robberies. [ 13 ] Since October 4, 2009 D.E. has been in pre-sentence detention at Brookside Youth Centre.

His progress at Brookside with respect to institutional behaviour and programming was, to say the least, uneven in the first few months. There are negative reports that allege that D.E. instigated two fights, was targeted by another youth regarding suspected gang issues and that he engaged in disruptive classroom behaviour as well as lying and intimidating peers. He was unable to work at school due to hostilities towards and from another youth but did well in one-on-one mathematics instruction. D.E. was involved in four altercations with co-residents during the period of December 2009 to June 2010.

The records show that staff considered him to be the clear aggressor in one of those incidents. D.E. was charged and found guilty in Cobourg Youth Court of assaulting a co-resident for which he received 12 months probation. Since August he has been participated in counselling for “life issues”. In recent months D.E. has made good progress at Brookside, returning to full- time studies in the fall of 2010 and early 2011 despite the occasional lapse in motivation. The last update report from January 2011 indicates that since resuming full time studies, D.E. has earned several Grade 9 and 10 credits.

As well, he has attained the highest privilege level because of his good behaviour in the institution. [ 14 ] Psychological testing done for the s. 34 assessment reveal that the accused’s cognitive abilities are generally in the low- average to average range. His processing speed ability is an area of weakness for him and he is likely to learn more efficiently when given extra time to process new information and complete his work. Risk assessment testing showed him to be a “moderate risk for general re-offending” at the time of assessment. [ 15 ] Dr.

Bassarath indicates at page 19 of the s. 34 assessment: “The areas identified as criminogenic risk/needs include educational factors (history of disruptive school behaviours, problems with peers and teachers, underachievement in past and unemployment in past; some antisocial acquaintances, lack of structured organized recreational activities (prior to custody); personality and behavioural variables (physical aggression at times in past, inattention in past, low frustration tolerance as per past reports).

Areas identified as relative strengths included good relations with custodial staff, good independent schoolwork (e.g. current math course), high behavioural level in custody (3), lack of substance abuse, lack of psychopathic traits, lack of previous charges, presence of pro-social peers and presence of remorse.” Attitude of D.E. Regarding the Offences [ 16 ] The PSR at pages 13-14 states the following: “In discussing the first offence before the Court, the young person informed that one co-accused was a friend, while the other was introduced to him by a friend one month before the offence.

The young person related that the other two parties had planned the break and enter, and advised that he was the “lookout” while the other two entered the home. D.E. related that following the shooting he observed the victim on the ground, and believed him to be deceased. He advised he was concerned about getting home, and noted he did not consider the welfare of the victim, nor entertain doing anything to help him. The youth advised the parties laughed, noting they could “all go to jail for this”.

D.E. stated he does not feel he is at all responsible for the outcome, as he was not a part of the initial planning, and did not know that someone was going to get shot. He stated that at the time when they were following the victims of the break and enter to the residence, he felt it was okay to go along with his co-accuseds as he knew he wasn’t going to be doing anything to actively participate in the break and enter. The young person acknowledged his awareness that the other parties had a loaded firearm, and acknowledged the potential for that firearm to be used during the commission of the offence.

Overall, however, he minimized his participation in and responsibility for the occurrence. The young person maintained that he “just went along” with the plan of the others and as such is less responsible for the outcome. D.E. related that if he had known ahead of time that someone was going to be shot, that he would have thought twice about going along with the plan. The youth was able to identify in general the impact such an offence could have on the victim, and related that he would feel very angry if he or a loved one was “shot” in this manner for “doing the right thing”.

D.E. deems his level of responsibility for the potential impact on the victim, however, to be lesser than the other involved parties given his perceived lesser role in the offence. When

discussing mediation, the young person felt that he does not owe the victim an apology, given that he was not the person to pull thetrigger. If anything, he advised he could apologize for not helping him after the shooting occurred. D.E. felt he had no other options inthis situation than to follow along with the plan. With regard to the second offence, D.E. informed that he knew before hand that he should not have attended the party. He stated hehad heard there would be people from “G-way” at the party, knew the party was near the cusp of the Galloway area, and therefore felt itnecessary to obtain backup.

Although he initially attempted to have a friend be his backup, the lack of availability of the said friendreportedly resulted in the youth obtaining the firearm. D.E. noted it was easy to obtain a firearm. The youth advised his choice to produce a firearm was for the purpose of intimidation, and to scare the opposing group. He advisedhis choice to discharge the firearm was a bit of a reaction, and as such he fired, but did not know what was going to happen. He informedhe did not know what he was shooting at.

D.E. stated that if it had been his intention to kill someone, he was in close enough proximityto have taken aim at a number of persons. He added that at the time of the incident, he did not know that the victim was a resident of theGalloway area. He recalled immediately hoping that the victim would be okay after the shooting occurred. In contrast to the first offence, the young person felt he is responsible for what happened to the victim. He noted he had a feelingsomething was going to happen, and took responsibility for proactively obtaining a firearm, and then being the one to produce, and use,the firearm.

D.E. maintained that no other options existed for him to resolve the situation. In retrospect he felt the only option that couldhave avoided the situation would have been to try to talk to the victim initially to explain he did not mean to push him. After that pointof the interaction, however, he did not deem any other resolutions to be available to him given the circumstances. The young person advised he does not see himself becoming involved in these situations again in the future. The youth also advised,however, that he did not see himself being in these situations before they happened.

His plan to prevent further offending includeslimiting his social network to one peer, avoiding getting into arguments with people, remaining out of a specific area, and to avoid peersthat do things like have a gun, and break the law.” The Applicable Legal Principles [17] The Crown applies to have D.E. sentenced as an adult. In R. v. D.(M.) et al., 2008 ONCJ 310 (O.C.J.), my colleagueFinnestad J. provided the following helpful

summary of the applicable legal principles governing this type of application: The test to be applied is set out in s. 72 of that Act. A youth court justice is to consider the seriousness and circumstances of theoffences, and the age, maturity, character, background and previous record of the young person, in addition to any other factorsconsidered relevant.

If the judge is of the opinion that a youth sentence imposed in accordance with the principles and purpose set out ins. 3(1)(b)(ii) and s. 38 of that Act would have sufficient length to hold the young person accountable for his offending behaviour, a youthsentence must be imposed. If a youth sentence imposed with these considerations in mind would not have sufficient length to hold theyoung person accountable, then an adult sentence must be imposed. The onus is on the Crown, although it does not require proof beyonda reasonable doubt.

Any youth sentence that might be imposed must emphasize, in accordance with s. 3(1)(b)(ii), fair and proportionate accountability that isconsistent with the greater dependency of young persons and their reduced level of maturity. The Supreme Court of Canada has recentlyin R v D.B. 2008 SCC 25 , (2008 SCC 25), articulated the principle of fundamental justice that young people are entitled to apresumption of diminished moral blameworthiness or culpability flowing from the fact that, because of their age, they have heightenedvulnerability, less maturity and a reduced capacity for moral judgment.

Any youth sentence that might be imposed must also consider the purpose and principles set out in s. 38 of the Youth Criminal JusticeAct. The purpose of youth sentencing is to hold a young person accountable for an offence through the imposition of just sanctions thathave meaningful consequences for the young person and that promote his rehabilitation and reintegration into society, therebycontributing to the long-term protection of the public.

Such a sentence must not result in a greater punishment than an adult wouldreceive for a similar offence, and must be similar to that given to other youths for similar offences. It must be proportionate to theseriousness of the offence and the degree of responsibility of the youth for that offence. All available sanctions other than custody thatare reasonable in the circumstances should be considered for all youths.

A youth sentence must be the least restrictive one that iscapable of achieving the purpose of the Youth Criminal Justice Act, the one most likely to rehabilitate and re-integrate him, to promote asense of responsibility in him, and an acknowledgment of the harm done to the victims and the community. Seeking a sentence that holds these youths accountable requires an application of the sentencing principles set out in s. 38(2) and thesentencing factors in s. 38(3).

The combined effect is to identify accountability as the central consideration in a decision under s. 72.Accountability is achieved through the imposition of meaningful consequences for the offender, and sanctions that promote hisrehabilitation and reintegration into society. The principle of accountability requires an approach that is “offender-centric” and which excludes adult sentencing principles such asdeterrence and denunciation. (R. v B.W.P.; R.v B.V.N. (2006), 2006 SCC 27 , S.C.J. No 27 (S.C.C.)). The Court of Appeal forOntario in R. v. A.O., ((2007) 2007 ONCA 144 , O.J.

No 800), interpreted accountability under the Youth Criminal Justice Actas equivalent to the adult sentencing principle of retribution. The Court held at p 47 that

In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, “the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender and the normative character of the offender’s conduct.” We see no other rational way for measuring accountability. The Supreme Court of Canada in R. v C.A.M. ,

(1966) S.C.J. No 28 at paragraph 80 described retribution in a criminal context as representing An objective, reasoned and measured determination of an appropriate punishment, which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing m Analysis [ 18 ] Section 72(1) of the YCJA directs the court, in deciding whether to impose an adult sentence, to consider three factors: (

i) the seriousness and circumstances of the offence. (ii) the age, maturity, character, background and previous record of the young person. (iii) any other factors the court considers relevant. (

i) The seriousness and circumstances of the offences [ 19 ] While it is important to properly consider the factors set out in section 72 (1) of the YCJA , it is essential that the sentencing judge address the nature of the crime in considering the notion of accountability: R. v. Logan , 2009 ONCA 402 at para.15. [ 20 ] The seriousness of these offences is readily apparent. Four of the offences involve the use or possession of firearms. All of these crimes involved significant intentional risk-taking on the part of the accused. There were multiple victims harmed.

In committing these offences, the accused put the community at grave risk. His moral culpability is high. [ 21 ] The break and enter of September 25, 2009 was planned. D.E. and his two associates followed the intended victims from a mall to their residence. They entered the residence while the victims were at home. The accused acted as a lookout but knew that one of his co-accused was carrying a loaded firearm. One of his co-accused shot Mr. Macgregor who was calling 911 in the foot as they fled the house. Mr.

Macgregor’s victim impact evidence poignantly describes the physical and emotional aftermath he and his family have endured since the shooting. The PSR indicates that D.E. feels little to no remorse or responsibility for the outcome because he was not part of the initial planning, just “went along” with the others, and played a relatively minor role in the offence. He saw Mr. Macgregor on the ground, believed him to be dead but “was concerned about getting home, and noted he did not consider the welfare of the victim, nor entertain doing anything to help him.

The youth advised the parties laughed, noting they could “all go to jail for this”. [ 22 ] The accused was, of course, the principal in the shooting of Mr. Laroque which occurred only one day after the shooting of Mr. Macgregor. According to the PSR, the accused armed himself with a loaded handgun because he heard that there would be people from the Galloway area of Scarborough present at the party. The accused not only carried a loaded firearm but after a minor pushing incident with the victim, fired two bullets into one of the victim’s legs.

The presentence report states that the accused “maintained that no other options existed for him to resolve the situation. In retrospect, the accused now regrets his conduct, has expressed remorse and now understands that there were possibly non-violent means to resolve the issue.” [ 23 ] The third offence involved the accused with three passengers, in a car that contained two firearms. One was loaded. The other was not. He was unable to explain to Dr.

Bassarath whose car it was except that “someone gave them the car”. [ 24 ] With respect to the break, enter and theft charge, the maximum youth sentence available is one of three years custody and supervision comprised of a period of custody not to exceed two years followed by placement in the community under conditional supervision up to one year. The other charges to which D.E. pleaded guilty carry a maximum custody and supervision sentence of two years: s.42(2)(

n) YCJA . The combined maximum youth sentence for all of these offences cannot exceed three years. (ii) Age maturity and character of the accused [ 25 ] The accused was a month shy of his 17th birthday when he committed these crimes. There is no controversy that the closer an offender is to the age of 18 the more the age factor would tip the balance toward an adult sentence over a youth sentence. [ 26 ] The PSR and the evidence of Ms. Johnson indicate that D.E. tends to associate with a more mature crowd and that he is more of a leader than a follower.

His troubled school history features many suspensions and one expulsion for acts of misconduct. Since his arrest he has been involved in a few altercations at Brookside and has one finding of guilt in youth court for an assault upon a fellow resident in the institution. Fortunately, D.E. does have strong family support which is a positive factor for his rehabilitation. He expresses remorse for the shooting of Mr. Larocque but does not accept any particular responsibility for the break and enter offence or the shooting of Mr. Macgregor.

In recent months his behaviour, attitude and participation in programming at Brookside has improved. His progress within the structured setting of Brookside has been relatively recent. This strongly suggests that if further progress is to be made,

maintaining a structured environment will be necessary as he continues to mature. He was certainly capable of knowing right from wrongwhen he committed these serious offences before the court. (iii) Any other factors that the court considers relevant [27] I agree with the following observation of Nordheimer J. in R. v J.S.R. (ON SC), [2009] O.J. 1662 atparas. 71-73 that the above heading includes the interests of society: I am not attempting to arrive at a sentence the object of which is to show society’s censure of the conduct involved. That would betantamount to expressing denunciation.

Rather, I am attempting to recognize, as the YCJA itself does, that there is a legitimate publicinterest in the sentencing process involving young person. Respect for the justice system commands a sentence that not only is, but isseen to be, reflective of the acts underlying the offence and the offender’s role in those acts. We have the right to expect an appropriatedegree of accountability and responsibility from all of our citizens, even our youngest citizens. Balancing sentencing objectives of accountability and rehabilitation [28] At page 21 of the s. 34 assessment, Dr.

Bassarath helpfully sets out many of the competing relevant considerations whichfavour either an adult or youth sentence in this case as follows: “Factors favouring a youth sentence include the following: D.E., despite the severity of the charges has no youth record. He does havesome risk factors for re-offence, though insufficient to technically be deemed high risk. He does not exhibit callousness or lack ofremorse (i.e. does not have psychopathic traits). He has low average intellectual ability and low processing speed and hence may not beas capable or sophisticated academically as the average youth.

He has several strengths including a supportive family, goals for the futureand pro-social friends that may assist in reducing his risk even further. For the past few months he has behaved well at Brookside, andhas consistently remained at the highest level and top of the unit board during this period. Finally, while taking responsibility has notbeen his strong suit in the past, he does sound rather convincing in verbalizations of regret about the shooting in particular. As for the factors favouring an adult sentence, the charges are quite severe in nature, despite not having a record.

He does have alengthy history of behavioural problem, peer issues, oppositionality and poor problem solving. He doesn’t have much insight into whathe may need to change in himself, and feels he has matured sufficiently in the last year (e.g. needing to continue to work on positiveproblem-solving and conflict resolution skills, rejected Breaking the Cycle, no clear goals in meeting psychometrist).

He also has alengthy history of externalizing responsibility and minimizing his impact on others, somewhat exemplified (in addition to examples inthe PSR) by him going along for the ride to what he knew would be a robbery, then discounting his role as merely waiting in the car,thus absolving himself of any guilt or remorse.” [29] I also take into account D.E.s pleas of guilty. I understand that had there been a trial, the Crown would have faced somedifficult challenges in proving its case.

The guilty pleas demonstrate that D.E. takes responsibility for his conduct and constitute animportant mitigating factor. [30] Section 72(2) of the YCJA imposes an onus upon the Crown of satisfying the court that an adult sentence is necessary. Inapplying that onus, I am mindful of the very serious consequences of an adult sentence for the young person. However, I am satisfiedthat the maximum youth sentence, even taking into account pre-sentence custody, is not sufficient to hold D.E. accountable for hisbrazen and very dangerous offending behaviour.

I am satisfied that D.E. possessed a sufficient degree of “streetwise” maturity to makethe decisions that he did. [31] He chose to participate in a break-in, knowing that one of his co-perpetrators was armed. He would also have known thatthe homeowner victims were at home at the time. The potential for serious injury or even death was obvious. In fact, an innocentbystander was shot during the incident. This type of break-in is certainly one of the most serious and amounted to a home invasion. [32] The very next day, D.E. chose to bring the same loaded firearm used to shoot Mr.

Macgregor to a “Sweet 16” party full ofyoung people. After a minor pushing incident with the victim, D.E. shot Mr. Laroque twice in the leg. [33] One week later, the accused chose to transport in a vehicle the same loaded handgun used in the previous offences as wellas a second gun.

There were three passengers in the car with D.E. [34] The nature of these offences and the accused’s role in them are significant factors which favour an accountability sanctionof a length greater than the maximum provided in the youth sentencing regime. [35] Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions to promotehis rehabilitation. What the court cannot do is add on to the youth sentence an element of general deterrence or denunciation.

Thesentence must be long enough to reflect the seriousness of the offences and D.E.’s role in them while taking into account the accused’sdecreased maturity. The sentence must be long enough to provide reasonable assurance of this young person’s rehabilitation to the pointwhere he can be safely reintegrated into society. [36] In my view, the term “meaningful consequences” refers to not only any custody portion of a sentence but also sanctionsdesigned to promote the rehabilitation and reintegration of a young person.

I am satisfied that D.E’s sentence must include a period ofcommunity supervision and programming of a length that is simply not available in YCJA sentencing. Several potentially usefulprogramming options are set out in the s. 34 assessment. In addition to possible parole supervision, an adult sentence can provide for upto three years of probation. I am persuaded on the evidence that lengthy community supervision is necessary for D.E.s rehabilitation inorder to reduce the likelihood of him committing further offences.

While it must be acknowledged that the accused has madeconsiderable progress in the highly structured setting at Brookside, an important factor favouring an adult sentence is the possibility ofprobation for an extended period of time. An adult sentence can afford a greater degree of security for the public than a youth sentence.In my view, this is a case where the main sentencing objectives of accountability and rehabilitation complement one another.

[37] Counsel for D.E. submitted that a youth sentence would be of sufficient length to hold D.E. accountable for his offendingbehaviour if no credit was given for the lengthy period of pre-sentence custody. He has been at Brookside Youth Centre since earlyOctober 2009. [38] This submission raises the question of whether a sentencing judge can fail to give credit for pre-sentence custody. [39] In Ontario there is conflicting appellate authority on the issue. In R. v.

B.(T.)(2006), (ON CA), 78 O.R.(3d) 721 at para. 23, the Ontario Court of Appeal decided that credit must be given for pre-disposition custody by reducing the furtherperiod of custody to be served upon sentencing. In R. v. D.W., 2008 ONCA 268 the Court of Appeal revisited the issue and held that asentencing judge was not required to directly deduct the time spent in pre-trial custody where the appropriate disposition was a youthsentence. In R. v. Logan, 2009 ONCA 402 the Court of Appeal recognized that a sentencing judge has the discretion to not subtract pre-trial custody.

The most recent appellate decision from outside of Ontario is R. v. D.D.T. [2010] A.J. No 1384, where the Alberta Court ofAppeal held that section 38(3)(

d) of the YCJA must be interpreted to permit a discretion to “to take into account” the period of pre-disposition custody in ways other than by granting a reduction in the custodial period to be served as a reflection of the period of pre-trialcustody. [40] I agree that in appropriate cases the sentencing judge may give no credit for pre-disposition custody where that is requiredto keep a young person within the youth court sentencing regime in circumstances where to do so best meets the goals of the YCJA.

Thatapproach is premised on the consideration that to grant credit would result in the youth having to be sentenced as an adult. That, in myview, is not the case here. As I indicated earlier in these reasons, even if D.E. was not given credit for pre-trial custody, a maximumyouth sentence would not be of sufficient length to hold the accused accountable. In this case, an adult sentence is required because of theextremely serious nature of his offences and the high degree of this offender’s moral culpability.

A maximum youth sentence would notprovide a sufficiently lengthy period of custody or a sufficiently lengthy period of community supervision.

As I indicated earlier, D.E.will require a long period of community supervision in order to further his rehabilitation and reintegration in the community which as Iindicated earlier can be provided only by adult parole and probationary services. [41] In conclusion, the Crown has satisfied its onus of establishing that D.E. should be sentenced as an adult. [42] The next issue to be determined is whether he is subject to the adult mandatory minimum sentence provisions for some ofthe offences to which he has pleaded guilty. Released: March 18, 2011 Signed: “Justice T. Lipson”