minicounsel

COURT OF APPEAL FOR ONTARIO

DATE: 20210614 DOCKET: C63079

Simmons, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Folorunsu Owusu Appellant

Counsel: Mark Halfyard and Chris Rudnicki, for the appellant Craig Harper, for the respondent

Heard: May 26, 2021 by video conference

On appeal from the sentence imposed on December 7, 2016 by Justice Ian V.B. Nordheimer of the Superior Court of Justice, with reasons reported at 2016 ONSC 7654.

Overview

1The appellant was convicted of two counts of second degree murder, one count of attempted murder, one count of aggravated assault, and one count of reckless discharge of a firearm. The offences arose from a mass shooting in Toronto on July 16, 2012, that began when he opened fire at a party.

2The appellant had decided to attend the party despite his knowledge that he was not welcome. He brought a loaded firearm.

3The appellant was ordered to leave the party by a man named Gifted, one of the party organizers. Gifted drew his own firearm, but was persuaded to put it away because he was told there were children around. When he did, the appellant pulled his gun and began shooting. Two of his shots hit Gifted, who returned fire. An unknown man associated with Gifted then produced a submachine gun and opened fire.

4Two people were killed and more than twenty were injured, including a twenty-two-month-old child. It was the worst mass shooting in Toronto’s history. The appellant, who was 17 years old at the time, did not fire the shots that resulted in the deaths, but was convicted of murder under s. 229 (c) of the Criminal Code, R.S.C., 1985, c. C-46, because he initiated the gunfire and knew that it would likely cause death.

5The appellant seeks leave to appeal from the decision of the sentencing judge granting the Crown’s application to impose an adult sentence on him. The appellant’s primary argument is that the sentencing judge erred in imposing an adult sentence because he misunderstood the Intensive Rehabilitative Custody and Supervision (IRCS) program and, as a result, concluded that it would not be effective in his circumstances. The appellant argues, further, that the sentencing judge failed to consider the collateral immigration consequences of an adult sentence. The appellant brings a fresh evidence application for this court’s use in the event this court finds an error affecting sentence and must sentence him anew.

6For the reasons that follow, the fresh evidence application is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.

The sentencing judge’s decision

7The appellant was sentenced in accordance with s. 72(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), as it existed at the time of the offences. As this court explained in R. v. M.W., 2017 ONCA 22, 134 O.R. (3d) 1, at para. 23, nothing turns on this: under the version of s. 72(1) then in force, the Crown was required to satisfy the court that the presumption of diminished moral blameworthiness had been rebutted and that a youth sentence would not be of a sufficient length to hold the young person accountable, just as under the current version.

8The sentencing judge was required to consider three factors set out under s. 72(1): the seriousness and circumstances of the offence; the age, maturity, character, background and previous record of the young person; and, any other factors that the court considered relevant.

9Concerning the seriousness and circumstances of the offence, the sentencing judge found that the appellant started the gunfight. He attended a party in an area of Scarborough where he knew he might not be welcome and took a handgun with him for that reason. He decided to produce his handgun when he was ordered to leave the party and to fire it while amongst a crowd. The sentencing judge described this conduct as alarming and horrific, compounded by the appellant’s knowledge or foresight that others would return fire with their own guns. Two people were killed as a result of the gunfire and many suffered life altering injuries.

10As to the second factor – the age, maturity, character, background and previous record of the appellant – the sentencing judge found that the appellant:

was 17 years old when the offences occurred, approximately seven months from his eighteenth birthday;
was almost 22 years old at time of sentencing;
was expelled from high school in grade 11, but completed his Ontario Secondary School Diploma while incarcerated;
began to use marijuana as a teenager and sold cocaine and marijuana;
had been found guilty of assault, theft under, possession of cocaine and failure to comply with a recognizance, none of which resulted in incarceration;
displayed good behaviour while in custody;
was given psychological treatment and testing and found to be a medium risk of re-offending;
denied that he shot Gifted; and
had a generally positive pre-sentence report.

11The sentencing judge noted that the appellant was found to be a suitable candidate for an IRCS order under s. 42(2)(r)(iii) of the YCJA but found that the value of such an order for the appellant was debatable. In particular, he noted that if a youth sentence were coupled with an IRCS order its effectiveness would be hampered because the appellant would be required to serve his custodial sentence in an adult provincial facility pursuant to s. 89 of the YCJA, and would lose IRCS funding/programming if an order were made requiring him to serve his sentence in a federal penitentiary. If the appellant were not sent to a federal penitentiary, the sentencing judge considered it unclear how well provincial institutions could deal with young persons subject to an IRCS order. He concluded: “I do not find the fact that the [appellant] qualifies for an IRCS order greatly influences the conclusion whether a youth or an adult sentence is appropriate.”

12The sentencing judge added that the appellant’s progress while in custody was the result of the structure and support that youth detention facilities had provided. The future was much less clear in the absence of this structure. The sentencing judge was concerned that the appellant had not acknowledged his central role in the shootings; on the contrary, he maintained that he was not responsible for firing the shots that started the gunfight. This, the sentencing judge stated, was of significance coupled with the fact that the appellant remained at medium risk of re-offending.

13The sentencing judge rejected counsel’s characterization of the appellant’s actions as impulsive or spontaneous, describing them instead as reflecting a conscious understanding of the problems his attendance at the party might pose, and his choice of how to deal with those problems. The sentencing judge stated that the appellant’s decision to draw and fire his gun was “the antithesis of spontaneity”. At the time of the gunfight, the appellant was on bail on charges of robbery and failure to appear. Under the bail conditions, he was not to possess firearms and was subject to a 10:00 p.m. curfew. His decision to attend the party in breach of these bail terms, with knowledge of the problems that might arise, was “conscious and deliberate”.

14On the third factor, which requires consideration of any other factors the court considers relevant, the sentencing judge addressed the interests of society and in particular the protection of the public, which he found must be balanced against the interests of young persons in rehabilitation and reintegration. The sentencing judge noted that if the appellant received the maximum youth sentence of seven years for second degree murder, pursuant to s. 42(2)(q)(ii) of the YCJA, he would be released from custody in four years. If he were to receive the maximum community supervision period of three years, he would be free of all supervision by approximately age 28. If, on the other hand, the appellant were to receive an adult sentence he would receive life imprisonment with a seven-year period of parole ineligibility. Because adult parole ineligibility runs from the date of detention, the appellant would be eligible for parole under an adult sentence one year before he would be released from prison to community supervision under a maximum youth sentence. An adult sentence therefore would not necessarily treat the appellant more harshly than a youth sentence. The primary benefit of an adult sentence would be the structure it would create for continued monitoring of the appellant’s conduct.

15The sentencing judge concluded that the seriousness and circumstances of the offence clearly favoured the imposition of an adult sentence, while the appellant’s age, maturity, character, background and previous record supported the imposition of a youth sentence. The sentencing judge recognized that the appellant had made significant progress while in the youth system but expressed the concern that the principal benefits of the youth system would be lost even if a youth sentence were imposed because the appellant would have to be transferred to an adult facility. The sentencing judge reiterated the problems he perceived with an IRCS order in the appellant’s case. Finally, the sentencing judge concluded that the appellant’s offences were horrendous and instilled fear in the public, and that accountability, which equates to retribution, required a punishment that properly reflected the moral culpability of the appellant.

16Balancing all of these factors, the sentencing judge concluded that the presumption of diminished moral blameworthiness had been rebutted and that the only sentence that would hold the appellant accountable was an adult sentence. It was also the only sentence commensurate with the damage that had been done, and the only sentence that would provide for the ongoing supervision of the appellant he considered necessary. He sentenced the appellant to life imprisonment with no parole eligibility for a period of seven years, concurrent on both counts of second degree murder, and to three years, concurrent, on the count of attempted murder. The appellant was credited with four years pre-trial custody and was sentenced to time served on the counts of aggravated assault and reckless discharge of a firearm.

The alleged IRCS error

17The focus of the appellant’s submissions was the sentencing judge’s analysis of the suitability of an IRCS order, which the sentencing judge properly considered in the context of assessing accountability. The appellant argues that the sentencing judge committed the error recognized by this court in M.W. Specifically, the sentencing judge erred in concluding that the value of an IRCS order was debatable because the appellant would serve his sentence in an adult institution, and as a result would lose the supports that made the IRCS program effective.

18In M.W., the sentencing judge imposed an adult sentence because, among other reasons, he was concerned that the appellants would be transferred to a federal institution where the funding for their IRCS orders would cease. This court held that the sentencing judge’s speculation was an error: s. 93(1) of the YCJA requires young persons serving a youth sentence to be transferred to a provincial correctional facility once they reach age 20, unless transfer to the federal system is warranted in the best interests of the young person or the public. There had been no suggestion that the appellants would be transferred to a federal institution.

19The appellant submits that the decision in M.W. is dispositive of this appeal. He says that there is no evidence that he could not be managed effectively by a seven-year IRCS order or that a life sentence under the supervision of the Parole Board of Canada would provide better support.

20We do not agree. The appellant was 21 years old when he was sentenced and, pursuant to s. 89(1) of the YCJA, was required to serve his sentence in an adult facility. (That the appellant appears to have remained in a youth facility beyond age 21 is not significant for purposes of the sentencing judge’s analysis.) Unlike in M.W., the sentencing judge was concerned with the implications flowing from the appellant serving his sentence in an adult facility, regardless of whether that facility was provincial or federal. As he put it, “[i]t is quite apparent that the adult system is simply not set up to accommodate young persons, who are required to serve a sentence in an adult facility, but for whom it is desirable that they received the type of attention, and the type of programming, that is available in the youth system.”

21The sentencing judge’s concerns about the suitability of the IRCS program for the appellant were based on more than simply where the sentence would be served and the risk of transfer to a federal facility. He was also concerned that the appellant had not acknowledged responsibility for the offences, a key consideration in the accountability analysis. Finally, as the Crown notes, other errors found in M.W. did not occur in this case, including unjustified concern in enforcement of the IRCS program and an erroneous belief that actual credit had to be given for pre-sentence custody when imposing a youth sentence.

22However, even assuming that the sentencing judge erred concerning the value of an IRCS order, there is no basis for this court to intervene. Errors in the reasoning process do not justify intervention on appeal per se; any error must have had an impact on the sentence imposed. In the absence of an error that impacted the sentence, there is no basis to intervene unless a sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.

23In this case, the appellant’s eligibility for an IRCS order was simply one consideration relevant to the question of accountability. As the sentencing judge stated: “I do not find the fact that the [appellant] qualifies for an IRCS order greatly influences the conclusion whether a youth or an adult sentence is appropriate.” Put another way, the appellant’s sentence would have been the same regardless of the alleged error concerning the IRCS program. Rehabilitation was only one factor relevant to the question of accountability and was not determinative of the matter. The sentencing judge properly recognized that the central question he had to determine was whether or not a youth sentence would have sufficient length to hold the appellant accountable for his offending behaviour, and he found that it would not. This finding was open to the judge and is entitled to deference.

24The alleged error concerning the IRCS program did not have an impact on the sentencing judge’s conclusion that the Crown had rebutted the presumption of reduced moral culpability. It was irrelevant to that issue: M.W., at para. 107. The sentencing judge rejected the appellant’s characterization of his conduct as “impulsive”. On the contrary, he found that the appellant’s decisions reflected “a conscious understanding of the potential for problems associated with his attendance, and his choice as to the manner in which he was going to be able to respond to those problems.” He noted that there was no evidence that the appellant was suffering from a mental illness or disability at the time of the events that would have impaired his ability to understand the moral impact of his actions. The sentencing judge noted, further, that the appellant was on bail on charges of robbery and failure to appear and was in breach of both a weapons ban and a curfew order when he committed the offences.

25The sentencing judge’s characterization of the appellant’s actions as “conscious and deliberate” is amply supported on the record. He considered the age, maturity, and the conduct of the appellant both before and after the offence – his improvement in custody as well as the medium risk of re-offending that he posed – and concluded that the presumption of diminished moral blameworthiness had been rebutted. This conclusion reveals no error and is entitled to deference.

26In summary, there is no basis to interfere with the sentencing judge’s conclusions that the Crown had rebutted the presumption of reduced moral culpability; that only an adult sentence would hold the appellant accountable for his role in the events that led to two murders and more than 20 people being injured; that only an adult sentence was commensurate with the damage that was done; and, that only an adult sentence would provide for the ongoing supervision of the appellant he found necessary. This ground of appeal must be rejected.

The collateral immigration consequences

27The appellant submits that the trial judge failed to take into account the immigration consequences that would result from the imposition of an adult sentence. The appellant says that he is a permanent resident but not a citizen of Canada and would be subject to a removal order unless sentenced to a youth sentence under the YCJA.

28The immigration consequences of an adult sentence were the subject of brief submissions from trial counsel but were not addressed by the sentencing judge in his decision. The sentencing judge should have addressed the matter, but his failure to do so was harmless in the circumstances.

29Section 718.1 of the Criminal Code codifies proportionality as the fundamental principle of sentencing in the adult context. Collateral consequences are not to be applied in a manner that undermines that principle. As the Supreme Court of Canada has emphasized, collateral consequences “cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender”: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 56.

30The appellant caused the largest mass shooting in Toronto’s history. The sentencing judge concluded an adult sentence was required because he was satisfied that a youth sentence would not “have sufficient length to hold [the appellant] accountable for his offending behaviour” in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and s. 38 of the YCJA. The collateral immigration consequences could not have reduced the sentence to a youth sentence.

31This ground of appeal must be rejected.

The fresh evidence

32As we have not found an error requiring that we sentence the appellant anew, the application to admit fresh evidence is dismissed.

Conclusion

33Leave to appeal sentence is granted, but the appeal is dismissed.

“Janet Simmons J.A.”

“E.E. Gillese J.A.”

“Grant Huscroft J.A.”

R. v. Owusu, 2021 ONCA 417

Case Summary

Overview

The sentencing judge’s decision