R. v. C.(M.), 2011 ONCJ 479

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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. COURT FILE No.: Toronto Region DATE: 2011·09·06 Citation: R. v. C.(M.) , 2011 ONCJ 479 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — M.C., a young person Before Justice Andrea Tuck-Jackson Heard on December 13, 2010, March 4, 14, April 29, 2011 Oral Reasons for Judgment released on May 9, 2011 Supplemental Written Reasons for Judgment released on September 6, 2011 Mr. K.

Lockhart ........................................................................................................ for the Crown Mr. D. Michael .................................................................................... counsel for the accused M.C.

TUCK-JACKSON J.: [1] On May 9, 2011, I sentenced M.C. to a three-month custody and supervision order, where the first two months are to beserved in an open custody facility and the final month is to be served under community supervision, followed by 17 months of probation.In addition to a two-year prohibition pursuant to § 51(1) of the Youth Criminal Justice Act (herein also referred to as “YCJA”), I orderedthat Mr. C. provide a sample of his DNA in relation to each of the two counts of robbery and the two counts of using an imitation firearmwhile committing, in this case, the offence of robbery.

Finally, I designated each of the counts of robbery as a “Serious Violent Offence”(herein also referred to as an “SVO”). Though I provided oral Reasons for Judgment on the day of sentencing, what follows are mywritten Reasons for Judgment, particularly in relation to my decision to designate each of the robberies as a Serious Violent Offence. I. Overview [2] M.C. appears before me for sentencing following guilty pleas to two counts of robbery and two counts of using animitation firearm while committing a robbery.

The impugned robberies occurred on the mornings of June 22 and June 23, 2010 at twoseparate convenience stores. They were committed in the company of adults. The victims of each robbery, as particularized in the counts,namely, Li Fen Lu and Min Fang Zhai, suffered not insignificant injuries, both physical and psychological. [3] Mr. C. has been in custody in relation to these charges since June 23, 2010. It is common ground between the partiesthat when assessing credit for this period of pre-trial detention, the Court should apply a ratio of 1:1.5. [4] It is also common ground between the parties that Mr.

C. should receive a global sentence of three years in duration.The parties depart as to what should comprise that three-year sentence. [5] It is the position of the Crown that on top of pre-trial detention, the Court should impose a five-and-a-half-monthcustody and supervision order, to be served in a secure custody setting, followed by a period of probation equivalent to the remnant oftime available within the parameters of the total available sentence. Mr. Lockhart on behalf of the Crown, also seeks a two-year weaponsprohibition, pursuant to § 51(1) YCJA and has requested that Mr.

C. be ordered to provide a sample of his DNA in relation to each of thefour offences. Finally, Mr. Lockhart has applied to have each of the two counts of robbery designated as a “Serious Violent Offence” onthe face of the Information. [6] Mr. Michael on behalf of the defence vociferously opposes the Crown’s application to have each of the two robberiesdesignated as a Serious Violent Offence. Further, it is the position of the defence that, having regard to the amount of pre-trial detentionwhich has been served, no further custody is warranted.

In the alternative, the defence urges the Court to conclude that a deferredcustody and supervision order, followed by the maximum available period of probation, is the sentence which would hold Mr. C.accountable for his actions. Mr. Michael takes no issue with the appropriateness of the ancillary Orders sought by the Crown. II. Circumstances of the Offences [7] As noted above, Mr. C. has pled guilty to offences arising from two robberies committed on June 22 and 23, 2010. Anadditional robbery of June 23, 2010 committed by Mr.

C. and his adult accomplices forms part of the facts for my consideration, inaccordance with the principles set out by the Ontario Court of Appeal in R. v. Garcia and Silva, (ON CA), [1970] 3C.C.C. 124 (Ont. C.A.). Those facts may be summarized as follows. [8] On June 22, 2010 at 10:42 a.m., Li Fun Lu was outside of the corner store she owns and operates at 201 LambtonAvenue in Toronto when she noticed two adults by the names of Andrew McLennan and Kevin Woodley, together with Mr. C.,approach the store’s front doors. All wore clothing over their faces to conceal their identities.

A third adult by the name of ChristopherBramley sat behind the wheel of a nearby getaway car. [9] Ms. Lu followed the males into her store. Mr. McLennan produced what turned out to be an imitation firearm andpointed it at Ms. Lu’s head. He then pushed her inside of the store, all the while holding the handgun to her head. Once inside, Mr.McLennan demanded money and Mr. C. and Mr. Woodley ransacked the counter area of the store and obtained lottery tickets, cigarettesand cash. They stashed the items in a bag and then the two males fled from the store. [10] After Mr. C. and Mr.

Woodley had left the store, and for no apparent reason, Mr. McLennan kicked Ms. Lu on the rightside of her leg near her knee, causing her to fall to the floor. He punched her in the face several times with either the handgun or his fist,causing Ms. Lu to lose consciousness. She also sustained a bloody nose. Mr. McLennan then fled from the store, joining his accomplicesin the getaway car. To be clear, there is no evidence before me, circumstantial or direct, that Mr. C. was aware of the violenceperpetrated by Mr. McLennan upon Ms. Lu. [11] Ms.

Lu lost a total of $1,400 in cash from the store’s cash register and her own purse. According to Ms. Lu’s VictimImpact Statement, marked as Ex. 5B in these proceedings, she sustained a total loss of $2,600. [12] As was noted above, Ms. Lu was struck to the point of unconsciousness and she suffered a bloody nose. According to Ex.5B, Ms. Lu has felt dizzy for quite some time following the attack. Because she has not yet replaced the OHIP card which was takenduring the robbery, she has been unable to consult a doctor about her symptoms.

The horrific incident has caused her to feel very anxiousand nervous in her own store. She cannot work alone in the store and is fearful every time a customer walks in. In the result, Ms. Lu hassuffered from a loss of sleep, something that seldom happened before the incident. She has also lost ten to 15 pounds since the robbery. Iam prepared to infer that these symptoms are directly connected to the emotional turmoil caused by the assailants. [13] On June 23, 2010 at 8:25 a.m., Ms.

Min Fang Zhai, the owner and operator of the Lamezia Grocery Store at 2Brownstone Road, Toronto, was dealing with a sales representative by the name of Chris Hyunh at the front counter. At this time, Mr.McLennan entered the store and approached the counter, posing as a customer in search of cigarettes. He produced what turned out to bean imitation firearm and ordered Ms. Zhai and Mr. Hyunh to the floor. Mr. Woodley and another adult by the name of Daisha Lewis,

together with Mr. C., then entered the store. All of them wore hooded sweat tops and bandannas in an effort to conceal their identities. All the while, Mr. Bramley remained behind the wheel of a nearby car, ready to facilitate a quick departure from the scene for his accomplices. [ 14 ] Mr. C. immediately began to ransack the counter area, looking for cash and cigarettes. Mr. Hyunh was also searched for cash and valuables, though it is unclear on the record before me by whom. While Ms. Zhai was on the floor, and in the presence of Mr. C., Mr. McLennan struck her repeatedly about the face. Mr.

Hyunh was also struck about the face and kicked by several of the accomplices, though not by Mr. C.. [ 15 ] Ms. Zhai lost an unknown quantity of cash and cigarettes. Mr. Hyunh lost a laptop computer, $100 in cash and his wallet which contained several credit cards. By way of injuries, Ms. Zhai sustained a laceration to the face, together with a broken nose. Mr. Hyunh suffered a laceration and swelling to his face. [ 16 ] I have had the benefit of reading a Victim Impact Statement prepared by Ms. Zhai which was marked as Ex. 5A in these proceedings.

As a result of the fractured nose sustained during the robbery, Ms. Zhai suffers from a numbness to the area near her nose. This sensation is exacerbated during inclement weather. Following the incident, she has been very fearful whenever in her store, causing her to keep the door to her store locked until a customer appeared. At a loss as to how to run her business effectively, she closed it down two-and-a-half months following the robbery. She was unable to wind down her business and sell off her assets in a way that was profitable for her.

Further, she withdrew from neighbours and friends, unable to speak with them. [ 17 ] A mere twenty minutes following the robbery of Ms. Zhai, the same group of accomplices struck again. At 8:45 a.m., Yu Zhang, the owner of Winona Market Variety Store, located at 400 Winona Drive, Toronto, was working behind the counter when Mr. McLennan entered the store, talking on a cell phone and posing as a customer. Mr. Woodley, Ms. Lewis and Mr. C. followed suit, wearing hooded sweat tops and bandannas in an effort to conceal their identities. As before, Mr.

Bramley waited outside behind the wheel of a getaway car which, as it turned out, had been reported stolen sometime earlier. [ 18 ] Mr. McLennan produced a handgun and pushed Ms. Zhang to the floor while Mr. C. and his adult accomplices ransacked the counter area of the store in search of money and cigarettes. Once they obtained what has been described as a “small amount” of cash and cigarettes, they fled the store and took off in the car driven by Mr. Bramley. Fortunately Ms. Zhang did not sustain any physical injuries. [ 19 ] With respect to what motivated Mr.

C. to participate in these robberies, it would appear that he needed money to feed himself. III. Circumstances of the Offender [ 20 ] I have had the benefit of reading a Pre-Sentence Report, which was marked as Ex. 2 in these proceedings, and a psychiatric assessment prepared by Dr. Bassarath of the Centre for Addiction and Mental Health, which was marked as Ex. 3 in these proceedings. In combination they, together with the submissions of Mr. Michael, have painted a complex picture of Mr. C.. [ 21 ] At the time of the impugned offences, Mr. C. was several days shy of his 16 th birthday.

He is now 16. [ 22 ] To put it simply, Mr. C. has endured a troubling life. [ 23 ] Mr. C. has what he describes as a good relationship with both of his parents and I note that his mother, Ms. Grubb-C., is consistently in Court with her son. Mr. C. has one older sister who has also attended Court to support him, and two half-brothers. Mr. C.’ parents separated when he was four years old. Mr. C.’ mother noticed a change in her son’s behaviour which coincided with his parents’ separation. He became very angry. It would appear that Mr. C. was unable to express his anger in an appropriate, healthy way.

Instead, he would let it build up inside of him until he exploded. That anger manifested itself with Mr. C.’ lashing out physically at school and towards his mother at home. Very early on Ms. Grubb-C. found it impossible to control her son’s anger and, even when he was a child, she would call the police for assistance. [ 24 ] To Ms. Grubb-C.’ credit, she sought help for her son’s behaviour. When Mr. C. was seven, he was assessed at the Centre for Addiction and Mental Health in relation to, in part, a fire started by Mr. C.. He was referred to The Arson Prevention Program at CAMH.

He also participated in an after-school anger management program offered at Simpson House. At the age of nine, Mr. C. was, following an incident involving police intervention, admitted to Youthdale Treatment Centre where he remained for two weeks. This residential placement was, according to Ms. Grubb-C., traumatic for her son. Around the age of 11, following another serious angry outburst, Mr. C. was admitted to the C.town Treatment Centre in Caledon to address his anger and social behaviour problems. He spent 14 months in that residential program. Mr.

C. found it challenging to live there, interacting with other youth with whom he felt he had nothing in common on various levels. Though he was to come home following his release from C.town, he continued to display “out-of- control behaviour” and, thus, was transferred to Hanrahan Group Home in Brampton where he remained up until his arrest for the charges before the Court. He has been variously diagnosed as having a Separation Anxiety Disorder, a Conduct Disorder and an Oppositional Defiance Disorder. [ 25 ] Regrettably, the interventions described above have not proven entirely favourable. According to Ms.

Grubb-C., her son’s anger is now much more contained. However, the ongoing disruption to Mr. C.’ life has caused him to feel uprooted, alienated and, as Mr. Michael has put it on behalf of his client, “institutionalized”. He has, understandably, found it annoying to have to repeat his life story to strangers. In the result, he is untrusting of those in the very position to help him. He told the author of Ex. 2 that “these interventions sometimes made him feel more angry and upset”. He advised the probation officer that “he does not like change, especially having been moved around frequently throughout his life”.

The adverse impact of intervention by community agencies is best summed up by Cheryl White, Mr. M.s’ former probation officer, who indicated to the author of Ex. 3: … M. has gone through so many assessments and hospitals that he is now less trusting of people. He is very guarded and protective of his personal story…

[26] The Children’s Aid Society of Toronto became involved with the family in 2003. Four years later, Mr. C. became aCrown Ward, essentially because Ms. G.-C. felt she could not control her son. According to Ex. 2, Mr. C. was upset about becoming aCrown Ward. However, he accepted responsibility for his behaviour which ultimately led to that decision. According to the CAS, Mr. C.has persistently run from placements. When he runs, he is typically gone for lengthy periods of time and then is ultimately picked up bythe police for committing crimes to assist him in surviving on the street.

It is the position of the defence that the instant offences werecommitted for this very reason. [27] Mr. C.’s experience in school has been less than favourable. Between 2001 and 2008, he has been suspended from schoolon 18 different occasions, mostly for fighting and assaults. His OSR contains Incident Reports which speak to his “refusal to complywith adult instruction, destruction of school property and aggression towards others”. He has been moved from school to school in aneffort to accommodate and manage his needs.

In 2003 he was identified as “exceptional with a behaviour designation” by a TorontoDistrict School Board In-School Placement and Review Committee. As a result he was the subject of constant supervision at school by aChild and Youth Worker and was placed in special education classes. Prior to his incarceration for the offences before the Court forsentencing, Mr. C. had only two grade 9 credits. [28] With respect to substance abuse, Mr. C. has indicated that he was introduced to marijuana two years ago and makesregular use of it.

It makes him feel good and he does not regard his consumption as problematic, notwithstanding that he has appeared tohave been under the influence of a narcotic while attending school and appointments with his probation officer. It would appear that Mr.C.’s marijuana use is a form of self-medication. In addition to coping with anger, Mr. C. has had to cope with personal losses. Iunderstand that in addition to losing both of his paternal grandparents, two of his friends have been fatally shot within the past year or so.I also note that Ms.

G.-C. is of the view that her son has unresolved feelings regarding her separation from his father. [29] Both Mr. C.’s mother and his social worker at Children’s Aid have concerns about the company that Mr. C. has kept.Similarly, a report generated while he served a sentence at the York Detention Centre in 2009 indicated that he could be easilyinfluenced, in a negative way, by his peers. These concerns appear to have been borne out given that Mr.

C. was in the company of anumber of adults when he committed the offences before the Court. [30] It is, perhaps, somewhat unsurprising in light of the various challenges that Mr. C. has faced that he does not come beforethe Court as a first offender. A copy of his Youth Court Record was marked as Ex. 1 in these proceedings. He has a finding of guilt forrobbery, dating back to June 2009 for which he received a 30-day custody and supervision order, followed by two years of probation anda two-year weapons prohibition.

He also has entries for property-related offences, failing to comply with court orders and beingunlawfully at large. His last entry dates back to February 2010, just four months before the commission of the offences before the Courtfor sentencing. It is of concern to the Court that Mr. C. has self-identified as impulsive and that he sometimes enjoys taking risks.Further, he advised the author of Ex. 3 that “he gets a ‘bit of an adrenaline rush’ from committing the crimes and only likes the money heacquires.” It is also of concern that reports have indicated that, in the past, Mr.

C. has demonstrated little remorse for how he has treatedothers. As a result of psychological testing performed as an aspect of the § 34 YCJA assessment ordered in anticipation of this sentencing,Mr. C. was deemed to be at high risk for general reoffending at the time of this assessment. I noted that Mr. C. presented to the author ofEx. 3 as “fairly narcissistic” and, as observed by Dr. Bassarath, “there may be at least a trace of egocentricity at play here”. [31] The above

summary paints an unfavourable picture of Mr. C.. However this

summary also paints an incomplete portraitof Mr. C.. I say this because more recently, Mr. C. has demonstrated a marked improvement in attitude and behaviour reflective of thatnew attitude. [32] Though Mr. C. did not have an exemplary start at the Roy McMurtry Youth Centre, the staff at the Centre have reportednoticeable improvement. He no longer gets into confrontations. He is successfully achieving grade 9 and 10 credits. He no longerpresents as confrontational with staff or peers. Mr.

C. is showing leadership qualities and is volunteering to participate in variousprograms directed at anger management, developing job searching skills and learning Spanish. He is participating in spiritual programswhich draw upon Aboriginal traditions and teachings and he is pursuing yoga. He has worked towards completing outstandingcommunity service hours by completing a series of written assignments. His probation officer praised the quality of these assignmentsand the new insight that they reflect. Put simply, he is showing that he can succeed. [33] As for the future, Mr.

C. is of the view that criminal activity is “not his thing anymore”. He wants to finish high schooland possibly pursue a college program. He has a very specific goal of returning to live with his mother, at least until he settles into thecommunity, and then hopes to live on his own with his mother’s support. He has expressed a willingness, at least to his probation officerand through counsel to the Court, to accept counselling to assist him in those areas where he needs help. IV. Serious Violent Offence Designation Application 1.

Overview of the Relevant Law [34] Pursuant to § 42(9) of the Youth Criminal Justice Act, the Crown has applied, over the objection of the defence, to havethe two counts of robbery of which Mr. C. has been found guilty designated as Serious Violent Offences. A “Serious Violent Offence” isdefined in § 2(2) YCJA as “an offence in the commission of which a young person causes or attempts to cause serious bodily harm”. TheCrown bears the burden to prove, beyond a reasonable doubt, that an offence ought to be so designated. See: R. v. K.G.B., 2005 NBCA96 , [2005] N.B.J. No. 433 (C.A.) and R. v. D.N., [2007] A.J.

No. 1271 (C.A.). The Ontario Court of Appeal has drawn ananalogy between an SVO designation hearing and a Gardiner hearing where, of course, the Crown bears the persuasive burden ofproving an aggravating factor on sentence beyond a reasonable doubt. See: R. v. V.W., 2008 ONCA 55 , [2008] O.J. No. 234(C.A.) at ¶ 25 ff. [35] The implications of designating an offence as a “Serious Violent Offence” are threefold:

(1) It removes a deferred custody and supervision order as a sentencing option. See: ¶ 42(5)(

a) YCJA;

(2) In some cases, it opens up the availability of an intensive rehabilitative custody and supervision order. See: ¶ 42(2)(

r) and § 42(7)

YCJA; and

(3) In some cases, it opens up the availability of an adult sentence. See: ¶ 2(1)(

b) and 62(

a) YCJA.[1] [36] In Mr. C.’s particular circumstances, an SVO designation would preclude the Court from acceding to his request for adeferred custody and supervision order and it would set in motion the potential availability of an adult sentence down the road, should hebe found guilty of a third offence in relation to which an SVO designation is made and an adult sentence is otherwise, in law, available. [37] In its recent decision, R. v. K.C., 2011 ONCA 257 , [2011] O.J.

No. 1478 (C.A.), the Ontario Court of Appealhas clarified the analytical framework that sentencing judges in this province must apply to these applications. The test to be applied, as itrelates to the circumstances of Mr. C.’s case, may be summarized as follows:

(1) Is there evidence of serious bodily harm?

(2) If so, is there evidence that Mr. C. caused the serious bodily harm? and

(3) If so, is an SVO designation necessary to hold the young person accountable for his offence(s), having regard to the purposes andprinciples of sentencing under the YCJA, and the circumstances of the offence(

s) and of Mr. C.. [38] The Court divided the analytical framework into two phases. During the first phase, the sentencing judge must considerissues “(1)” and “(2)”, supra. The Court of Appeal in R. v. K.C., supra, referred to this phase as the threshold for designating an offenceas a serious violent offence. Once satisfied that there is evidence of serious bodily harm and that the subject of the application caused, inlaw, that harm, the sentencing judge has no discretion as to whether or not to conclude that this initial threshold has been met. See: R. v.K.C., supra, at ¶ 91.

However, once the Court is satisfied that the threshold established by the definition of a Serious Violent Offence in§ 2(2) YCJA has been met, the Court does have a discretion concerning whether or not to make the designation. See: R. v. K.C., supra, at¶ 45 – 46. [39] It is common ground between the parties that Mr. C. did not personally perpetrate any of the actual violence against therobbery victims. However, the decision in R. v. K.C., supra, confirms that an SVO designation may be appropriate in relation to anoffender who is a party to the underlying offence which results in serious bodily harm. See: R. v.

K.C., supra, at ¶ 58 – 59. This issue oflegal causation will be discussed further infra. [40] I will now address each component of the test. [41] As confirmed in R. v. C.D., 2005 SCC 78 , [2005] S.C.J.

No. 79 at ¶ 20, “serious bodily harm” in the context of a“Serious Violent Offence” is defined as: any hurt or injury, whether physical or psychological that interferes in a substantial way with the physical or psychological integrity,health or well-being of the complainant. [42] The issue of factual and legal causation between a young person and the impugned serious bodily harm is straightforwardwhen the subject of the application actually perpetrates the serious bodily harm. The issue is more complex when a party to theunderlying offence which resulted in serious bodily is the application’s subject matter.

The relevant test was addressed by the OntarioCourt of Appeal in R. v. K.C., supra. The Court clarified that in order to establish legal causation, the Crown need not satisfy a (1) directcontributing cause or substantial cause test; or (2) a sufficient nexus between the actions of the person charged as a party to the offenceand the bodily harm caused. See: R. v. K.C., supra, at ¶ 61 and 68. Instead, the Court held at ¶ 61 of its Reasons for Judgment that asignificant contributing cause test was sufficient.

That test is framed as a contributing cause “outside the de minimus range” or acontributing cause that is “not trivial or insignificant”. Indeed, the Ontario Court of Appeal in R. v. K.C. greatly distilled the test inholding, at ¶ 83 of its Reasons, that where the young person’s actions amount to aiding his or her fellow assailant in committing anoffence that ultimately caused serious bodily harm, causation for the purposes of the SVO designation threshold has been met. [43] In R. v.

K.C., supra, Simmons J.A., who authored the Court’s unanimous decision, declined to resolve the issue ofwhether or not at the threshold stage of the analysis, the sentencing judge must also consider whether the young person had some levelof foreseeability of serious bodily harm.

This, of course represents an element of moral blameworthiness on the part of the young person.Put another way, the Court left for another day the determination of whether actual or reasonable foreseeability of harm ought to be apre-requisite that the Crown must satisfy in order to clear the threshold standard. [44] Sub-section 2(2) of the YCJA does not define serious violent offence as “an offence in the commission of which a youngperson intends to cause or attempts to cause serious bodily harm”.

In my respectful view, the omission of any requirement of specificintent would support the inference that no subjective foreseeability of harm need be established in order to satisfy the thresholddefinition. Assuming, without deciding, that some level of foreseeability of harm is required for the threshold to be satisfied, I wouldthink that a standard of reasonable foreseeability would be consistent with the definition’s wording. In determining whether that standardhas been met, the Court ought to consider factors, which include the following:

(1) The offence’s modus operandi, including whether or not a weapon was used and, if so, the nature of that weapon;

(2) The young person’s role within the subject offence;

(3) The young person’s opportunity to realize the risk of harm to the victims;

(4) The number of offences in which the young person participated; and

(5) Any efforts by the young person to intervene to assist the victim or to desist from participating in the offence.

[45] Once the threshold definition is satisfied, the sentencing judge must then proceed to consider the broader issue: Is itnecessary to make an SVO designation in order to hold the young person accountable for his or her actions. The more difficult issue isidentifying what factors the sentencing judge ought to consider as he or she exercises its discretion in this regard. The Court of Appeal inR. v. K.C., supra, indicated that the question to be answered at this phase “could bring into play the whole panoply of factors relevant toyouth sentencing”. See: R. v. K.C., supra, at ¶ 78.

The Court went on to identify three categories of relevant factors: (1) thecircumstances of the offence, including the young person’s level or moral blameworthiness; (2) the circumstances of the young person,including the young person’s efforts at rehabilitation between the offence and the date of sentencing and the young person’s level of riskof re-offending; and (3) the purposes and principles of sentencing under the Youth Criminal Justice Act, including those set out in § 3 and38 of the Act.

Before identifying what factors might properly fall within each of the three categories, it is equally important to identifywhat, in my respectful view, is an irrelevant factor to this exercise of discretion. [46] Counsel for the Crown in these proceedings argued that the Ontario Court of Appeal in R. v.

K.C., supra, was, by settingthe test at phase two so broadly, effectively inviting sentencing courts to determine what sentence ought to be imposed upon the youngperson before deciding or, at the very least, at the same time as deciding, whether an SVO designation was necessary to hold the youngperson accountable for his or her actions. Given that the Court has worded the test regarding the appropriateness of an SVO designationas being identical to that which must be resolved when deciding the ultimate issue of sentence, there is a certain appeal to Mr. Lockhart’sargument.

However, for the following reasons, I have concluded that the Court of Appeal did not intend this outcome:

(1) No where in the Reasons for Judgment does Simmons J.A. expressly indicate that the procedures for determining theappropriateness of an SVO designation and for determining the ultimate sentence ought to be conflated. Indeed, the Court does notaddress this issue head on in R. v. K.C., supra;

(2) Though the Ontario Court of Appeal in R. v. V.W., 2008 ONCA 55 , [2008] O.J. No. 234 (C.A.) held at ¶ 17 that an SVOdesignation forms part of a young person’s sentence, the Court also recognized at ¶ 24 that the application for an SVO designation is a“discrete process”;

(3) As to the order in which the issues ought to be decided, the wording of § 42(5) YCJA supports the inference that the appropriatenessof an SVO designation ought to be resolved before the issue of sentence. I note, by way of example, that § 42(5) effectively provides thata deferred custody and supervision order is available only in relation to an offence which has not been designated a serious violentoffence. Clearly, the designation is the trigger or pre-condition for the unavailability of the deferred custody and supervision order.

It isnot as if the Act stipulates that an SVO designation is unavailable if a deferred custody and supervision is imposed. Put another way, thelatter does not serve to trigger the unavailability of the former;

(4) As an extension of “(3)”, supra, the following point bears mentioning: To hold the view that the appropriate sentence ought to beidentified before the appropriateness of an SVO designation is determined is to assume that the issue of ultimate sentence is dispositiveof the issue as to the appropriateness of an SVO designation. It is accurate to say that by operation of § 42(5) YCJA, a deferred custodyand supervision order cannot co-exist with an SVO designation.

If the implication of § 42(5) were that an SVO designation could onlyco-exist with some form of a custody and supervision order, then the Crown’s argument would have appeal. Indeed, the Alberta Court ofAppeal in its decision, R. v. P.K.K., [2006] A.J. No. 1 (C.A.) at ¶ 17, has stated that by barring the availability of a deferred custody andsupervision order for a designated serious violent offence, the Act implies that, generally speaking, a more serious sentence is warranted: The sentencing reasons noted that the Act bars a deferred custody sentence for a serious violent offence (S.A.B. pp. 77 – 78).

One wouldthink that that was an indication that such a sentence would be too light or inadequate in such cases. Yet the sentencing reasons, withoutmuch discussion of that roadblock, simply stepped down to a lower sentence, probation (with community service). We need not decidewhether such a step down is always contrary to law. But the implication of the Act is that often the statutory bar to one type of sentencefor a serious violent offence suggests a heavier sentence. Therefore, such a heavier sentence should be seriously considered, and reasonsbe offered if it is not adopted. That was not really done here.

Discussing the sentence in general without considering the significance ofthe statutory bar for a serious violent offence, is not sufficient. [emphasis added] The Ontario Court of Appeal in R. v. K.C., supra, at ¶ 26 addressed the issue left undecided in R. v. P.K.K., supra and concluded that inexceptional cases a non-custodial sentence could be sufficient to hold a young person accountable for an offence formally designated as aSerious Violent Offence. The Court earlier recognized that a designated Serious Violent Offence could co-exist with a non-custodialsentence in R. v. K.L., [2009] O.J.

No. 3252 (C.A.) at ¶ 8. What this means is that the determination of sentence is not necessarilydeterminative of the outcome of an SVO application. Put another way, where, for example, a Court were to determine, within theanalytical framework suggested by the Crown, that probation is the least restrictive sentence available, it still must go on to determinewhether or not the offence for which the young person is being sentenced ought to be designated a serious violent offence. The outcomeof that analysis would not be a foregone conclusion merely on the basis of the conclusion as to sentence.

In my view, the more logicalapproach is to determine whether, in all of the circumstances, a serious violent offence designation is warranted, and then proceed to aconsideration of the appropriate sentence;

(5) An SVO designation has been viewed by some sentencing judges as an aggravating factor on sentence. See, e.g., R. v. T.B.W., 2003BCPC 256 , [2003] B.C.J. No. 1731 (Prov. Ct.) at ¶ 9 ff and R. v. K.W.W., 2004 BCPC 352 , [2004] B.C.J. No. 1997(Prov. Ct.) at ¶ 40 ff. Indeed, the Ontario Court of Appeal in R. v. V.W., supra at ¶ 25 ff, drew an analogy between a Gardiner hearingand an application for an SVO designation. It is, thus, not surprising that the Alberta Court of Appeal in R. v. D.N., supra and the NewBrunswick Court of Appeal in R. v.

K.G.B., supra, have held that the Crown bears the burden of proving the appropriateness of an SVOdesignation beyond a reasonable doubt. When characterized as an aggravating factor on sentence, it makes logical sense that the issue ofits appropriateness be resolved in advance, and independent, of any decision as to the ultimate sentence;

(6) To entirely conflate the process of sentencing with that of determining the appropriateness of an SVO designation is to deny that thedesignation, in and of itself, has value in holding the young person accountable for his or her actions, separate and apart from the ultimatesentence imposed. Labels and categories, in and of themselves, do have a value in a sentencing context. In my respectful view, themaking of the designation, wholly apart from any reference to its implications, can serve, for example, to promote a sense ofresponsibility in the young person and an acknowledgement of the harm done to his or her victim(

s) and the community, a principle of

sentencing expressly stipulated in ¶ 38(2)(e)(iii) YCJA; and

(7) The position advanced by Crown counsel invites the Court to engage in an analysis suggestive of “end reasoning”. This approach tolegal reasoning has never been condoned. Indeed, no appellate Court has suggested that a sentencing judge ought to decide, for example,that a custody and supervision order is warranted and then go on to define one of the gateways to custody set out in § 39 YCJA in afashion that retrospectively justifies, in law, the sentence.

That a sentencing judge should consider the appropriateness of an SVOdesignation without any regard for the implication of its decision was best explained by the New Brunswick Court of Appeal in R. v.K.G.B., supra, at ¶ 27 where it held: The determination of whether a particular offence was committed in circumstances in which a young person causes or attempts to causeany hurt of injury, whether physical or psychological, that interferes to a substantial degree with the physical or psychological integrity,health or well-being of a victim, is a determination that, in my view, must be made without regard to the impact it might have on thesentence to be imposed.

Just as the law would not condone a finding that an offender is not guilty simply as a means to justify notwanting to impose a mandatory sentence, so too should the determination of whether an offence is a serious violent offence may be madeindependently of the repercussions the determination may have for the offence. [47] Having concluded that the issue of the appropriateness of an SVO designation in a particular case ought to be resolvedwholly apart from the implication(

s) of such a decision, it is now appropriate to set out those factors which are relevant. As noted above,the Ontario Court of Appeal in R. v.

K.C., supra, identified three categories of factors: (1) the circumstances of the offence, including theyoung person’s level or moral blameworthiness; (2) the circumstances of the young person, including the young person’s efforts atrehabilitation between the offence and the date of sentencing and the young person’s level of risk of re-offending; and (3) the purposesand principles of sentencing under the Youth Criminal Justice Act, including those set out in § 3 and 38 of the Act. The third category isself-explanatory and is fleshed out directly by the provisions of the Act.

The first and second categories merit further discussion. [48] With respect to the circumstances of the offence, I have found the factors listed by MacLean J. in R. v. E.F., 2007 ONCJ113 , [2007] O.J. No. 1000 (Ct. Just.) at ¶ 46 to be very helpful. Having regard to the comments of the Ontario Court of Appealin R. v. K.C., supra, and of MacLean J. in R. v. E.F., supra, I have identified the following as a non-exhaustive list of relevant factorsappropriate to the category of “Circumstances of the Offence”: (1) the young person’s level of moral blameworthiness: a.

Did he or she have subjective foresight that the offence in which he or she participated would likely cause serious bodilyharm? b. Was the foreseeability of harm reasonable? c. What was the young person’s mental state at the time of the offence, having regard to his or her cognitive, emotional orbehavioural limitations, or any ongoing pattern of reckless conduct, as it relates to the commission of the instant offence? d. Was the young person subject to any degree of coercion short of duress?

(2) The young person’s motive in committing the offence;

(3) The young person’s degree of participation in the offence;

(4) The degree of physical and psychological or emotional harm done to the victim and the community;

(5) Whether the victim is a vulnerable member of the community, having regard to, for example, his or her age, disability or position ofemployment;

(6) Whether a weapon was used in the commission of the offence and, if so, the type of weapon used;

(7) The context in which the offence occurred and the way in which the offence was committed: a. Was the offence premeditated or predatory in nature, as opposed to impulsive? b. Was there a threat of violence? c. Was there gratuitous violence? d. Was the offence the product of provocation and, if so, was the response disproportionate? e. Was the offence the product of excessive self-defence or the defence of another? f. Did the offence involve a reckless disregard for public safety?

(8) Whether the offence was an isolated incident or part of a pattern of offences. [49] With respect to the circumstances of the offender, I have again drawn upon the decisions in R. v. K.C., supra and R. v.E.F., supra, to identify the following as a non-exhaustive list of factors relevant to the category of “Circumstances of the Offender”:

(1) The young person’s age;

(2) The young person’s antecedents, including:

a. Physiological, behavioural, psycho-educational, psychological, or psychiatric diagnoses; b. History of substance abuse; c. Level of formal education; d. His or her own victimization as a result of emotional, physical or sexual abuse and/or neglect; and e. Previous findings of guilt;

(3) The young person’s efforts at rehabilitation between the offence and the date of sentencing;

(4) The level of risk of re-offending/prospects for rehabilitation, having regard to: a. A formal risk assessment; b. Level of remorse for, and insight into the offence, including its causes and consequences; c. Degree of family and community support available to the young person; and d. Response to supervision, whether in a custodial or non-custodial setting;

(5) Any reparation made by the young person to the victim(

s) or the community, including a letter of apology, participation in amediation, restitution and community service; and

(6) Time spent in pre-trial detention. [50] The appellate authorities have had little opportunity to canvas the scope of appropriate evidence which may serve as afactual foundation for an SVO designation application. The Ontario Court of Appeal in R. v. V.W., 2008 ONCA 55 , [2008] O.J.No. 234 (C.A.) has held that a Victim Impact Statement can provide the necessary evidentiary foundation for the designation. Certainlythis form of evidence can assist with the determination of whether the victim has suffered “serious bodily harm”.

However, with a moreexpansive test as to the appropriateness of an SVO designation comes the need for a broader range in available evidentiary sources. Inmy respectful view, these sources can include:

(1) The facts agreed to by the young person or otherwise proven by the Crown during the course of a trial or Gardiner hearing;

(2) Any proferred Victim Impact Statement or vive voce evidence derived during the cross-examination of its author as permitted inaccordance with the limitations proscribed in R. v. V.W., supra, at ¶ 29 – 30;

(3) Any Court-ordered reports, including a Pre-Sentence Report or a psychological or psychiatric assessment, subject to the resolutionof any objection to such use where the report was ordered over the objection of the defence;

(4) Progress/Behavioural reports from detention facilities;

(5) Documentation tendered by the defence, including: a. Proof of successful participation in rehabilitative and/or educational programmes; b. Proof of efforts towards reparation, including a letter of apology addressed to the victim and community service; c. Character letters; d. A letter authored by the young person reflecting, for example, his or her insight into his behaviour, degree of remorse, and theunderlying motive for the offence; e. Confirmation of future enrolment in rehabilitative and/or educational programmes; and

(6) Viva voce evidence or less formal input from a parent/guardian and/or surety regarding the young person’s post-offence behaviourand/or attitude and insight. 2. Application of the Law to the Facts [51] The factual foundation for this application was fulsome. In addition to the facts agreed to on the guilty plea, I had thebenefit of reviewing Victim Impact Statements, a Pre-Sentence Report, an assessment ordered pursuant to § 34 of the Youth CriminalJustice Act, a letter authored by Mr.

C. which included an apology to his victims and reflected his insight into his offences, and variousreports from The Roy McMurtry Centre regarding his post-offence progress while in custody. The defence took no objection to myconsideration of all of this material for the purposes of considering the Crown’s application.

Indeed, both parties relied on these materialsto bolster their respective positions, either by relying upon particular content and/or inviting the court to draw certain inferences from thecontent. [52] Having reviewed all of this material, together with the helpful submissions of counsel, I have concluded that the Crownhas, in relation to each offence, met its burden of proof in respect of each element of the relevant test.

(1) Evidence of Serious Bodily Harm

[53] Li Fun Lu lost consciousness during her attack. She also sustained a bloody nose. She suffered from dizziness for quitesome time following the incident. In my view, these physical manifestations of the violence are sufficient to amount to a physical injurythat interfered in a substantial way with the physical integrity health or well-being of Ms. Lu. I am also satisfied that she suffered apsychological injury that interfered in a substantial way with her psychological integrity.

In this regard, I noted that following therobbery, she has suffered an ongoing degree of fear and anxiety that has resulted in reduced sleep and a loss of weight. There can be nodoubt this psychological harm is the product of both the use of the imitation firearm and by the physical assault upon her. [54] Ming Fang Zhai suffered a fractured nose during her attack. She has suffered from an ongoing numbness to the areaaround her nose.

By way of psychological harm, I note that she suffered from an ongoing fear of such a degree that she could no longerfunction as a shopkeeper and had to sell her business within several months following the incident. I am satisfied that she suffered both aphysical injury that interfered in a substantial way with her physical integrity and a psychological injury that interfered in a substantialway with her psychological integrity. Once again, there can be no doubt that this psychological harm is the product of both the use of theimitation firearm and by the physical assault upon her.

(2) Did Mr. C. cause the Serious Bodily Harm [55] As noted above, it is common ground between the parties that in neither of the robberies did Mr. C. carry the weapon orpersonally perpetrate any of the actual harm. However, he was an integral participant within a group who perpetrated a series of armedrobbery. In each incident, he was responsible for collecting the property,

an act made possible in each incident as a result of thebrandishing of a weapon by another member of that group and, in the case of Ms. Zhai, by the physical attack upon her. Clearly, in eachincident, he participated in an offence where serious bodily harm resulted. Further, I note that he was present each time that the imitationfirearm was used by his accomplice. Knowledge of the use of the firearm during the first robbery did not deter him from participating inthe second and third robberies.

Indeed, it is noteworthy that his first hand knowledge, acquired during the second robbery, that hisaccomplice was prepared to perpetrate physical violence upon the victim did not deter him from participating in the third robbery. Thechoices that Mr. C. made support the irresistible inference that, all along, he was quite prepared to participate in armed robberies,notwithstanding the obvious risk that harm would come to the victims. Finally, I note that at no time did he intervene to assist any of thevictims of any of the robberies. [56] Mr.

C. acknowledged in a letter he authored, and which was marked as Exhibit 4 on sentence, that, in all of thecircumstances, he ought to have known that harm could come to the robbery victims. I am satisfied that this acknowledgement takentogether with the other factors set out above represents an admission of moral blameworthiness sufficient to satisfy the thresholddefinition of a serious violent offence as set out in §2(2) YCJA. This admission, taken together with the other factors set out above amplysupports the conclusion that Mr. C., in law, caused the serious bodily harm sustained by Ms. Lu and Ms. Zhai.

(3) Is an SVO Designation Necessary to Hold Mr. C. accountable for the Offence(s) [57] For the following reasons, I am satisfied that an SVO designation in respect of each offence is necessary to hold Mr. C.accountable for his actions:

(1) Each robbery involved the use of an imitation firearm, a weapon which was clearly used for the purpose of instilling fear andintimidation in each victim;

(2) The victims, by virtue of their choice of employment, were particularly vulnerable;

(3) Each robbery involved the infliction of serious physical and psychological harm. The impact on each victim has been extensive andwide-ranging;

(4) Having regard to the presence of a weapon and disguises, each robbery was the product of planning and not the spontaneousexercise of poor judgement;

(5) Having regard to the young person’s willingness to continue his participation in the string of robberies, notwithstanding his first-hand knowledge of the use of an imitation firearm and the likelihood of the infliction of actual physical harm, Mr. C.’ level of moralblameworthiness was high in respect of each robbery of which he has been found guilty;

(6) At the time these offences Mr. C. participated in these offences, he was on probation for another robbery of which he had earlierbeen found guilty;

(7) Mr. C. has not demonstrated that he consistently responds well to supervision, whether in the community or a custodial setting; [58] I have been mindful of the tremendous challenges Mr. C. has faced growing up. I have also been mindful of the progresshe has made, albeit towards the end of his period of pre-trial detention, towards his rehabilitation. It is clear that he is slowly gaininginsight into his behaviour and attitudes and is capable of victim empathy and expressing remorse for his actions.

However, theaggravating features of each robbery are such that, on balance, an SVO designation for each is necessary to hold Mr. C. accountable forhis actions and, in particular, to promote a sense of responsibility in him and an acknowledgement of the harm done to the robberyvictims and the community at large. Accordingly, the Crown’s application is allowed and each robbery will be designated a SeriousViolent Offence. V.

Relevant Sentencing Principles [59] The fundamental purpose of sentencing a young person is to hold him accountable for his offences through the impositionof just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration intosociety, thereby contributing to the long-term protection of the public. [60] The concept of “accountability” was discussed by the Ontario Court of Appeal in R. v. A.O., 2007 ONCA 144 ,

[2007] O.J. No. 800 at ¶ 47 of its decision as follows: …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. [ 61 ] I have also borne in mind that the sentence I impose must be proportionate to the seriousness of the offences and the young person’s degree of responsibility for them. The sentence must promote a sense of responsibility in the young person and represent an acknowledgement of the harm done to the particular victims and to the community at large. [ 62 ] I must ensure that that the sentence I impose today is in keeping with those imposed on similar offenders, in similar circumstances.

Further, I must ensure that the sentence I impose represents the least the restrictive sentence that is capable of achieving the fundamental purpose earlier identified. Even if I conclude that nothing short of a sentence of imprisonment is capable of achieving the relevant principles of sentencing, I must ensure that its length and the form it takes is the least restrictive means of achieving its underlying goals. V.

Summary of Aggravating and Mitigating Factors [ 63 ] The parties have presented a range as to the appropriate sentence. I agree that a fit and just sentence falls somewhere within that proposed range. Where exactly the appropriate sentence falls is a function, in part, of the aggravating and mitigating circumstances of the young person and his offences. Aggravating factors are those that push the appropriate and just sentence towards the higher end of the range. Mitigating factors are those that push the appropriate and just sentence towards the lower end of the range. [ 64 ] I will begin with a

summary of the aggravating factors.

(1) Each of the three store keepers are a member of a group of particularly vulnerable victims. They are known to work alone and, by the very nature of their business, must have a certain amount of cash on hand;

(2) These offences were not the product of a spontaneous exercise of poor judgement. Instead, they comprised a planned and deliberate spree over the course of two days;

(3) The robberies were perpetrated with an imitation firearm. While I appreciate that the risk of harm is diminished by virtue of the fact that the weapon used was not an actual firearm, I am confident that that made little difference to the victims who, no doubt, were terrified when they say a handgun brandished in their faces;

(4) One or more adults involved in the robberies with Mr. C. perpetrated gratuitous violence with serious implications for their victims. The victims also suffered significant and lasting psychological harm;

(5) The sheer number of incidents is of particular concern to the Court as it is clear that the experience of the first incident did not deter Mr. C. from engaging in the subsequent ones. It is all the more troubling that Mr. C., having just witnessed the gratuitous violence perpetrated upon Ms. Zhai and Mr. Hyunh, was nonetheless prepared to continue with his crime spree and, mere minutes later, participate in the third robbery, this time of Ms. Zhang;

(6) At the material time, Mr. C. was the subject of three different probation orders which necessarily required that he keep the peace and be of good behaviour. His actions in defiance of this requirement suggest a lack of respect for court orders. They also serve as an indicator that Mr. C. has not been a good candidate for community supervision. This conclusion is all the more bolstered by the fact that Mr. C. has two findings of guilt for failing to comply with the terms of his bail and one count of being unlawfully at large dating back to June of 2009, and one count of failing to comply with a youth court sentence, dating back to February of 2010; and

(7) Mr. C. has a youth court record which includes a prior entry for robbery, an offence in relation to which he was the subject of one of the three probation orders noted above; [ 65 ] To be fair to Mr. C., it is important to point out the absence of a number of aggravating factors. In particular, I note that at no time did Mr. C. brandish the imitation firearm used during these offences and at no time did he personally perpetrate any of the violence upon the four victims described above. As he clearly expressed to the author of Ex. 3, at no time did he intend anyone to get hurt.

However, as quite properly noted in his letter of apology to the Court, Mr. C. acknowledged that he “should have seen that doing something so risky could have resulted in someone getting hurt”. [ 66 ] I will now turn to a

summary of the mitigating factors.

(1) Mr. C. has pled guilty to these offences. This signifies an acceptance of responsibility for his actions. The Court was very impressed by what appears to be genuine words of remorse expressed in Mr. C.’ letter to the Court which was marked as Ex. 4. Those words reflect a great deal of thought and a maturity that the Court does not often see in the young people who appear before it. Moreover, those words appear to represent a turning point for Mr. C. who has gained a degree of insight into his actions while he has been in custody on these charges. These words tell me that there is much hope for this young man and that he is by no means a lost cause;

(2) Mr. C. has served 10.5 months of pre-trial detention. Accounting for appropriate credit for this period of custody, it means that Mr. C. has already served the equivalent of a 15.75 month secure custody sentence;

(3) Mr. C. was the only young person in the company of a group of adult assailants. I am prepared to conclude that his participation in these offences was, in part, due to negative peer influences, particularly in light of his previous vulnerability, identified by others who know him, to such influences;

(4) While in secure custody, Mr. C. has made meaningful progress. The nature of his interaction with staff and peers has continued to

improve. He has done well in counselling and at school. He presents open to further counselling. This progress bodes well for his prospects at rehabilitation; and

(5) Mr. C. enjoys the support of his mother who clearly wants what is best for him. She presents as resourceful and willing to reach out for professional guidance to help her help her son when she cannot do so on her own. It is also clear that Mr. C. loves his mother very much and wants to reunite with her and improve their relationship. This support that his mother can provide also bodes well for Mr. C.’ prospects for rehabilitation. VI. Conclusion [ 67 ] The offences before the Court are very serious. They involve the perpetration of actual violence together with the use of an imitation firearm.

The victims were, by virtue of their employment, vulnerable and the impact of these offences upon them has been extensive as to nature and degree. The Crown’s position as to a global sentence is not unreasonable. Having balanced the various aggravating and mitigating factors, I have concluded that the time spent in custody, to date, is not sufficient to hold Mr. C. accountable for his actions. This period of custody does not adequately reflect the gravamen of the offences, the harm down to the victims or Mr. C.’ degree of moral blameworthiness. A further period of custody is warranted.

However, the Court recognizes the tremendous progress that Mr. C. has made in custody. Given the personal challenges that Mr. C. has faced in the past, this progress is impressive and bespeaks a level of hope for his future. Indeed, while the period of pre-trial detention has contributed to holding him accountable for his actions, in general, it has, in particular, assisted in his rehabilitation. This degree of progress has caused me to conclude that the further period of custody sought by the Crown and the level of custody sought is unnecessary and excessive.

In my view, the least restrictive sentence which would best promote Mr. C.’ rehabilitation and foster his reintegration into the community at this time is a three-month custody and supervision order, comprised of two months or 60 days in open custody, followed by 30 days of community supervision. This will be followed by 17 months of probation, the terms of which are as follows: 1. Keep the peace and be of good behaviour; 2. Attend court when it is required of you; 3. Within two business days following your release from custody, report to and be supervised by a probation officer; 4.

Notify the clerk of the youth justice court or your probation officer of any change of address or change in your place of employment, education or training; 5. Reside at a place approved of by your probation officer, in consultation with your mother and, as appropriate, your Children’s Aid worker; 6. For the first six months of this order, abide by a curfew as directed by your probation officer, in consultation with your mother and, as appropriate, your Children’s Aid worker; 7. Make reasonable efforts to seek and maintain suitable employment and/or attend school or a training program; 8.

Abstain from having any contact or communication, directly or indirectly, with Li Fun Lu, Ming Fang Zhai, Chris Hyunh or Yu Zhang, except: a. for the purposes of writing a letter of apology, the delivery of which will be facilitated by your probation officer; 9. Abstain from having any contact or communication, directly or indirectly, with Andrew McLennan, Kevin Woodley, Christopher Bramley or Daisha Lewis; 10. Abstain from being within 200 m of where Ms. Lu, Ms. Zhai, Mr. Huynh or Ms. Zhang live, work, go to school, or happen to be, as known by you;

11. Abstain from associating with anyone known to you to have a youth court or criminal record, except: a. in case of a member of your immediate family; b. for the purposes of complying with the requirements of the Education Act ; c. for the purposes of complying with any sentence or other detention order; d. with the prior, written consent of your probation officer; 12. Abstain from the possession or consumption of a controlled drug or substance, as defined by the Controlled Drugs and Substances Act , except in accordance with a medical prescription; 13.

Take counseling and/or participate in a rehabilitative program, as recommended by your probation officer, particularly in the following areas: a. Your own feelings of rejection; b. Self-esteem; c. Bereavement counseling; d. Negative peer influences; e. Anger management; f. Victim empathy; g. Impulse control; and h. Substance Abuse; Sign the necessary authorizations that will allow the probation officer to monitor your progress in counselling; and 14.

Abstain from owning, possessing or carrying a weapon, as defined by the Criminal Code , or ammunition, prohibited ammunition, prohibited device or explosive substance; [ 68 ] In addition, I am exercising my authority conferred by § 51(1) YCJA and prohibiting you for a period of two years from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance .

I am obliged to order that you provide a sample of your DNA in respect of the two counts of robbery and I do so at this time, subject, of course, to confirmation that your DNA profile is already in the system. Further, I am satisfied that it is in the best interests of the administration of justice to make the same order in relation to the two counts of use imitation firearm.

In reaching this decision, I have taken into consideration your previous finding of guilt for robbery, the underlying facts of these two counts and your diminished expectation of privacy having regard to my understanding that your DNA profile is already in the DNA databank. Once again, this Order shall not be acted upon once it is confirmed that Mr. C.’ DNA profile is contained in the DNA Databank. [ 69 ] Finally, pursuant to ¶ 119(1)(

s) YCJA , I am ordering that a copy of Ex. 3, the § 34 assessment prepared by Dr. Bassarath of CAMH, may be released to any of the following individuals assisting Mr. C.: (1) a probation officer; (2) a Central Toronto Youth Service case worker; or (3) a psychiatrist, psychologist or psychotherapist. [ 70 ] Having regard to Mr. C.’ youth and his lack of employment, the Victim Fine surcharge will be waived.

Released: September 6, 2011 Signed: “Justice A. Tuck-Jackson”