R. v. M.D.L., 2018 ONCJ 1003

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —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 conse​quences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. M.D.L. , 2018 ONCJ 1003 DATE: November 7, 2018 Information No. 2811-998-18-Y18258-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. M.D.L. P R O C E E D I N G S A T R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD on November 7, 2018 at OSHAWA, Ontario APPEARANCES :

D. Morgan Counsel for the Crown T. Balka Counsel for M.D.L. MR. BALKA: Number one and two on the youth list, M.D.L. THE COURT: MR. BALKA: Is it all right if he comes up to counsel table Your Honour? THE COURT: Yes. MR. BALKA: This is M.D.L. He's here with his mother E.D. We are proposing pursuant to our pre-trial discussions. We expect that what will happen today is that the Crown re-elect on count one. Previously elected by indictment. We're going to re-elect summarily on the count one which is an assault bodily harm charge. It's anticipated that my client will plead guilty to that. I waive any time limitations with respect to the proceeding in the

summary matter. We propose to proceed to a plea of guilty to that count although the Crown will be reading in other facts with respect to count number two as well that we acknowledge. Had all the plea inquiry discussions with my client. He fully understands all the consequences. He understands that he's giving up his right to a trial, is that right? M.D.L.: Yes. MR. BALKA: And he understands that Your Honour can impose any sentence you see fit. This matter was pre-tried and there was full discussions there, however he understands that Your Honour has the power to impose whatever sentence you see fit.

Do you understand that? M.D.L.: Yes. MR. BALKA: And also he tells me that no one is pressuring you. Am I right about that? M.D.L.: Yes. MR. BALKA: Okay. He also understands any other consequences. We talked a lot about potential consequences from this particular plea and he understands them all Your Honour. THE COURT: Including potential crossing border issues and opportunities that may be imperiled, though I believe he is a Canadian citizen and that's not an issue. MR. BALKA: That's correct. THE COURT: And confirming though First Nation heritage. MR. BALKA: That's correct. THE COURT: It is an informed plea.

Do you agree with everything I've been told sir? M.D.L.: Yes. THE COURT: Yes. It's an informed plea and Crown is content to re-elect? MR. MORGAN: Can I just ask one question? So it's in relation to the count where Mr. D.B. is the victim. MR. BALKA: Oh yeah... MR. MORGAN: Sorry just confirming myself. MR. BALKA: If that's the case I didn't know my friend a specific wish with respect to that and that's fine with me and that would be count two then Your Honour. So rather than plea to count one, there will be a plea to count two with reading in facts in relation to count one as well.

THE COURT: Crown content to re-elect summarily? MR. MORGAN: Yes, yes. Thank you. THE COURT:

Summary election notice and when you're ready Madam Clerk if you could arraign Mr. M.D.L. Actually before you do, the other thing I should've asked because of the last name, he's not seeking any proceedings in the other official language? MR. BALKA: Correct Your Honour. THE COURT: Thank you. Carry on Madam Clerk. CLERK OF THE COURT: You're M.D.L.? M.D.L.: I am yes.

CLERK OF THE COURT: Thank you. You stand charged on or about the 27th day of April in the year 2018 at the City of Pickering in the Central East Region, did in committing an assault on D.B., cause bodily harm to him, contrary to

Section 267 (

b) of the Criminal Code of Canada . Crown elected to proceed by indictment. Crown has re-elected summarily. To this charge as read how do you plead, guilty or not guilty? M.D.L.: Guilty. MR. BALKA: Have a seat right there M. okay. THE COURT: Listen carefully to the facts being read in to make sure you do agree with them. MR. MORGAN: Thank you sir. The facts in this matter are as follows. On Friday April 27th of 2018 T.T. and D.B. – T.T., D.B. and A.G. and T.S. were playing basketball at Westcreek Public School in Pickering. They were playing four on four with another group.

During the game T.T. was trying to clear the ball and pushed one of the males on the other team. At this time the older looking male in the group went over and said "don't touch my cousin". The older looking male pushed T.T. from behind causing him to fall and hit his head on the ground. The older looking male then got on top of T.T. and punched him several times and T.T. advises that he blacked out for a period of time. D.B. then ran over to help and the older looking male threw one punch at him hitting him in the teeth. Two males in the other group then tried to grab the older looking male to get him to stop.

The other group then left in a white Honda with the licence plate -- Ontario licence plate […] and a photograph was taken of the licence plate. T.T., D.B. and their friends did not know anyone in the group by name, but were able to provide police with physical descriptions. They advised that two of the people in the other group were brothers who attend […] High School. Police contacted the school resource officer who was able to identify the brothers based on the description provided. Detective Constable Bacon went onto the Facebook accounts of the brothers.

Both of the brothers had a friend named M.D. (the gentleman before the Court) who matched the description provided by the witnesses. Further, police ran the licence plate number of the white Honda and found that it was registered to E.D. Mr. M.D.L. before the Court was contacted by police and turned himself in on May 9th of 2018. His mother E.D. was present with him at the time. At this time Detective Constable Bacon confirmed M.D.L.’s identity through physical features described by other witnesses including a tattoo on M.D.L.’s left forearm.

In terms of the aftermath sir, D.B.’s jaw was broken in two places which required surgery to repair. T.T. sustained facial trauma, demonstrated signs of a concussion and was instructed to adhere to a concussion protocol. Those are the facts that the Crown is alleging in this matter sir. THE COURT: Yes. MR. BALKA: Yes Your Honour. The circumstances were such that we agree with the facts. I want to point out as part of the facts that my client would maintain and has maintained throughout that he had no intention of hurting these men, but he did strike them and he is responsible for those injuries.

The one punch did we acknowledge broke the person's jaw, it was not intended, but it is a consequence and that's the reason for the plea. THE COURT: Stand up sir. Do you agree that's what happened that day? M.D.L.: Yes.

THE COURT: Find you guilty of the charge which you pled guilty. Just have a seat again for a moment. Don't believe the Crown's suggesting a prior record? MR. MORGAN: The Crown is not alleging a criminal record sir. THE COURT: All right and is it indeed a joint submission? MR. MORGAN: It is not a joint submission for your consideration sir. THE COURT: And the Crown position. MR. MORGAN: Sir the Crown position in this matter is for two years’ probation with the following terms. To report and reside at a location approved of by probation. Do not communicate and remain 100 metres away from T.T., D.B., A.G. and T.S.

Attend counselling for anger management and otherwise directed by your youth worker. Complete 120 hours of community service and do not possess any weapons as defined by the Criminal Code . The Crown is also seeking an ancillary order sir of DNA. It's a primary designed offence. As well, under 51(2) of the Youth Criminal Justice Act a weapons prohibition for two years. Sir the Crown position is based on the following. The Crown acknowledges that there are mitigating factors in this matter.

It is a fairly early guilty plea before a trial had been set and it saves for having to take time off school and going through the stress of testifying. M.D.L. has no criminal record and no prior police activity and aside from this incident it appears he is a social member of society. In terms of aggravating factors in the matter sir. It's the Crown's contention M.D.L.’s use of force was a gross over reaction to the circumstances in which it arose.

The application of force by M.D.L. caused very significant injury to both D.B. with his broken jaw which required surgery to repair and T.T. in terms of the concussion symptoms that carried on for an extended period of time after the event. Both T.T. and D.B.’s victim impact statements which I will pass up indicate that the effects of this assault both emotional and physical are carried with them to this day.

Sir it is the Crown's position that given the significant aggravating factors at play, the principles of general and specific deterrence are engaged, this message needs to be clear to M.D.L., as well as others who might find themselves in similar circumstances that violence of this type will not be tolerated in the school yard and will be addressed firmly by the Court. These principles would be addressed to the imposition of a youth record, probation rather than a conditional discharge and significant community service hours as part of the order.

Further the principle of rehabilitation will be addressed through the probation in the form of counselling and regular reporting. That's the Crown's submissions sir. I have photographs of both the gentlemen after the incident, as well as the respective victim impact statements that they have both written to pass up to you. Both have been disclosed to my friend through Evidence.com sir. THE COURT: Thank you. MR. BALKA: That's right Your Honour. We got the victim impact statements yesterday and my client's had an opportunity to read them.

THE COURT: Though content that Exhibits 1 and 2 respectively for T.T. and D.B. MR. BALKA: Yes Your Honour. MR. MORGAN: And sir I can indicate that while both the victims are not in attendance, both their mothers have attended today and I have had a chance to speak to both of them and they have reiterated to me the high impact this has had both on their lives and their sons lives. Thank you. THE COURT: So perhaps I see that the Crown is introducing photographs with respect to each of the victims? MR. MORGAN: Yes I'm sorry if I didn't make that clear. THE COURT: So let's revamp this.

The photographs with respect to D.B. will be Exhibit 1. Photographs and impact statement of D.B. Exhibit 2. Photographs of T.T. Exhibit 3 and the victim impact statement of T.T. Exhibit 4.

EXHIBIT NUMBER 1 : Photographs of D.B. - produced and marked EXHIBIT NUMBER 2 : Victim Impact Statement of D.B. - produced and marked EXHIBIT NUMBER 3 : Photographs of T.T. - produced and marked EXHIBIT NUMBER 4 : Victim Impact Statement of T.T. - produced and marked THE COURT: I'm seeing these for the first time at this very moment. There's a lot of pages in each. It's now twenty-five after eleven.

I really do think I should take the time to read through the victim impact statements properly and rather than just sitting here and holding everybody up staring at me do that, why don't I give the staff their morning recess at this time. Give me a moment. MR. BALKA: Does Your Honour also have your notes from the pre-trial? THE COURT: I do. Ten two. Just give me time to look at this properly. R E C E S S ....U P O N R E S U M I N G THE COURT: Okay thank you for that.

I realize when I got to chambers there is actually four copies of each of the victim impact statements that gave a different impression as to the length and time that would be required. MR. MORGAN: Sorry sir. THE COURT: What I'm doing is I'm going to keep one copy of each and return the others. Madam Clerk one copy of each can be made an exhibit. When you've posted the appropriate exhibit notifications on the photographs, if I could have those back as well please. CLERK OF THE COURT: Yes. THE COURT: Defence submissions. MR. BALKA: Yes Your Honour. Thank you.

So let me start Your Honour by saying that in terms of indicating where the issues are in terms of this not being a joint position. I take no issue with two years of probation with the terms. The terms I'm entirely in agreement with. I'm asking Your Honour to impose a conditional discharge as the method of imposing that particular probation for reasons I will set out for you. I do recall at the pre-trial us discussing 110 hours of community service, but I don't take any issue with 120. I'm not going to quibble about that. But my note was 110.

And also Your Honour the only other point of departure from my submissions and my friend's is that I'm asking Your Honour to make the no weapons order part of the probation, but not do a separate order for weapons given the circumstances that no weapon was involved et cetera . So those are the points of departure that I have from my friend and I'm asking Your Honour to impose a conditional discharge.

In my respectful submission in the all the circumstances and particularly the age of M.D.L. and his particular circumstances such as having absolutely no record and things of that nature and being a pro-social member of society as my friend indicated, I'm asking Your Honour to impose a conditional discharge. It's certainly in his interest and it's not contrary to the public interest in all the circumstances of the case. So Your Honour heard about the facts and it's interesting that during the course of my friend's resortation of the facts that my client was described as the "older guy -- the older guy".

He's only 16 at the time. But he is very physically developed. His mom is here and she describes him -- he's now 17. He's a 17 year old in a 25 year old's body. And he doesn't know his own strength. He had no idea that one punch like that would do it. He felt the person coming on the side. He wasn't entitled to punch out, but he did and was shocked at the fact that caused those injuries and it was not intended. He was playing basketball with his cousins and his cousin N. was the one who was involved the pushing from the other guy.

My client is quite protective of N. he has some deficits and he was very protective of him and you heard he shouted "leave my cousin alone" and overreacted absolutely as my friend indicated in his submissions and we

agree with that. I can tell Your Honour that some of the mitigating factors are very important. We didn't try to contest any identity or anything like that. We've resolved this case by way of a guilty plea which is important. If this were a trial it would take about four days of trial. We had numerous people on our side to testify and the complainants would be put through it.

And my friend is quite right in pointing out that that's a consideration for Your Honour in terms of the resolution that by resolving this case and entering a plea of guilty on the basis that he did, it is of a great benefit and shows his pro-social attitude in my respectful submission. He is at […] High School. I don't think we need to submit these forms, but I do have an acknowledgement that dated 2018 that my client was in the Honour Roll for that whole year as I understand from his mother he's doing really well at […] High School. He is in grade 12 courses there.

He has a certificate of completion for the student athlete experience program at the Health Institute. so he does things like that. And as I've advised Your Honour the circumstances of this could be very problematic for his future and he recognizes that and still entered a plea of guilty. Your Honour heard that his basketball skills are very significant. He was individually selected by the NBA based on his outstanding basketball skills and leadership ability to attend America's Team Camp in the last summer and did so and distinguished himself as I understand it.

His mother would be the first to tell you that she was very unhappy that this happened and she's been very responsible. She comes in with him, she's dealt with it, but she would say that he's dealt with it appropriately. He wants to apologize. He wanted to enter a plea of guilty and she says that during the course of the school year and all his athletic endeavours he's doing very well and working really, really hard. This plea could definitely cause him a problem with his scholarship. That he recognizes that. It may be that it prevents him.

That was the plan to move forward for America's Team Camp and hope to get a scholarship from the United States. A plea to an assault bodily harm might be very problematic for that, but he understands that there are consequences for his behaviour and is prepared to accept those. It is in his interest to have the conditional discharge. It is a finding of guilt however of course that would be a recognition by the community that this type of behaviour is not accepted.

But in my submission it would be in his interest to get the conditional discharge because it does -- it can impact perhaps on an assessment of whether a team could accept at a Canadian University for example in terms of playing sports. In the public interest I've already pointed out the numerous issues that are involved in a case like this especially with a young person like M.D.L. And in my respectful submission if the public were to hear all the circumstances it would in my submission it would not be contrary to public interest if you accept that. He lives with his mom. She's a single mom.

My client does not see his dad very much. He lives in Oshawa. But despite that issue he has been doing very well. So this is an unusual circumstance. My client's mother would tell you he's not a violent person. He overreacted to an issue that took place on the school yard and as a result he's very sorry and would like to say a few words by that. So I would ask Your Honour to impose that sentence. That sentence would be acceptable, but I'm asking you to impose it in a form of a conditional discharge. I know that from our pre-trial discussions that my friend is not content.

Their position is that it not be a conditional discharge. But in my submission Your Honour this is kind of case in which it can be imposed for the reasons that I've suggested to you. Absent any questions, those are my respectful submissions. THE COURT: And just to clarify something that the younger brother that M.D.L. was trying to assist, had some special circumstances? MR. BALKA: Younger cousin. THE COURT: Younger cousin. MR. BALKA: Yes.

THE COURT: Any particular reason for beyond the usual familial connection for intervening at that point. Were there any specific issues with respect to the cousin? MR. BALKA: Your Honour I'd say he has issues because it's deficits with respect to being able to communicate. I say that because a member of my staff has actually interviewed all the people that were there and gave me that information. So that's why I communicate that to you. It's just that in all the circumstances M.D.L. tells me he's very protective of his cousins. There were actually two cousins there and this one in particular.

THE COURT: Thank you. And have you canvassed with M.D.L. whether he wishes to say anything? MR. BALKA: I have Your Honour. He would like to say some words. THE COURT: Stand up sir. M.D.L.: I just wanted to apologize for my actions to the families of the victims. I wanted to apologize to my own because it's stressful. Like I said I didn't go there to hurt anyone just to play basketball and yeah I'm sorry. THE COURT: Thank you. And in fairness to everybody I think just an off the cuff reasons for sentence is not appropriate here.

Is there any difficulty with coming back this afternoon after luncheon recess from the defence perspective? MR. BALKA: No Your Honour. Thank you. THE COURT: And with respect to both mothers. Are they available to come? I figure it's better to come back this afternoon to then to have to come back on an entirely different day and you've shown enough interest to be here today that I want to accommodate both of you as much as I can. Are you both available to come back this afternoon?

And the other thing I wanted to know arising out of the victim impact statements is that and I apologize I didn't make a note which of the victims -- I think it was D.B. but I apologize in advance if I've mixed the two up. Was talking about the lost opportunity for varsity tryouts. Is that D.B.? All right. Any update from that with respect to the impact of D.B.? MR. MORGAN: Could I ask the mom? THE COURT: Absolutely. MR. MORGAN: The information I have from both moms is as a result of M.D.L.’s actions, basically both of their athletic careers are over. THE COURT: All right.

I think it's important that I know that as well in balancing things out. And I wish I have more confidence that victim support would follow through on some of these things, but you know victim support has provided information to both families with respect to the criminal compensation Board and other options that both families have outside of the criminal process. MR. MORGAN: The criminal compensation board I don't know, but I will find out and ask what other options can be canvassed. I simply don't have that information. THE COURT: Because there's some out of pocket issues here as well.... MR. MORGAN: OF course.

THE COURT: ...that I appreciate M.D.L. is not financially in a position to assist with, I just want to make sure they know of other options. MR. MORGAN: It hasn't happened to date sir, but we'll make sure that it does. MR. BALKA: So 2:15 Your Honour? THE COURT: Let's hope for 2:15. Do we have a two o'clock video tier today? CLERK OF THE COURT: We have a two o'clock matter, but it's not video. THE COURT: Okay so let's say 2:15 or soon thereafter and that way I'll have the luncheon recess to jot some more thoughts down. I want to acknowledge the impact on everybody involved in this. So 2:15. MR.

MORGAN: Yes thank you. THE COURT: All right 2:15. Thank you. R E C E S S ....U P O N R E S U M I N G ...unrelated matter spoken to

MR. BALKA: M.D.L.’s before the Court Your Honour. THE COURT: All right. I'll pass back the photograph exhibits. Just a moment. R E A S O N S F O R S E N T E N C E WAKEFIELD, J. (Orally): One of the weaknesses in our system is that we currently do not obtain victim impact statements until after the plea is taken which deprives victims and their families of the opportunity to have an input at probably the most important stage and that is when resolution discussions are being undertaken by Crown and defence counsel and a judge.

There are some good reasons for that because the Crowns do not want victim impact statements to them becomes [indistinguishable] for cross-examination if the matter is not resolved and goes to trial because victims should not have to be cross-examined on aspects they would not have been cross-examined on beforehand. But there is a quid pro quo balancing of issues here.

The other balancing of issues here before I go into the old review is that there needs to be some certainty in the system and as you may have heard from victim support (at least I hope somebody has kept both mothers in the loop here), that I have expressed certain opinions in the pre-trial process and one of the reasons I have taken as much time as I have today is because I want to make sure how I balance out those expressions I made that resulted in the certainty of a guilty plea and the taking of responsibility while now finding out the extent of the impact of the crime of the two victims.

So to do that I go back to the basic principles of the Act that binds how I approach a sentencing. The Act is one that is very, very different from when I first became a lawyer and there is only about two or three people here who go back as far as I do under the old Juvenile Delinquents Act when 16 year old offenders were treated as adults and processed in the adult court. That was changed with the Young Offenders Act , which was more of a social redeeming piece of legislation as opposed to the far harsher reality that pre-dated that.

Then in turn was taken over by the current legislation, the Youth Criminal Justice Act . And there is certain principles of sentencing here that I have to apply to come to the right sentence. One of them is and I think really important given the circumstances here is that the young persons are accountable through measure that are proportionate to the seriousness offence and the degree of responsibility to youth. Now here M.D.L. is clearly the person responsible for the unreasonable use of force in circumstances mind you of trying to protect a cousin. But he is the sole cause of the injuries.

I must however with the directions provided in the principles of sentencing promote the rehabilitation of the defendant and support prevention of crime by referring M.D.L. to the appropriate program in the community and agencies, as well as balancing out the consequences of the sentence on him. I must craft a sentence which is fair and affects proportionate accountability consistent with the dependency of young people and their reduced of maturity. Meaningful consequences is the utmost target here, but meaningful consequences can mean very different things to very many different young people.

The least restrictive sentence is an obligation imposed on me by the statute. The least restrictive sentence however that is capable of achieving the purposes of the principles set out in the Act. I must look for a sentence which is most likely to rehabilitate the young person, yet promote a sentence of responsibility and acknowledgement of the harm done to the victims. Whether the harm was intentional or reasonably foreseeable. Here, it is accepted I believe and certainly proposed by defence the harm was not intentional and indeed not necessarily reasonably foreseeable.

Unlike the adult regime, I note that the Jobadon (ph) principles do not apply in these proceedings and as such a guilty plea and the taking of responsibility by a young person is demonstrative of taking responsibility especially where a trial might have had challenges for the Crown in terms of the foreseeability or intention aspect of the bodily harm that flowed from the blows struck by this defendant. M.D.L. was 16 at the time. He has no prior record. He did take responsibility by a guilty plea and saved the victims from testifying.

As well by guilty plea saved four or more days of trial which is extremely important in a post Jordan time limit regime that we have requiring matters for adults to be completed within 18 months and at least with the majority of decisions I have read, for youth matters to be completed within 12 months. It meant that by freeing up these dates other trials were able to move forward in a more timely fashion.

While the nature of the charges opens up the possibility of custody, the Crown is not seeking custody, but it is content with a probation order. The Crown is opposed to a conditional discharge given the severity of the impact on the victims especially given some of the now restricted future in sports opportunities for both of those young people. The defence is seeking a conditional discharge. Not only due to the lack of prior record and a positive history of pro-social choices in his life so far, but trying to preserve scholarship opportunities for perspective U.S. Colleges.

That opportunity would be priceless for a young person currently being raised by a single parent who I would assume with substantially reduced resources to otherwise give those opportunities to her son. In all the circumstances, it is certainly very much in the best interest of M.D.L. to have a conditional discharge. I have thought through the second part of this test is it contrary to the public interest? Is it going to bring the administration of justice into disrepute for example with a conditional discharge in these circumstances? And that is why I wish I had more time to digest the victim impact statements.

They were part of discussions at pre-trial, but that is not the regime that we worked with. In all the circumstances here I believe that it is not contrary to the public interest because of other aspects of the total structure of the sentencing here. No sentence that I can ever administer is ever going to put either of the young victims back in the position they were before the day in question. No sentence I can impose is ever going to bring a sense of relying on the justice system to acknowledge all the factors.

How can it if it does not bring people back to the position which they were before they became victims of criminal activity? What I have to focus on is can I make a meaningful consequent sentence that promotes the rehabilitation of the defendant before me today in all the circumstances here. What is being proposed here I believe does balance all those aspects within the structure that I am required to follow by the Youth Criminal Justice Act. As such, there will be a conditional discharge. There is no probation on a conditional discharge.

There are terms of discharge which if breached bring a youth back into the court system with a risk of far more onerous and restrictive consequences. It will be for a two-year duration. You will keep the peace and be of good behaviour. You will appear before the Youth Justice court when required to do so. You will report in person to a youth worker. There is no youth worker I believe here today. So within two workings days and after that at all times and places directed by the youth worker or anyone designated by a youth worker to assist in your supervision.

Now I had originally thought in terms of a reporting condition that would end after a certain number of activities. But now I have had a chance to read the victim impact statements and for now I am going to leave the reporting condition for the entirety of the terms of discharge with the understanding that it is always open for a youth to bring an application to review that aspect which will of course give the Crown an opportunity to get further input from the victims. But for now that reporting order will continue for the duration of the terms.

There will be an order that you do not associate or communicate in any way or be in the company of T.T. or D.B. and subject to submissions from Crown or defence because I do not know if there is going to be any other corollary proceedings, an exception to be in the presence of or through legal counsel and/or a peace officer and any required court attendances. Is there any difficulty from either Crown or defence with that exception? Otherwise I think there should be a complete prohibition for M.D.L. to have contact with either the two victims. MR. MORGAN: I think that makes sense from the Crown's perspective sir.

MR. BALKA: Yes I'm content with the terms. THE COURT: And you not be within 100 metres of any place where you know any of the persons named above to live, work, go to school, frequent or any place you know the persons to be except for required court attendances. Paragraph 11, you will attend and actively participate in all assessment, counselling and rehabilitative programs as directed by the youth worker and complete them to the satisfaction of the youth work including but not limited to anger management.

And under "other", any other counselling that will assist in rehabilitation and better ways of dealing with confrontational situations.

You will sign any release of information forms as will enable your youth worker to monitor your attendance and completion of any assessments, counselling and rehabilitative programs as directed. There has to be something put back into the community to try and balance what has been taken out of the community. The conduct of M.D.L. and the impact on the two families involved does not just diminish the two families sense of security in the community, it diminishes everybody's sense of security in the community. And to put something back into the community, there will be a community service order.

It is one that I had originally suggested at 110 hours. I am now saying 120 hours. It is not what I forecasted, but I think anticipated by defence by bringing it to the 120 hours. That is an important number, because historically 120 hours is clear indication to any future judge should M.D.L. come back into the criminal justice system, that it was in lieu of a custodial sentence and a subsequent judge would see that and see the short hand message by me to that judge that this could've gone in a very different way in terms of the sentencing process.

So you will perform 120 hours of community service work on a rate and

schedule to be directed by the youth worker, but must be completed within 12 months of the start date of this order. Under the probation order paragraph nine, you will not possess any weapons as defined by the Criminal Code . My wording Madam Clerk is to replace for example with the words "including", but not restricted to a BB gun, a pellet gun, firearm, imitation firearm, crossbow, prohibited restricted weapon, ammunition or explosive substance or anything designed to be used or intended to be used to cause death or injury or to threaten or intimidate any person.

My preference is to have that as one of the terms of the conditional discharge. The main reason is it is actually more expansive than the order under 51(3). I assume he does not require a grace period for that? MR. BALKA: He does not Your Honour. THE COURT: Were there any other terms of discharge the Crown would like to see incorporated in here? MR. MORGAN: For the terms of probation sir, no other terms sir. THE COURT: And difficulty with the wording from either Crown or defence? MR. BALKA: No Your Honour. MR. MORGAN: No sir.

THE COURT: I don't recall you saying it, but at the pre-trial there was a request for DNA? MR. MORGAN: I may not have said it, I am asking for it today sir. THE COURT: All right, any contrary submissions. It is a youth matter that gives me more discretion but it is otherwise a primary. MR. BALKA: It is and I recognize the issues with respect to privacy and the opportunity to argue it in front of Your Honour, but based on our pre-trial discussions and my discussions with my client, and the circumstances of the offence, keeping in mind the Court of Appeal's position on these issues we consent to the DNA order.

THE COURT: That means more than just a drop of blood from your finger like you have taken at a doctor's office. That is an intrusion into your personal privacy because it tells the Government everything that makes you a human being and you have lost that interest and your privacy by your conduct that day and the choices you have made. The one thing I will point out is that there is a time limit for a DNA order to be kept by the Government if you stay out of trouble. You have given every indication to me in the background I have heard from Mr.

Balka that this is not going to be something that you are going to repeat, that you have learned and you have every intention of not putting yourself in this situation again. I accept that. The only other thought I had is the efficacy of an apology letter. Something we did not discuss at the pre-trial. I am not sure if it will bring any solace to the family at all. They are words. Sometimes people do find solace in it. Sometimes they do not.

I am going to leave it up to both mothers to speak on behalf of their sons whether that is something that would help either of their sons deal with the consequences of that day's events. Mr. Morgan if you just want to... MS. B.: I'm not sure if it will help my son, but maybe if he put something in writing it could help him. MS. T.: I feel the same. I can't speak for my son, but I think he should have the opportunity.

THE COURT: And indeed there will then be an obligation to write an apology letter to the satisfaction of the youth worker to be forwarded to the victims should they want it through the youth worker's office. So there should not again be any direct communication

by the defendant with either of the two victims. So yes there will be a DNA order as I said. Is there anything else Madam Clerk requires? The address is still the same Mr. Balka? MR. BALKA: Yes Your Honour. CLERK OF THE COURT: No Your Honour. THE COURT: Anything further from the Crown? MR. MORGAN: No thank you. MR. BALKA: Nothing further from this side either Your Honour. Thank you. MR. MORGAN: If the remaining charge could be marked withdrawn? THE COURT: So noted at the request of the Crown. CLERK OF THE COURT: Sorry Your Honour the time of the DNA? THE COURT: Oh we have to do the specified times now?

It's now five to three. Can that be done if I said by four o'clock? Four o'clock will be the time put in there. MR. BALKA: He'll be directed to the spot today. Thank you Your Honour and I thank my friend. * * * * * * * * * *