R. v. Y.A., 2023 ONCJ 194

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. ONTARIO COURT OF JUSTICE CITATION: R. v. Y.A., 2023 ONCJ 194 DATE: 2023 05 05 Oshawa BETWEEN: HIS MAJESTY THE KING — AND — Y.A., a young person Before Justice N. N. Baker Heard on 20230505 Reasons for Judgment released on 20230505

G. Hendry............................................................................................. counsel for the Crown R. Siddiqui........................................................................... counsel for the defendant Y.A. Baker J.: [ 1 ] Sentencing is always an individualized process. However, with young persons this is even more true. Young people in Canada are sentenced in an entirely different manner than adults. The stated purpose of the Youth Criminal Justice Act (YCJA) is to reduce the over-incarceration of young people.

The YCJA allows for sentencing to be tailored for the individual before the court to a greater degree than for adults. [ 2 ] The law that I apply in this sentencing is found in the text of the YCJA. S. 3(1) of the Act sets out the principles to be applied during sentencing. The youth justice system is intended to protect the public by holding young people accountable for their conduct, via sanctions that are proportionate to the seriousness of their offence and their individual degree of responsibility.

It further instructs that rehabilitative sanctions aimed at reintegrating the young person back into society are also capable of protecting the public. [ 3 ] S. 3(1)(

b) of the YCJA reminds that young people, by virtue of their age, have diminished moral blameworthiness and culpability as compared to adult offenders. I must emphasize sanctions that address rehabilitation, reintegration, and fair and proportionate accountability. Sanctions imposed on young people should also reinforce respect for societal values and encourage the repair of harm done to specific victims of the community at large. [ 4 ]

Section 38 explains the purpose of sentencing in the youth criminal justice context: 38(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [ 5 ] Sentencing principles for youths are enumerated in s. 38(2).

These require that the court impose meaningful consequences which are proportionate to the seriousness of the offence and the degree of responsibility of the offender, parity as between similar offenders committing similar offences, and a direction that the sentence must not result in a punishment that is greater than would be appropriate for an adult in similar circumstances. [ 6 ] Youth sentences must by the least restrictive sanctions that can achieve the purpose of sentencing set out in s. 38. They must be the most likely to rehabilitate the young person and reintegrate him into society.

Further, they must promote a sense of responsibility in the young person, and an acknowledgment of the harm caused by his offending. [ 7 ] The court is tasked with imposing sanctions which will sufficiently hold the young person accountable, while at the same time promoting the key sentencing principle of rehabilitation and the important goal of reintegrating the young person at the earliest opportunity. [ 8 ] Counsel agree that the gateway to custody is open and that a custodial disposition is appropriate. [ 9 ] There is an agreed statement of fact in this case.

It is much more detailed than I intend to review here. Suffice it to say, the charges to which Y.A. pled are some of the most serious in the Criminal Code . [ 10 ] While in a relationship with the first victim, he threatened to “shoot up her house”, that he would “box her face in” and that he would “shoot her”, an especially real threat given his involvement with the illegal gun culture. He breached conditions of his release. He encouraged her, with whom he was in a relationship, to give herself to the sex trade. [ 11 ] While in a relationship with the second victim, he sexually trafficked her.

He forced her to have an abortion. He took profits from her sexual work for his sole benefit. He viciously attacked her on numerous occasions including “gun butting” her, knocking out her front tooth and choking her. [ 12 ] Finally, he is found with 2 illegal firearms. These were semi-automatic pistols with extended magazines.

These are amongst the most dangerous items in the criminal justice system. [ 13 ] I have a s. 34 report which, while I cannot characterize it as positive, is very helpful in helping me come to an appropriate sentence in this case. [ 14 ] To his credit, Y.A. has stood up and taken responsibility for his actions. He has saved the victims the strain of testifying. [ 15 ] Aggravating is his criminal record.

His relatively recent conviction for possessing 1.5 kgs of fentanyl and the involvement of a gun in that case highlights some concerns which Y.A. presents. [ 16 ] The offences alleged, and the facts involved, are extremely serious, some of the worst that this court has seen in a youth case.

Essential facts that make out an offence are not, on their own, aggravating. [ 17 ] However, the nature in which some of the offences were undertaken, including the vicious nature of the beatings, the abuse of the relationship he had with the young women, and the brazen nature of some of the acts including beating one victim while in front of a

family member, someone who Y.A. says he respects, and beating the victim while she was pregnant, are aggravating. [ 18 ] Y.A. suffers from Attention Deficit Hyperactivity Disorder (ADHD), Post Traumatic Stress Disorder (PTSD), depression and anxiety. Much of this can be traced to his being shot while being robbed. This relates directly to his criminal record as the robbery occurred during the events which led to his finding of guilt relating to the 1.5 kg of fentanyl. [ 19 ] I was impressed with some of the things Y.A. told me. He admits to struggles with substance abuse.

He has been involved with beneficial programming, including his high school education and education regarding the roots of criminal behaviour while being in custody. I am worried about his lack of insight generally. This was highlighted in the s. 34 report. I note that he provided a generic apology to “all of the victims” today. I understand that the stress of being sentenced does not allow best reflection, especially for a young person. However, his apology today did not allay my concerns which the s. 34 report raised. [ 20 ] The Crown asks me to sentence Y.A. to the maximum 3 years in custody.

They ask me to consider his pre-sentence custody but to afford him no credit for it. They rely on R. v. M.B. 2016 ONCA 760 and I accept that this is an option open to me. The Crown seeks ancillary orders of forfeiture, DNA, and a s. 51 weapons order. The Crown makes reference that it could have proceeded against Y.A. as an adult and a much longer sentence would have been imposed in seeking to justify its position. [ 21 ] The Defence says that 2 years is sufficient to deal with the matter before the court and that pre-sentence custody should be deducted with a credit of 1.5:1 being granted.

This is not the worst case and the worst offender. Rehabilitation is the starting point and perfection cannot be expected during rehabilitation. Defence agrees that the ancillary orders are appropriate. Defence argues that the Crown cannot rely on the possibility of an adult sentence as justifying a longer sentence. [ 22 ] With regard to the issue of the Crown foregoing an adult sentence, I agree with the Defence. The Crown has discretion as to whether to seek an adult or youth sentence.

Similar to the way in which different sentences are available for adults where the Crown elects to proceed summarily or by indictment, this is a core prosecutorial function wholly in the Crown’s discretion. However, where the Crown exercises this discretion, it is not appropriate in this Court’s view, to then reference other methods of proceeding as justifying a particular sentence. [ 23 ] I must though, consider the concept of totality. The Crown, in bringing all matters to be heard together, has foregone seeking multiple sentences across each set of charges. Each of these matters is extremely serious.

Any one of them could justify a significant carceral position. The Crown has exercised restraint by agreeing for this court to impose but one sentence across all matters. [ 24 ] But for the plea, and the significant work which Y.A. has completed, I would have found a 3 year sentence wholly appropriate. [ 25 ] These matters are such that the sentence I would have imposed, but for any presentence custody, would have been 2 years and 180 days. No sentence less than this can meet the sentencing objectives of the YCJA. However, I also think that Y.A. deserves credit for the work he has done while awaiting sentencing.

I accept that there is no mathematical formulation that I need apply when considering pre-sentence custody. In some cases, it will be appropriate to give no credit. However, the work which Y.A. has done, in my mind, has earned him the credit I will grant. He has 218 days of real custody. I will grant him credit at 1.5:1, or 327 days. The concept of lack of earned remission is not wholly applicable in a youth case, but I think that the work that Y.A. has done, nonetheless justifies such an enhancement. [ 26 ] This will leave him with a further time to serve of 583 days or just over 1 year and 7 months.

You shall serve 2/3 of such sentence in custody and 1/3 in the community. I decline to make any further order of probation. In addition, I will impose the ancillary orders requested. There will be an order of forfeiture, DNA, and a s. 51 order for 10 years. Released: May 5, 2023 Signed: Justice N.N. Baker