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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Simcoe Y110025 DATE: 2013·02·01 Citation: R. v. K.(J.) , 2013 ONCJ 67 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 — J.K., a young person Before Justice K.A.

Sherwood Heard on December 3 rd and 4 th , 2012, January 8 th and February 1 st , 2013 Reasons for Decision released on February 1, 2013 Gracie Romano and Erica Quayle ............................................................................... for the Crown Michael McArthur ................................................................................ counsel for the accused J.K. SHERWOOD J.: [ 1 ] On August 13, 2012, after entering pleas of guilt, and on the basis of an Agreed Statement of Facts, J.K was found guilty of two counts of attempted murder and one count of sexual assault.

These offences arise out of a series of tragic events that took place at the home of the victims on February 28, 2011. J.K. was just over 17 years and one month old at the time of these offences.

Pursuant to an application by the Crown under section 42(9) of the Youth Criminal Justice Act , a judicial determination was made that the offences are serious violent offences as defined in section 2(1) of the Act, and an assessment of the young offender was ordered pursuant to section 34 (1) of the Act. [ 2 ] The Crown has brought an application pursuant to section 64(1) of the Youth Criminal Justice Act (the Act ) for an order pursuant to section 72(1) (

b) the Act that the young person, J.K., be sentenced as an adult for these offences. The application is possible as the young person was over the age of fourteen years at the time the offences were committed and the crimes committed are offences for which an adult is liable to imprisonment for a term of more than two years. It has been conceded that the requisite notice of the Crown’s application to seek an adult sentence for these offences as required under section 64 (2) of the Act has been provided to the young person and the court prior to the young person entering his pleas to these offences.

The young person contests the Crown’s application and seeks to be sentenced as a young person under the Act . Counsel agree that following the determination of whether J.K is to be sentenced as an adult or a young person, a further hearing will be held to determine the sentence to be imposed, and if applicable, the issue of placement. [ 3 ] Section 72(3) requires that a pre-sentence report must be considered by the court in its decision to impose a youth or adult sentence. A pre-sentence report, prepared by Vuk Popovic and dated October 11, 2012 was included in the materials filed. Pursuant to section 34(2)(

b) a medical or psychological assessment of the young person may be ordered for the purpose of making a decision under

section 71 to impose a youth or adult sentence. For this purpose a psychological and psychiatric assessment of the young person was ordered and the reports of Dr. Joyce Radford, a psychologist with the Centre for Children and Families in the Justice System, dated October 11, 2012 and of Dr. Timothy L. Beal, a Child and Adolescent Psychiatrist, dated October 11, 2012, were filed with the court. [ 4 ]

Section 71 of the Act requires that certain persons be given an opportunity to be heard at an application for an adult sentence. Crown and defence counsel both made lengthy submissions. J.K was given the opportunity to be heard and chose to do so by filing a handwritten letter to me which was entered as an exhibit. The parents of the young person were provided an opportunity to be heard at

the hearing and have done so by providing a letter to the court in which they express that they and their family are sorry for the harm caused to the victims, talk of the consequences that their son has experienced over the past two years, of his efforts to improve, of their prayers for the victims, and on behalf of their son and family request forgiveness. FACTS 1. THE OFFENCES [ 5 ] The circumstances of the offenses were outlined in detail in an Agreed Statement of Facts filed as an exhibit. In

summary they are as follows: J.K. resided with his parents and siblings in a rural area of Norfolk County. The mother victim, resided with her husband and their three children, ages 5, 8 and 17. The victims’ residence was not far from the residence of J.K. and the families were known to each other. J.K. and the victim’s oldest son are approximately the same age and had been friends. About 1 to 2 weeks prior to February 28, 2011 J.K. had confronted the oldest son about some issue regarding J.K.'s girlfriend, had punched him in the head a number of times, knocked him to the ground and continued to punch him.

On Monday, February 28, 2011 the mother and her five-year-old son were at home in their residence. At some time around noon she noticed J.K. riding his bicycle up and down the roadway in front of her home. J.K. then rode his bicycle up the driveway. She opened the front door and asked him what he wanted. J.K. asked if the oldest son was home and was advised that he was not. She asked J.K. why he had tried to hurt her son. J.K. responded that it had to do with his girlfriend.

J.K. then grabbed her by her shirt color, pulled a hunting style knife, which was about 8 inches in length, from his pocket, held the knife against her throat with his right hand, grabbed her chin with his left hand and began to kiss her. She told him to stop, but he continued and told her to get inside. She refused to do so and in an ensuing struggle was able to take the knife away from J.K. and throw it out into the snow. J.K. opened the door, pushed her inside and to the floor, and ordered her to take off her clothes. She said no and he then grabbed her by the throat to the point where she could not breathe.

She told him that she wanted to get her son out of the way as she did not want him to see what was happening. Her son heard screaming and came over to see what was going on. He saw J.K. holding his mother by the throat. She told her son to go upstairs and he did. J.K. forced her into the bathroom and struck her in the face with a closed fist, attempted to kiss her and fondled her breasts. He then forced her into the kitchen while holding her throat. While in the kitchen he located a cutlery knife, held it against her throat and forced her into the main floor master bedroom.

There he again struck her in the face with a closed fist and ordered her, at knife point, to take off her clothes. She removed her jeans and underwear. He forced her onto the bed, removed his pants and underwear, and got on top of her. He was grabbing at her breasts and attempted to have sexual intercourse with her. He was rubbing his penis against her leg and vaginal area in an attempt to gain an erection. During this time she continued to try and fight him off. He failed to achieve an erection and therefore no penetration took place.

He then got off of her, ordered her to put her clothes back on, and put his on as well. He asked if she was going to tell anyone and then told her that he could not trust her. He tied her with a belt and a necktie to the bedpost and then attempted to cut her neck with the cutlery knife however it was not sharp enough and caused only superficial injuries. The five year old son may have returned downstairs and witnessed some of this. J.K. then ran out of the bedroom and returned with a pair of scissors and stabbed the mother on the right side of her neck causing a significant puncture wound.

He again ran out of the bedroom, returned with a frying pan and struck her three times in the head. At this point her son was present in the bedroom. J.K. grabbed the child and forced him to sit on the floor next to his mother. J.K. then ran out of the bedroom and returned holding his T-shirt which had been lit on fire. He threw the flaming T-shirt onto the bed and walked out of the bedroom closing the door behind him and leaving the mother tied to the bedpost and her son on the floor next to her. Within a very short period of time the bed was totally engulfed in flames.

The room began to fill with smoke making it very difficult to breathe. The child was panicking. The mother managed to get free and got herself and her son out the bedroom window. They attempted to run across the yard to the car that was parked in the driveway however J.K. came running out of the house, pushed the mother to the ground, grabbed her son by the shirt, ordered them to get back into the house and was attempting to drag her back to the house. She was able to break free and with her son, again tried to run towards the car.

J.K. pushed her down again, then stepped on her neck and was pushing down cutting off her ability to breathe. Two gentlemen, who had been passing nearby, noticed the smoke and attended at the scene to offer their assistance. As they were arriving, J.K. released the pressure from the mother’s throat and backed away. By this time the residence was fully engulfed by fire. The mother had severe burns to her hands, face and back, was black from smoke, her hair was singed, and she was bleeding from a welt on the side of her head and bleeding from her neck due to a puncture wound.

She advised the gentlemen that J.K. had raped and stabbed her. One of the men saw J.K. and called out to him, at which time J.K. ran off into the snow-covered field behind the residence. The men called 911. It was approximately 2:05 p.m. When the police arrived shortly thereafter there were flames rolling through the lower front window and dark smoke billowing out of the residence. The mother and her son had to be removed a safe distance from the home and were administered first aid.

OPP officers tracked J.K.'s footprints in the snow for over 2 kms before they caught up to him and at 3 p.m. were able to place him under arrest. The five year old child suffered burns to his right wrist, top of his ears, and to his lower back. He was treated at hospital and released that same day. The mother suffered much greater injuries. She was taken to a local hospital, and from there airlifted to Hamilton General Hospital where she remained for 11 days.

She sustained second degree burns to her face, neck and shoulder, burns on both hands, abrasions where she had been struck by the frying pan, smoke inhalation injury, two non-penetrating wounds to her right neck over the vital vessel region, a penetrating puncture wound to the back of her neck, and a puncture wound on her right lower leg. Medical psychiatry diagnosed her with acute stress disorder. A subsequent CT scan also revealed that she had sustained a skull fracture. The victims’ residence sustained extensive damage.

The cost of the restoration of the home and replacement cost of the contents was $521,961.33. The opinion of the Ontario Fire Marshal investigator is that the master bedroom, where the fire originated, would have sustained a “flashover” three to four minutes after ignition and that had the mother and her son not been able to get out of the room, survivability would have been impossible. The fire claimed the life of five family pets, a dog and four cats.

2. THE OFFENDER [6] J.K. was born on January 25, 1994. He is the third oldest of 16 siblings. His family is of Mexican Mennonite background. Theoffender’s family is very close knit and operate a produce farm. Apart from an assessment dated January 24, 2007, indicating that J.K.had a low/average performance in broad reading and written language, and a significant relative weakness in mathematics, J.K.’selementary schooling is unremarkable. It is reported that throughout his elementary years he attained average marks. He commencedgrade nine in 2008.

Although his Ontario School Record (OSR) indicates that progressive absenteeism was evident as early as grade 5, itdoes not appear to have had a significant impact on his academics until the end of grade eight and the beginning of his secondaryeducation. It appears that as J.K. matured, the demands for his assistance on the family farm increased, which in turn had a negativeeffect on his attendance, and academic performance. In his grade nine year he missed 56 days of school and withdrew from school infavour of working on the family farm. He apparently re-enrolled in high school in September 2009.

As absenteeism continued to be asignificant problem, he enrolled in an alternative schooling program in January 2010. Nevertheless, J.K.’s truancy continued. By thetime of his arrest in February 2011 he had only attained 8 credits towards his high school diploma. J.K. has been in custody at theSprucedale Youth Centre since March 1, 2011, and through attending the Sprucedale Secondary School has attained an additional 11.5credits.

As at October 2012, he required a further 10.5 credits to graduate high-school. [7] Information referred to in the Pre-Sentence Report from J.K.’s OSR and disclosures made to the assessors in their preparationof the s. 34 Assessment Reports indicate that J.K. did exhibit some behavioural issues at school, garnering eight documented suspensionsranging from one to five days, for issues pertaining to conduct injurious to the physical and mental well-being of others, uttering threats,and persistent opposition to authority. [8] The Children’s Aid Society has been involved with J.K.’s family since 2004 investigating complaints from communitymembers and schools pertaining to inadequate supervision, neglect and inadequate care of the children.

J.K.’s parents dismiss theconcerns raised by the CAS and have become reluctant to cooperate with the CAS or to follow through on that agency’srecommendations. This breakdown in cooperation subsequently led to the Society apprehending eleven of J.K.’s younger siblings andplacing them in foster care. Two of the adolescent children have since been returned to the care of the parents. It is evident from theassessment reports that J.K. views his family as a central pillar in his life. ISSUES [9] The core issue to be determined in this application is whether or not J.K should be sentenced as a youth or as an adult.

Relatedto that determination is the issue of what consideration, if any, should be given to the time that J.K. has spent in pre-sentence detention. THE LAW [10] The criteria to be considered and the test to be applied in determining whether J.K. should be sentenced as an adult isdetermined by

section 72 of the Act. Section 72(1) provides: s. 72 (1) In making its decision on an application heard in accordance with

section 71, the youth court shall consider the seriousnessand circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any otherfactors that the court considers relevant, and (

a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out insubparagraph 3(1)(b)(ii) and

section 38 would have sufficient length to hold the young person accountable for his or her offendingbehaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and (

b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out insubparagraph 3(1)(b)(ii) and

section 38 would not have sufficient length to hold the young person accountable for his or her offendingbehaviour, it shall order that an adult sentence be imposed. [11] Pursuant to section 72(2) the onus is on the Crown, in making the application. The Ontario Court of Appeal in Regina v.A.O., 2007 ONCA 144 , [2007] O.J. No. 800 (Ont.

C.A.) clarified the nature of the onus upon the Crown, confirming that thewording of the section, in permitting an adult sentence if the youth court “is of the opinion” that an adult sentence is required to hold theyoung person accountable for their offending behaviour, requires a very careful consideration of all the relevant factors, does not place “avery heavy burden” on the Crown, and does not require proof beyond a reasonable doubt.

At paragraphs 37 and 38 of that decision theCourt held: … we recognize that the decision to impose an adult sentence upon a young person is a very serious one and should only be taken aftercareful consideration of all the relevant factors. As the youth court judge pointed out, the imposition of an adult sentence can lead tovery serious consequences for the young person. 38 The youth court judge reasoned that in order to ensure that the most serious interventions are reserved for the most seriouscrimes, as mandated by the

preamble to the YCJA, the burden of proof is not mere satisfaction, but rather “a very heavy onus to satisfy”as he put it. With respect, we would not describe the onus in those terms. Section 72(2) imposes an onus of satisfying the court, nothingmore. However, in applying that onus, it is important that a youth justice court bear in mind the very serious consequences of an adultsentence for the young person, so as to only order an adult sentence when necessary to fulfil the objectives of the YCJA. [12] Section 72(1) specifically directs the youth justice court to a consideration of the purpose and principles set out insubparagraph 3(b)(ii) and

section 38 of the Act. Subsection 3(b)(ii) mandates that the criminal justice system for young persons must beseparate and apart from that of adults and emphasize “fair and proportionate accountability that is consistent with the greater dependencyof young persons and their reduced level of maturity.” The general purpose of sentencing under the YCJA and the principles by which ayouth justice court, in imposing a youth sentence, shall determine the sentence are set out in

Section 38, which provides as follows:

s. 38 (1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offencethrough the imposition of just sanctions that have meaningful consequences for the young person and that promote his or herrehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principlesset out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriatefor an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guiltyof the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of theyoung person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered forall young persons with particular attention to the circumstances of aboriginal young persons; and (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society;and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done tothe victims and the community.

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that arerelevant to the purpose and principles set out in this section. [13] By specifically incorporating the purpose and principles in sections 3(1)(b)(ii) and 38 into the

section 72 test, the court isrequired to actually weigh and balance all of the factors that it does when actually sentencing a young person. So, even though the courtis not, on this application, deciding what sentence is appropriate, the court needs to consider the same factors that it would on asentencing hearing, and then decide whether a youth sentence will be sufficient to hold J.K. accountable for the attempted murder andsexual assault offences. (See R. v. M.O., [2011] M.J. No. 39 (Man. Prov.

Ct.) at para. 30) [14] Accountability, achieved through the imposition of meaningful consequences for the offender, and sanctions that promotehis rehabilitation and reintegration into society, is the central consideration in a determination under

section 72. [15] The Ontario Court of Appeal in its decision in R. v. A.O., supra, starting at paragraph 42 reviewed this principle ofaccountability in the context of a

section 72 application to impose an adult sentence as follows: 42 The combined effect of ss. 72, 3 and 38 is to identify accountability as the purpose that the youth court judge must consider whendeciding an application to impose an adult sentence on a young person. Accountability is achieved through the imposition of meaningfulconsequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society.

The purpose ofaccountability in this context would seem to exclude accountability to society in any larger sense or any notion of deterrence. … 46 In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by LamerC.J.C. in R. v.

M.(C.A.) (1996), (SCC), 105 C.C.C. (3d) 327 (S.C.C.) at paras. 80 and 81: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance,

retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more . … Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blame-worthiness of that particular offender . The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender's conduct .

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society’s basic code of values as enshrined with in our substantive criminal law. [Underlining in original, italics added.] The Court went on at para. 47 to state: 47 In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, “the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct”. [Underlining omitted.] We see no other rational way for measuring accountability. 48 The need to consider the normative character of an offender's behaviour necessarily requires the court to consider societal values.

But what the court cannot do is add onto a youth sentence an element of general deterrence or denunciation. And, at para. 50 noted: 50 Youth court judges have reached similar conclusions as to the meaning of accountability in s. 72 . As Blacklock J. said in R. v. J.M. , [2004] O.J. No. 2796 (C.J.) at para. 26 , the sentence must “be long enough to reflect the seriousness of the offence before the court and the accused’s role in it”, even taking into account the offender’s increased dependence and decreased maturity.

We read this as recognition of the need to take into account the normative character of the offender’s conduct. And in R. v. Ferriman , [2006] O.J. No. 3950 (S.C.J.) at para. 38 , McCombs J. said that for a sentence to hold a young person accountable it must achieve two objectives: It must be long enough to reflect the seriousness of the offence and the offender’s role in it, and it also must be long enough to provide reasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society.

If the crown proves that a youth sentence would not be long enough to achieve these goals, then an adult sentence must be imposed. [Footnote omitted.] [ 16 ] Justice Nordheimer in R. v. Todorovic , [2009] O.J. No. 3246 (Ont. S.C.J.) at para. 10 , adds one further observation: 10 … The notion of accountability immediately raises the question - accountable to whom?

While the answer to that question will necessarily vary according to the individual actions or decisions for which a person is being held to account, in the case of the YCJA one must presume that the persons to whom the young person is intended to be held accountable are the members of the community in which the young person committed the offence and which has suffered the harm resulting from it. [ 17 ] In R. v. D.E. , [2011] O.J. No. 1403 (Ont.

S.C.J.) Justice Lipson at paras. 35 and 36 adds: 35 Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions to promote his rehabilitation. What the court cannot do is add on to the youth sentence an element of general deterrence or denunciation. The sentence must be long enough to reflect the seriousness of the offences and (the offender’

s) role in them while taking into account the accused’s decreased maturity. The sentence must be long enough to provide reasonable assurance of this young person’s rehabilitation to the point where he can be safely reintegrated into society. 36 In my view, the term “meaningful consequences” refers to not only any custody portion of a sentence but also sanctions designed to promote the rehabilitation and reintegration of a young person. [ 18 ] In R. v. Lights , [2007] O.J. No. 1516 (Ont.

C.J.) Justice Trotter summarizes at para. 45 that: 45 In short, an adult sentence should be imposed when the youth sentence would not be long enough to meaningfully address the seriousness of the offences, the offender’s role in them, and his or her rehabilitation and ultimate reintegration into society: see Regina v. A.O. , supra, Regina v. J.M. , [2004] O.J. No. 2796 (C.J.) and Regina v. Ferriman, [2006] O.J.

No. 3950 (S.C.J.) . [ 19 ] The young person, J.K. has been found guilty of one count of sexual assault and two counts of attempted murder, offences which were found by this court to be “serious violent offences”. Section 42(2) (

o) of the YCJA provides that the maximum sentence that may be imposed on a young person on a conviction for such offences is three years, comprised of two years of custody followed by one year of placement in the community under conditional supervision. It should be noted as the young person is not, according to the s. 34

Assessment reports, suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance, an intensiverehabilitation custody and supervision order under s. 42(2)(

r) is not available. If sentenced as an adult, the maximum penalty for sexualassault under the Criminal Code is imprisonment for a period not exceeding ten years, and for the attempted murder counts, themaximum penalty would be imprisonment for life, and unless otherwise specifically ordered, the offender would be entitled to the paroleprovisions provided for under

Part XXIII of the Criminal Code. [20] In the determination of an application under s. 64(1) for the imposition of an adult sentence upon a young person, thecourt must also consider the issue of pre-sentence custody. J.K. was arrested on February 28, 2011, the date of the offences, and hasremained in custody since that date. Accordingly he has been in pre-sentence custody for approximately 23 months.

If a youth sentencewere to be imposed and credit for the pre-sentence custody is given on a 1:1 basis, the maximum remaining sentence available would beone month in custody to be followed by one year of community supervision. If a youth sentence were to be imposed and no credit forpre-sentence custody was applied, then imposition of the maximum sentence would result in two further years in custody to be followedby one year of community supervision.

Recognizing that a sentence consisting of only one further month of custody followed by oneyear of community supervision would not be sufficient to hold J.K. accountable for the offences committed, his counsel argued thatcredit for pre-sentence custody does not have to be applied and accordingly a youth sentence of a further three years is available to satisfythe test of accountability. The Crown argued that while any deduction for pre-sentence custody is within the discretion of the youthcourt sentencing judge, it is only in exceptional circumstances that credit should not be given. [21] Section 38(3)(

d) of the YCJA provides that in determining a youth sentence, the youth justice court shall take into accountthe time spent in detention by the young person as a result of the offence. Beyond the instruction that such pre-sentence custody shouldbe taken into account, the Act provides no further direction. This question of how pre-sentence custody should be credited has been dealtwith in a number of courts including the Ontario Court of Appeal. In R. v. B. (T.), (ON CA), [2006] O.J. No. 584(Ont.

C.A.) Justice Lang, on behalf of the Court of Appeal, at paras. 34 and 36, held that while required to give credit for pre-sentencecustody, “the trial judge has a residuary discretion, within a certain range, to assess the quantum of credit to be given”, and that theamount of credit will depend on a number of factors, including “conditions of the youth’s pre-sentence custody, the reasons for thatdetention, the length of the detention, the reasons for any delay in reaching trial or sentencing, and the youth’s need for further custodyor community service to meet the purposes of the YCJA.” At para. 35 Justice Lang confirms that a “trial judge may decline to give fullcredit where to do so would virtually exhaust the custodial term available and result in a sentence contrary to the purposes of the YCJA.” [22] In R. v.

E.L., (ON CA), [2006] O.J. No. 1517 (Ont.C.A.), the Court in dealing with an appeal by ayoung person of a decision by the sentencing judge, in imposing a lengthy intensive rehabilitative custody order, to credit the appellantwith only 3 months for the 16 months that he had spent in pre-sentence detention, stated at para. 9: In our view, properly read, this court’s decision in B.T. confirms that s. 38(3)(

d) obliges a youth justice court in all cases to take the timespent in detention by a young person as a result of the offence in issue into account in fashioning a sentence. This does not mean,however, that in taking such detention into account, the youth justice court does not have discretion to determine the appropriate credit tobe given. B.T. recognizes that it is only in an exceptional case, such as this one, where a court should exercise that discretion to reducethe credit given below one to one. [23] In R. v.

D.W., 2008 ONCA 268 , the court in dealing with an appeal by a young person of the trial judge’sdetermination that he be sentenced as an adult, on the grounds that the trial judge determined that he was required to give the appellantfull credit for the two and a half years that he had spent in pre-sentence detention and that on this basis the remaining maximum youthsentence available would not be sufficient to hold the young person accountable nor promote his rehabilitation, found at para. 3: The trial judge’s approach was in error because although he was required to take pre-trial custody into account, he was not required todirectly deduct the time spent in pre-trial custody.

Instead, the trial judge had broad discretion to take pre-trial custody into account as aconsideration in deciding whether the appellant would serve a youth or an adult sentence. The Court of Appeal then set aside the adult sentence that the trial judge had imposed and replaced it with the maximum youth sentence,notwithstanding that the youth had already spent two and a half years in pre-sentence detention, and without further reference to the pre-sentence detention. [24] In R. v. S. (D.), (2008) 2008 ONCA 740 , 93 O.R. (3d) 211 (Ont.

C.A.), at para. 26, Justice Gillese for the Courtconfirms: … the credit to be given for pre-sentence custody is a discretionary matter, it is not a mechanical calculation. There are a number of waysin which pre-sentence detention can be “taken into account”, including in the decision to reduce the type or severity of the sentence. [25] The Justice Nordheimer of the Ontario Superior Court of Justice in R v. J.S.R. (ON SC), [2009] O.J.No. 1662 (Ont.

S.C.J.), in dealing with a Crown application to have an adult sentence imposed upon a young offender, grappled with thisquestion of what credit should be given for pre-sentence custody, and in particular whether it is appropriate to give no credit, so that ayouth sentence may be imposed.

After reviewing a number of authorities, including the Ontario Court of Appeal decisions referred toabove, Justice Nordheimer at para. 48 stated that he had “trouble with the submission that a court can impose a sentence on a youngperson that fails to give any credit whatsoever for the time that that young person has spent in pre-sentence custody” and at para. 50 that“ it is difficult to imagine how one could meaningfully “take into account” pre-sentence custody without giving some measure of creditfor it in determining the remaining time to be served under a sentence.” In paragraphs 58 to 60 of his decision, Justice Nordheimerconcludes: … There would be no principled basis for allowing zero credit to be given in cases in which young persons face the threat of adultsentencing – and thus, as in this case, stand to benefit from the effective extension of youth sentence lengths – but not in all other cases.

This would seriously undermine the diminished sentence lengths for young persons mandated by ss. 3 and 38(2) of the YCJA. 59 For all of these reasons, I do not believe that one can use the stratagem of not giving any credit for pre-sentence custody as a wayof creating a sentence that meets the needs of the prevailing circumstances while at the same time purporting to keep the sentence as ayouth sentence. … 60 I conclude on this point by noting that the defence submission would require me to have resort to what I consider to be a strained,if not illogical,

interpretation of the sentencing provisions of the YCJA. It seems to me that the need to engage in that exercise may onlyserve as a signal that the sentence mandated by the Act is not the appropriate sentence. After considering the factors prescribed in s. 72 Justice Nordheimer found that an adult sentence was necessary to hold the young personaccountable. [26] Justice Nordheimer’s decision was reviewed by the Ontario Court of Appeal in R. v. J.S.R. 2012 ONCA 568 ,[2012] O.J. No. 4063 (Ont. C.A.).

Justice Feldman, for the court, in considering the appellant’s submission that the trial judge had erredin his decision, on the basis that it is a matter of discretion for the trial judge to subtract pre-sentence custody from the maximumsentence available under the YCJA, held at para. 146: … I see no error for two reasons. First, because it is a matter of discretion, Nordheimer J. was not required to give no credit for pre-sentence custody.

Second, it is clear from his conclusion on this issue, just quoted, that he dealt with that issue because it was raised bythe appellant in argument, but his decision on whether to impose an adult sentence was based on the three factors in s. 72(1) and not onthe pre-sentence custody submission one way or the other. [27] A youth justice court in determining and crafting an appropriate sentence under the YCJA, and in considering anapplication to impose an adult sentence upon a young person, clearly has an obligation to take into account any time that the youngperson has spent in pre-sentence detention as a result of the offence committed, but has a broad discretion as to what credit, if any, is tobe applied with respect to such pre-sentence detention.

The decisions of the Court of Appeal, including those referred to above, establishthat although it should only be in exceptional circumstances where a credit of less than 1:1 be applied, where applying a reduced credit,or even no credit at all, would allow the court to impose a youth sentence that would accomplish the sentencing purposes, and not becontrary to the sentencing principles of the YCJA, the sentencing judge may, in their discretion, do so. [28] Within the scope of that broad judicial discretion, if I accept the submission on behalf of the young person and, in takinginto account the time that the young person has spent in pre-sentence detention, decide to not deduct from the maximum youth sentenceavailable of three years – two in custody and one under supervision – the maximum sentence that will ultimately be imposed upon theyoung person will be a sentence of just under five years, with nearly four of those years spent in custody and one year in the communityunder supervision.

The core issue to be determined on this application is whether such a disposition would be sufficient to hold thisyoung person, J.K., accountable for his offending behaviour. [29] Before proceeding with my analysis and the conclusion of my decision I want to indicate that I have reviewed andconsidered the victim impact statements that were read out in court by the Crown and recognize the tremendous damage that has beenoccasioned to the victims and their family.

I have also considered the statements that have been filed by the young person and hisparents, and recognize, as well, that there have been significant impacts upon the young person and his family. Whatever decision I maketoday cannot change the reality of what happened on February 28, 2011, or undo the harm and consequences that have flowed from thoseevents. What I am required to do is to determine a fair and just disposition of these matters based upon the provisions of the applicablestatutes and case law.

ANALYSIS [30] Section 72(1) of the Act sets out three categories of factors that must be considered in the court’s determination ofwhether or not to impose an adult sentence on a young person who has committed a criminal offence for which such sanction isavailable. There is no hierarchy amongst the categories and accordingly the court must engage in a full and balanced assessment of all ofthe factors. (

i) The seriousness and circumstances of the offence [31] The facts upon which J.K. was found guilty of the offences before the court are set out in an Agreed Statement of Factsfiled as an exhibit, and have been summarized above.

In considering the seriousness and circumstances of the offences there are anumber of details to be noted: J.K attended at the residence of the victims uninvited and had brought with him a hunting style knife; theattack upon the victims, a mother and five year old child, took place in their home; estimated from the times provided in the AgreedStatement of Facts, the attack lasted for a period of just less than two hours; the physical attack upon the mother included at varioustimes, holding a knife to her throat, pushing her to the floor, grabbing her by the throat to the point where she could not breathe, strikingher in the face with a closed fist, strapping her to the bedpost of her bed with a belt and a necktie, attempting to cut her neck with acutlery knife, stabbing her in the neck with a pair of scissors, striking her in the head three times with a frying pan, setting the bedroomon fire with her tied to the bedpost and her son with her in the room, and then after she was able to escape from the burning house,pushing her to the ground and stepping on her neck and pushing down cutting off her ability to breathe; the sexual aspects of the attackupon the mother included kissing her while he held a knife to her throat, kissing her and fondling her breasts, ordering her, at knifepoint,to take off her clothes, taking off his pants and underwear and getting on top of her on her bed, grabbing at her breasts and attempting tohave sexual intercourse with her, rubbing his penis against her leg and vaginal area in an unsuccessful attempt to gain an erection; someof the attacks on the mother were apparently witnessed by the five year old child including grabbing her by the throat, attempting to cuther throat with the cutlery knife, striking her with the frying pan, and after they escaped from the home, pushing her to the ground and

stepping on her throat; by his pleas of guilty J.K. has acknowledged that he attempted to murder the mother and her five year old son – by definition, this includes the requisite mental element of an intent to kill; the home of the victim and her family was destroyed at an insured property loss, taking into account depreciation, of $351,365.21; five of the family’s pets, one dog and four cats, were killed in the fire; and the Ontario Fire Marshall Investigator has opined that the master bedroom would have experienced a “flashover” three to four minutes after the fire was ignited and had anyone been in the room at that time, it would have been impossible for them to survive. [ 32 ] The victim mother sustained severe physical injuries including second degree burns to her face, back of neck and shoulder, abrasion where she had been struck with the frying pan, smoke inhalation, non-penetrating and penetrating puncture/stab wounds to her neck, a puncture wound to her right lower leg, and a subsequently diagnosed skull fracture.

She was taken by ambulance to the local hospital where she was sedated and then airlifted to the Hamilton General Hospital. She remained sedated until March 2 nd and was released from the hospital on March 9 th , 11 days after her admission. Emotionally she suffered flashbacks and nightmares, was very fearful that someone would come to harm her or her family, and was preliminarily diagnosed of having acute stress disorder.

In her victim impact statement she describes the impact of these offences as having been very traumatic and devastating and states “My physical emotional wellbeing is something that will never be the same again. I am not the same person, it has changed my whole family.

I have been re-living every part of that horrible day on every level, having nightmares, daytime and night time.” She describes how she has seen counsellors, is on anti-depressants, had tried to go back to work but could not because of stress, how she has had depression, and anxiety attacks, and in her words: “It feels like a part of me is dead inside.” She states: “This is so devastating for both my son, and my self, and my family. What an innocent little boy had to endure in this incident, no child should!!!!

To have to listen to your little boy yell in horror for his daddy over and over again was so disheartening. I fought for my boy that day in every way possible. As well as for my other children that weren’t there. I wasn’t about to have my children motherless!” She goes on to speak of the impact upon her and her family of losing their home, their personal belongings and their family pets. [ 33 ] The five year old child victim sustained physical injuries including burns on the tops of his ears, right wrist and on his lower back. He was taken to the local hospital and released later that same day.

The victim impact statement completed on his behalf talks about how he experienced nightmares almost every night for the first year after the offences, how he would cry for the pets that died in the fire, and how he has been fearful to be away from his parents, especially his father. [ 34 ] The victim impact statement of the husband/father of the victims speaks of the initial shock upon being informed of the fire and the injuries to his wife and son, of having to explain to his children what had happened and having to comfort them in the loss of their home, belongings and pets.

He speaks of the devastation he experienced in going back to the house and seeing where his wife had been attacked, and he speaks of the impact that this has had upon his children and his relationship with his wife. [ 35 ] The

section 34 assessment report, prepared by Dr.

Joyce Radford, Psychologist, indicates that “In discussing the day of his charges, (J.K.) remembered that he “just snapped” and that according to J.K., it was the victim’s “verbal assault against his family that had made him react in rage.” The report notes that “While (J.K.) used the term “blacked out” to describe his reaction, and his mother reported that (J.K.) could not remember the details of the incident), J.K’s account of the events during this assessment would suggest that he was aware of himself at the time of the assault.” In the assessment report prepared by Dr. Timothy L.

Beal, Psychiatrist, it is reported that J.K. recalled the victim berating him about assaulting her son and hurling insults about his family being troublemakers, and that he got extremely angry and “snapped”. Building on these comments, counsel for the young person suggests that the offences were an isolated incident of reactive rage. I disagree.

This was not a momentary flash of anger or loss of judgment, this was not a single reactionary act of rage, it was a prolonged reign of terror that escalated quickly from a confrontation with the victim to a sexual assault, extremely violent and repeated physical assaults and then to a deliberate attempt to murder a mother and her five year old son. It is only through good fortune and the perseverance of the victim mother that her and her son survived. [ 36 ] J.K. acted alone in the commission of these offences, and the actions that he deliberately took caused tremendous consequential harm.

His blameworthiness and the degree of departure of his conduct from the norm that we would expect from ordinary citizens, is extreme. The horrific circumstances of these offences, the moral culpability of the offender, and the extensive damage caused, places the seriousness of these offences at the very high end of the scale. (ii) The age, maturity, character, background and previous record of the young person [ 37 ] J.K has just turned nineteen years of age. He was seventeen years and one month old when he committed these offences. As noted by Justice Nordheimer in R. v.

J.S.R. , supra , at para. 66 : “It seems to me that the closer the offender is to the age of eighteen, the statutory demarcation between young persons and adults, the more the age factor would tip the balance towards an adult sentence over a youth sentence.” [ 38 ] To consider in assessing his maturity, character, background and previous record, I have a pre-sentence report, a psychological assessment and a psychiatric assessment. [ 39 ] The pre-sentence report, in addition to providing some background information about the young person’s family and scholastic history as I have noted above, indicates that approximately a year prior to the date of the offences, J.K. began to exhibit problems in the community, often engaging in verbal altercations with peers in school and neighbours, developing a negative attitude and becoming more oppositional towards his parents.

In addition to these difficulties, his family was embroiled in ongoing involvement with the Children’s Aid Society. J.K. expressed his belief that the Society’s role was to harass his family and that the allegations made by the Society were unfounded. He expressed to the youth worker his frustration at not being able to assist his father and brother in physically intervening to prevent an apprehension of his siblings subsequent to his arrest. J.K’s mother advised that J.K would be welcome to return home when he is released.

J.K. however, appeared conflicted as to whether he should return home after he is released, as he is needed there and feels that with the support of his family he may be able to reintegrate back into the community. J.K. advised that he felt bad for what happened and wanted to forget his actions on that day; that the offence was a mistake on his part and he wanted to move on. The report does not disclose that J.K. has any substance abuse issues.

J.K. has been in detention at the Sprucedale Youth Centre since March 1, 2011 and his overall response to the treatment and programming offered there is described as positive. Since April 2011 he has been attending individual psychotherapy with Dr. Sander, focusing on familial issues, anger and aggression, criminal behaviour and issues related to the offences. Although there have been several reported incidents of inappropriate behaviour during his detention,

reports from the facility indicate that J.K. has routinely maintained the highest level of behaviour and generally presents as a polite and respectful individual, who follows through with staff direction without any issues. J.K.’s time at Sprucedale has been productive in that he has been engaging in psychotherapy treatment and has been applying himself to the education program, as he strives towards completing his high school diploma.

The writer of the report is unable to recommend suitable programs or services for J.K. in his community should he be released, and indicates that an extensive treatment program outside of his community, and perhaps in the range of one to two years, may be required to address the sexual aspects of his offences. [ 40 ] The psychological assessment prepared by the Centre for Children and Families in the Justice System reports that while at Sprucedale J.K. has generally presented as co-operative, self-motivated and goal oriented.

He quickly progressed through the level- system in order to earn extra privileges, has engaged in individual counselling sessions and has participated in pro-social activities. J.K. enjoys being part of a large family and prefers work to school. While in detention he has attended school and has not demonstrated any behavioural issues in the classroom. He has a passion for woodworking and has attained a 90 % average in that course. He reported having endured teasing for much of his life, mostly directed towards his Mexican Mennonite background, and that he sometimes feels that others are out to get him.

He reported that prior to his arrest he was part of a friendship group and he had a girlfriend. [ 41 ] The assessor noted that while recounting the events of his offences J.K. viewed his actions as impacting the female victim, and less easily understood the impact of his behaviour on the child victim, and that at the time, his primary concern was with running away and avoiding jail. She states that while J.K expressed remorse for his actions and the difficulties he has caused the victims’ family; his insight into the depth of the effects on his victim appeared to be limited. In the

summary

section of the report, the assessor states: “During discussions, (J.K.) was able to acknowledge the seriousness of his charges, clearly remembered the details of his actions, and identified numerous instances when he persisted with increased use of violence even though he was in disbelief of his behaviour.

During our review of the details with (J.K.) it became evident that his intention was to eliminate evidence of his wrong doings, for fear of going to jail. (J.K.) continues to hold a rather simplistic perspective of his charges and detainment, viewing his time as sufficient for his crime and his payment (of losing his freedom and family) as equal to if not worse than that suffered by the victims. (J.K.) more than once expressed the wish to move on with his life, hoping to be forgiven and believing it is best forgotten.” [ 42 ] Although the assessor expressed that some of the results ought to be interpreted with caution, the clinical assessment indicates that J.K may have “deficits in social skills, feeling of rejection by others and social isolation”.

He may be “socially inhibited for fear of rejection, conscientious about his self-image, and generally submissive or dependent in relationships”. He has a “marked distrust for sharing his feelings and experiences with others, resulting in him often downplaying his problems”. He views his family system “as a central pillar in his life”, and, in his statements about family “reflected an “all good” perspective and demonstrated little reflection on his future emancipation from his existing family system.

His responses also reflected his strong sense of dependency on his family for guidance, meaning, and nurturance.” His profile “suggests that he is suffering from a moderate level of anxiety, which may be specific to his time in custody and his expressed fear of adult jail”. There were no suicidal ideation or self-harm items noted. At times J.K. “vehemently expressed that he is not a rapist”, suggesting to the assessor that J.K. may have some “feelings of confusion or conflict over his offending behaviour”. His IQ scores fell within the Borderline Range at the 3 rd percentile.

Accordingly his adaptive skills, being those necessary for daily living without the assistance of others, were assessed, and the assessor concluded that “Taking into account the intellectual and adaptive functioning, the results suggest that although J.K. demonstrates some intellectual challenges, he is sufficiently capable of functioning, day-to-day, without assistance.” As his reasoning displays a preference for concrete thinking, rehabilitative efforts will have to take this into account. [ 43 ] J.K. was assessed as being at moderate risk for violence in the future.

This appraisal is based upon a consideration of: (

i) historical risk factors, which includes a consideration of the severe nature of these offences, his past history of violent behaviour, including a report that he has beaten people up to the point of breaking bones or causing unconsciousness, altercations in school and at Sprucedale, the incident in which he assaulted the victim’s oldest son, and his involvement in conflicts with neighbours and in his family’s conflict with the Children’s Aid Society; (ii) social/contextual factors, which includes his history and on-going sense of being rejected by peers, his poor social skills, his high level of stress and poor coping skills; (iii) individual/clinical factors, which include his having some attitudes that support the use of violence, sometimes seeing aggression as offering a successful solution to interpersonal conflict and as an effective means of teaching lessons to others – in this area the assessor highlighted as a critical risk factor, J.K.’s risk for poor compliance with interventions once he returns to the community, noting that “his ability to sustain gains made during his recent detainment at Sprucedale remains less than clear.”; and (iv) protective factors, which includes a concern that antisocial values are possibly modeled and promoted within his immediate family, and that “within such a climate, J.K. may find it difficult to adhere to the expectations of outside authorities, including those that are court imposed and related to treatment needs.” [ 44 ] The Psychiatric Assessment report from Dr.

Beal confirms the background information reported in the pre-sentence report and the psychological assessment. The report describes J.K.’s presentation at Sprucedale as quiet, cooperative, self-motivated, able to follow directions without incident, and as being eager to participate in programming, however identifies as weaknesses his capacity and pace of learning. While at Sprucedale J.K. has been participating in ongoing counselling, and progress has been made but very slowly, even after 55 individual sessions. With respect to clinical findings, Dr.

Beal concluded that J.K. does not suffer from a major mental disorder. His intellectual rating falls in the Borderline Range of intellectual functioning, meaning that compared to individuals with average intelligence, he will have difficulties with higher level thinking and reasoning, and may have more difficulty controlling impulses and planning ahead, deficits which can affect behaviour, especially in the “heat of the moment” when emotions override clear thinking. Dr. Beal notes that: “The most striking aspect of (J.K.’

s) background is his family environment which, in my opinion, has fostered many antisocial attitudes and behaviours. The family appears to function like a clan or gang within which loyalty is extreme but outsiders, particularly authorities, are viewed with mistrust and disregard.” While J.K. does possess some antisocial and narcissistic traits, they are not sufficient to warrant a diagnosis of Antisocial or Narcissistic Personality Disorder. Dr.

Beal notes that J.K “possesses many of the building blocks of a responsible and pro-social character including personal motivation, a strong work ethic, a sense of personal responsibility, and the capacity for cooperativeness.” In Dr.

Beal’s opinion J.K. is amenable to further treatment in an appropriate environment, noting that his detention has “provided him with the opportunity to develop his character in a structured and supervised setting where he has demonstrated many pro-social qualities including: willingness to help others, showing respect to authority and peers, accepting responsibility for misbehaviour, and compliance with treatment and programming.” Dr. Beal considers

J.K. at moderate risk of future violence without continued intervention. Noting J.K.’s progress in a structured and supervised setting, Dr.Beal recommends continuing his rehabilitation in such a setting with a graduated reintegration plan into the community with the supportof probationary or parole services for a lengthy period of time [45] With respect to J.K’s insight into his offending behaviour, Dr. Beal states: “(J.

K) appeared to lack an emotional appreciation for the impact his behaviour has had on his victims during the examination. It wasquite concerning to hear that (J.K.) intended to kill his victims to cover up his assaultive behaviour. More concerning is that (J.K.) feelsthat he has suffered more than his victims. This lack of empathy is consistent with an antisocial/narcissistic paradigm which can bedifficult to treat.

However, he has not had the opportunity to explore or process his offence in a therapeutic context. … The only time inour meetings that (J.K.) showed obvious signs of emotional distress was when he (was) recounting the details of his criminal actions,which is a positive indicator for moral capacity.” [46] While J.K. has no history of criminal charges, there are indications in the pre-sentence report and the assessments that hehas in the past been engaged in physical altercations and assaultive behaviour at school and in the community. [47] An assessment of these considerations under s. 72 is conflicted.

While J.K.’s age at the time of the offences may benearing the legal demarcation for adult responsibility, his cognitive deficits and character traits speak to a lower state of maturity. Applying the long-standing legal principle, confirmed by the Supreme Court of Canada decision of Abella J. in R. v.

D.B. 2008 SCC 25, [2008] 2 S.C.R. 3, at para. 41, that young people, because of their heightened vulnerability, less maturity and a reducedcapacity for moral judgment, are entitled to a presumption of diminished moral blameworthiness or culpability, and thus a differentapproach to punishment, would promote the imposition of a youth sentence.

While the assessors note that J.K. has been cooperative,motivated, generally well behaved, participating in the educational program and engaging in individual counselling over the past 23months of his detention, they also confirm that his progress has been slow and they are guarded about his prospects for continuing suchprogress if he is returned to the community, particularly given his close connection to his family and the negative impact that they mayhave on his “moral compass”.

The assessors recommend that he continue his education, counselling and treatment in a controlled andstructured setting, and that his eventual reintegration into the community be gradual and with the support of probationary or paroleservices for a lengthy period of time.

These rehabilitative challenges speak in favour of imposing an adult sentence which could providefor a more controlled and graduated reintegration into the community and for a longer period of supervision post custody to ensure thatJ.K.’s recent progress is maintained. (iii) Any other factors that the court considers relevant [48] In my analysis above I have already considered J.K.’s progress while in custody, including his behaviour, educationalprogress, social progress and prospects for rehabilitation. [49] Another relevant factor to be considered is the societal interest as described by Justice Nordheimer in R. v.

J.S.R., supra,at paras. 71 – 73: 71 …While I appreciate that the focus of the YCJA is on the young person and his or her rehabilitation, the interests of society as awhole are still relevant to the issue of sentencing. Put another way, while the focus of the YCJA may be “offender-centric” it is not“offender-exclusive”. The interests of the young person must be balanced against the societal interests in ensuring that young personswho commit serious violent offences are subject to meaningful penalties that will help protect the safety of the community at large.

Section 38 of the YCJA itself refers to “meaningful consequences” that have the objective of “the long term protection of the public”. Both of these concepts are also referred to in s. 3 relating to the principles underlying the Act. 72 I would further note that the

preamble to the YCJA refers to having a youth criminal justice system that commands respect. I assumethat the respect therein referred to is the respect of the public. If victims and the public at large do not view sentences imposed as beingmeaningful from their perspective, then the system will not command the respect that it must have.

When I refer to the public at large, Iam, of course, referring to reasonably informed, right thinking members of the public who are able to appreciate the delicate and difficultbalancing that has to take place between competing objectives when attempting to arrive at an appropriate sentence – all in the context ofthe special challenges and needs that young persons present. 73 In making this latter observation, I am mindful of the possibility that some will say that I am indirectly invoking the principle ofdenunciation that the Supreme Court of Canada has said has no application under the YCJA.

I do not believe that is the case. I am notattempting to arrive at a sentence the object of which is to show society’s censure of the conduct involved. That would be tantamount toexpressing denunciation. Rather I am attempting to recognize, as the YCJA itself does, that there is a legitimate public interest in thesentencing process involving young persons. Respect for the justice system commands a sentence that not only is, but is seen to be,reflective of the acts underlying the offence and the offender’s role in those acts.

We have the right to expect an appropriate degree ofaccountability and responsibility from all of our citizens, even our youngest citizens. [50] The societal interests in this case would be served best by a sentence that would allow for the offender to continue withhis progress in a secure and structured setting and for a graduated reintegration into the community with appropriate supervision for alengthy period of time to ensure that he maintains the progress that he has achieved and can be directed to avoid the negative influencesthat may jeopardize the gains that he has made. [51] J.K. is just nineteen.

If sentenced to the maximum available youth sentence, without deduction for any of the time that he has spent in pre-sentence detention, he would be released from custody when he is 21 and very shortly after his 22nd birthday no longerbe subject to any supervision. He has committed horrific offences and because of his limited cognitive abilities, social background andpersonality traits, his progress in gaining insight as to the consequences of his offending behaviour, his responsibility for his actions, andin dealing with the underlying issues that contributed to his actions, has been slow.

His path to effective rehabilitation and reintegration

into the community requires a further period of time in a structured setting, apart from the influences of his family and perceived rejection from peers and his community, followed by a lengthy period of community supervision, and in both components of the sentence, provision for ongoing therapeutic counselling. If J.K. is sentenced as an adult, he may or may not spend a greater period of time in actual custody, but there would be greater control in determining when and how he is to be reintegrated into the community, and provision for a more appropriate period of supervision.

CONCLUSION [ 52 ] On a balanced consideration of all of the factors required to be taken into account under s. 72 of the Act , I am satisfied that the Crown has established that a youth sentence is not sufficient to hold J.K. accountable for his offences of two counts of attempted murder and one count of sexual assault.

In particular the reality that this offender, if sentenced as a youth to the maximum sentence available, would in just three years’ time be left free of any supervision, is contrary to not only the needs of protecting the public, but also to the needs of the offender, and in particular his effective rehabilitation and reintegration into the community.

I am satisfied that only an adult sentence can accomplish these goals and thus hold this young person accountable for his offending behaviour. [ 53 ] Accordingly the Crown’s application is granted and J.K. will be sentenced as an adult for his offences of attempted murder, two counts, and sexual assault. Released: February 1, 2013 Signed: “Justice Kevin A. Sherwood”