R. v. T.(R.), 2013 ONCJ 705

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

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 Identity of offender not to be published.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

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 Identity of victim or witness not to be published.—

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

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

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

section 129 (no subsequent disclosure) . . . (

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

b) is guilty of an offence punishable on

summary conviction. Citation: R. v. T.(R.) , 2013 ONCJ 705 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 — R.T., A YOUNG PERSON Before Justice Aston Hall Heard on July 9 and 10, July 16, September 26 and December 6, 2013 Reasons for Judgment released on December 13, 2013 B. Olesko ................................................................................................................... for the Crown B.

Kolman ............................................................................................ counsel for the accused R.T. HALL J.: [ 1 ] Following a trial that lasted a number of days, I found the young person: R.T. guilty of all the Criminal Code offences that he was charged with. He is now before me to be sentenced for his

part in a home invasion style robbery that took place on 8th day of August 2011. The offences are Unlawfully in a Dwelling, Aggravated Assault, Assault with a Weapon (x4), Forcible Confinement (x4), Assault (x2), Threatening Death, Robbery while armed a Firearm. [ 2 ] The Crown has brought an application to have the offences R.T. was convicted of designated as serious violent offences

(SVO) under section 42(9) of the Youth Criminal Justice Act (hereinafter YCJA). Section 42(9) has since been repealed but was in force at the time of the offences and continues to apply to the case at bar. The defence is resisting this application and has argued it is unnecessary in the circumstances of this case. [ 3 ] I found this young person: R.T. facilitated entrance into the victims’ apartment on the night in question.

He is known to the family; more specifically he was a friend of J.P. the young man that resided in the apartment with his mother, C.P., and sister T.P.. [ 4 ] All the assailants that entered the apartment were wearing masks, except the young person R.T. While in the apartment assailants tied up the three occupants, mother, daughter and son with duct tape; they were pepper sprayed, threatened and assaulted. [ 5 ] J.P.’s thumb on his left hand and the toe on his left foot were both severed by the assailants.

Both were surgically reattached; however, due to some complications the top portion of J.P.’s thumb had to be amputated. Additionally he received 17 staples to his back to treat a cut he received during the home invasion style robbery, and was hospitalized for over one week. [ 6 ] The young person R.T. was in the apartment during the course of the robbery and I found him to be a party to the offences; however, he never participated directly in the actual physical violence that was inflicted on this family.

The evidence suggested he departed the apartment in the company of the group of intruders. [ 7 ] During the sentencing hearing I received two victim impact statements, one from C.P., in which she said among other things: “the home invasion of August 11 th has caused me serious emotions stress. It has caused me to be fearful of my life and my family’s life and safety. I dreaded the sound of unexpected knocks at my door and became terrified of the sounds and movement in the hallway. Safety and security became huge part of my life due to the fact that several people were unidentified….

I did not watch the news on TV or listen to the news on the radio it was a constant reminder of what happened to me and my family. Every day I would sit in a room at work and cry. During the night I could not sleep because of the flash backs and headaches…” [ 8 ] In her victim impact statement T.P. said: “the home invasion of August has caused me great emotional distress. I find myself unable to trust individuals I have known for over 20 years living in a close-knit neighbourhood. I fear for my safety and security…. I’m reluctant to answer the door.

It is difficult to sleep at night, and I’ve come agitated at the slightest movement in the hallway….. It is difficult to put the memories of the event in the background, as the scar on my brother’s face and the impairment from his severed thumb is a constant reminder. Every time I pass by the neighbouring building I remember that someone I made the mistake of calling a friend and community member was one of the attackers”. [ 9 ] I did not receive a victim impact statement from J.P.; it is not surprising because he was reluctant to even testify at trial.

It is an irresistible conclusion that this young man suffered both substantial physical and psychological harm as a result of the home invasion style robbery. [ 10 ] R.T. was born in Toronto, Ontario in 1994. He was raised by his mother, Ms. C.T.; he is her second child. R.T.’s father is, I.A., from the pre-sentence report he was mostly absent from a young man’s life. Ms. C.T. provided for her children primarily from her own income and some support from Mr. I.A. R.T. describes his early years with his mother as a “good life”. [ 11 ] Mr.

C.A. is R.T.’s stepfather, who was a real father to this young person; they shared a healthy relationship one of mutual respect. Growing up Mr. C.A. provided guidance and direction to R.T. [ 12 ] In elementary school R.T. participated in a number of extracurricular activities, including soccer and basketball. His mother described him as an average student; however, when he entered secondary schools grades fell below an acceptable standard.

During this period of his school life R.T. exhibited his behavioural problems at school that led to a number of suspensions, particularly for fighting. [ 13 ] R.T.’s poor academic performance in school he attributes to the lack of motivation; whenever he applies himself he’s capable of doing well. Due to poor performance he did not complete grade 12. [ 14 ] Attempts were made to have R.T. attend an alternative high school so he may complete his studies, but due to a lack of motivation this never occurred. Ms. C.T. reported that R.T. has difficulties sitting in a classroom setting for a lengthy period.

According to Ms. C.T. and R.T., he does not have a learning disability. R.T. wishes to pursue a career in culinary arts sometime in the near future. [ 15 ] Since leaving school R.T. has worked at a number of odd jobs, most recently he worked with family members doing home renovations. Ms. C.T. reported when her son is gainfully employed he does “good” to use her words. [ 16 ] Ms. C.T. indicated to the probation officer responsible for this presentence report that R.T.’s associates are the source of his problems because many of them do not have jobs and are not settled.

R.T. as admitted that many of his friends to have criminal records. [ 17 ] The presentence report has revealed that R.T. has been experimenting with marijuana use since 11 years of age. He does admit that he has a problem with this particular drug for a number of years. Drug use has been a source of contention between R.T. and his mother for some time now. [ 18 ] At the time the offences were committed R.T. had no criminal record; he now has one count of fail to comply with recognizance.

He received a disposition of one day in custody and three years’ probation on 28 November 2012. [ 19 ] The probation officer found R.T. to be cooperative and pleasant during the interview for the presentence report. As well, R.T. expressed sympathy for the victims, while maintaining his non-involvement in home invasion style robbery. [ 20 ] The Crown’s position is that the offences should be designated a serious violent offences and I should impose 10 months secure custody, 10 months open custody, 10 months community supervision and to be followed by 6 months probation for a total

sentence of 36 months, that a sample of young person’s DNA be taken, and that a weapons prohibition under section 51 (1) of the YCJAbe imposed. [21] The defence position is that I should not impose the serious violent offence designation because it is not warranted. Toimpose such designation would limit the sentencing options that will be available to me, for example deferred custody supervision wouldno longer be available. [22] Counsel for the defence is recommended a sentence of six months deferred custody to be followed by a period ofprobation.

Alternatively, if I make the serious violent offence designation: a sentence of open custody would be appropriate for thisyoung person, in the six month range. The defence argued there is no need to impose a period of secure custody.

This would have effectof simply warehousing the young person. [23] There are two issues that I must decide in this case: ♦ first: should a serious violent offence designation be made in this case? ♦ second: what is the appropriate sentence for the young person: R.T.? [24] Notwithstanding the disagreement between the parties on the necessity of the serious violent offence designation, theyboth agreed that the designation, even though the accused was found guilty of the offences by virtue of being a party to the offences. InR. v. T. (V.J.) (2007), 2007 MBCA 45 , 218 C.C.C. (3d) 563 (Man.

C.A.), Steele J.A. said “the designation may be made againeither principal or a party…. It is necessary to consider the different degrees of complicity of each party and assess their respective rolesin the offence”. [25] As well, the Ontario Court of Appeal in R. v. C. (K.), 2011 ONCA 257 , [2011] O.J. No. 1478 (C.

A) para. 38,outlined that an offence committed as a party will meet the definition of serious violent offence if the young person’s conduct was acontributing cause outside the de minimis range or a contributing cause that is not trivial or insignificant. [26] The

section that provides for the discretion for the judicial determination of whether the offences can be designated asSVO is section 42(9) of YCJA: which reads: On application of the Attorney General after young person is found guilty of an offence, and after giving both parties an opportunity tobe heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorsedinformation or indictment according. [27] The definition of a serious violent offence is set out in section 2(1) of the YCJA. It reads : “An offence in the commissionof which a young person causes or attempts to cause serious bodily harm.” [28] The

section establishes the threshold for designation of the offence as an SVO and requires a two-step analysis [R. v.C.K.]. 1. First, it is necessary to identify the offence that the young person committed. In doing so, the court may apply the ordinary rulesgoverning party liability. 2. The second step requires a court to determine if the young person’s offence caused bodily harm. [29] The Supreme Court of Canada has indicated that serious bodily harm definition could also be used for the purpose ofdefining serious violent offence in the context of the YCJA: R. v. C.D.K., 2005 SCC 78 , [2005] 3 S.C.R. 668.

The definition isas follows “‘serious bodily harm’ is any hurt or injury, whether physical or psychological, that interferes in a substantial way with thephysical or psychological integrity, health or well-being of the complainant.” R. v. McCraw, (SCC), [1991] 3 S.C.R. 72. [30] In a 2013 decision of the Court of Appeal R. v. A. (M), O.J. No 1684 (C.A.), Tulloch J.A. said at paragraph 28: “I am ofthe view, in cases where the youth justice court concludes that a young offender as occasional serious bodily harm to another person, thepreliminary SVO threshold under section 49 (9) should be automatically met.

Whether or not this serious bodily harm was reasonablyforeseeable should however, remain a factor at a second discretionary stage.” [31] It is important to note the law requires objective foreseeability of the risk of bodily harm and not the specific injury thatmight occur during the commission of the offence. [32] Once a court is satisfied that the threshold established by the

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definitions for making a serious violent offencedesignation has been met, section 42(9) of the YCJA gives the court discretion concerning whether to actually make and SVOdesignation.

As I understand it, even if I determine the threshold requirement has been satisfied, I may decline to make the designation. [33] However, it is important to note paragraph 26 in K.C. [2011] accordingly although and SVO designation does not makeactual custodial sentence mandatory, in practical terms, having regard to the inherent seriousness of an SVO, it means that, absentexceptional circumstances, an actual custodial sentence would be the only realistic sentencing option. [34] One factor a sentencing judge must consider in deciding whether to designate an offence as a serious violent offence iswhether the consequences of and SVO designation are necessary to achieve the purposes of youth sentence.

Purposes include: reducingthe overuse of custody for non-violent young persons; and holding young persons accountable for their offences by imposing meaningfulconsequence.

[ 35 ] Another principle that must be considered when dealing with a youth sentencing is that; the sentence “must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence”: section 38(2) (

c) of the YCJA ( R. v. C.K. ), para. 46 to 59. [ 36 ] While the above mentioned principle of YCJA is not an exhaustive list, however, it is sufficient for the purposes of this sentence to highlight those particular principles. [ 37 ] During the trial I found that the young person R.T. was a party the offences and it’s without doubt that these offences caused C.P. and T.P. substantial psychological harm.

Further, J.P. suffered substantially both physical and psychological harm as a direct result of the home-invasion style robbery. [ 38 ] I hasten to say that R.T. did not directly inflict the harm to the victims; however, he made a substantial contribution to the enterprise, or commission of the offences, by serving as the means of entrance into the apartment. In other words he was well invested in the enterprise, the home-invasion style robbery. [ 39 ] It was objectively foreseeable that the risk bodily harm would occur in a situation where intruders entered the apartment with the intent to commit robbery.

This point was made clear when I made the findings of guilt after the trial. [ 40 ] After careful examination of all the circumstances in this case, particularly the significant level of physical and psychological harm experienced by the victims. I must reject the submission made by defence that in these circumstances an SVO designation is unnecessary. R.T. was a party to the offences that caused serious bodily harm.

As a result the application is granted and the offences will be designated serious violent offences. [ 41 ] Now dealing with the appropriate sentence. [ 42 ] The YCJA makes it mandatory when imposing a youth sentence that I consider the lease restrictive sentence capable of achieving the purposes set out in section 38(1) . [ 43 ] The offence were committed in August 2011, the sentencing is taking place in December 2013. A substantial period of time has passed, during which R.T. was not engaged in any significant criminality.

I remind myself as well that his conduct contributed to the offences overall, but he did not directly participate in the violence administered to the victims. [ 44 ] In terms of aggravating factors: It was a home invasion style robbery, where the family was confined, the offence occurred late at night, weapons were present, an object appearing to be gun was used to threaten the victims, a knife was used to inflict serious injuries on one of the victims, property was stolen, and the victims experienced tremendous physical and psychological harm. [ 45 ] In terms of mitigation: ♦ he is a first time offender; ♦ at the time of the offence he was 17 years old; ♦ he has no criminal record; ♦ since his arrest on these charges he has not been engaged in any serious criminality; ♦ he has family support, more specifically from his mother; ♦ since the commission of this offence he has been working doing home renovations. [ 46 ] As already mentioned he was a party to the offence as opposed to inflicting the violence directly. [ 47 ] It is my view to hold R.T. accountable as a party, and taking into account the level of his complicity in the offences; a custodial sentence is warranted.

This would be consistent with the principles of youth sentencing given the circumstances of this case. [ 48 ] In considering the appropriate sentence, I must be mindful of the principle of rehabilitation and reintegration when dealing with a young person. I must also take into account the fact that meaningful consequences must be imposed for the young person to understand the consequences of his actions. [ 49 ] I have already outlined the aggravating and mitigating factors.

Having considered all of these factors I am of the view that the sentence requested by the prosecution would be excessive in these circumstances. At the same time, the sentence proposed by the defence is also inadequate because it would not impose meaningful consequences for his role in these offences. [ 50 ] I am of the view that the following sentence is to be imposed: 90 days secure custody (minus pre-trial custody to be credited at the customary 1.5: 1 ratio). The parties have agreed that the young person, R.T., served 13 days in custody at the customary ratio of 1.5:1, which equals 20 days.

Therefore, there will be 70 days of secure custody, 90 days open custody, to be followed by 53 days community supervision and to be followed by 18 months probation. [ 51 ] I have reviewed all of the case law provided to me by counsel. It is clear that there exists a wide range of sentence for these types of cases. Not surprisingly, none of these cases were directly on point. [ 52 ] Conditions of the probation are as follows : ♦ mandatory conditions are to apply

♦ report to a probation officer as directed; ♦ take any and all rehabilitative counselling as directed his probation officer until directed otherwise; ♦ make efforts to attend school or seek and maintain gainful employment; ♦ sign on necessary releases to authorize your probation officer to communicate with education authorities or employers; ♦ have no contact or communicate with the victim: C.P., T.P., and J.P., nor to be within 50 metres of any place you know that work or be; ♦ not to associate any person known to you to have a criminal record or youth court record, except as may be permitted by the probation officer or family members; ♦ reside at the premises approved by the probation officer; ♦ not to be in possession of any weapon as defined by the Criminal Code ; ♦ ancillary orders: I made an order directing R.T. to provide a sample of his DNA. ♦ as well, I make an order under section 51(1) of the YCJA : firearm prohibition for two years .

Released: December 13, 2013 Signed: “Justice A. Hall”