WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to Subsections 110(1) and 111(1) and Section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure

No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

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

138. Offences

(1) Every person who contravenes Subsection 110(1) (Identity of offender not to be published), 111(1) (Identity of victim or witness not to be published)...or Section 129 (No subsequent disclosure)...

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

(b) is guilty of an offence punishable on summary conviction.

Court Information

Date: April 23, 2018

Court File No.: 4815-998-16-Y50368-099

Ontario Court of Justice

Youth Justice Court

In the Matter of the Youth Criminal Justice Act, S.C. 2002, c.1

Her Majesty the Queen

- v -

D.T.-K.

REASONS FOR SENTENCE

Before the Honourable Justice A. Tuck-Jackson

at 2201 Finch Avenue West, Toronto, Ontario

on Monday, April 23, 2018

PROTECTED FROM PUBLICATION BY SECTION 110 OF THE YOUTH CRIMINAL JUSTICE ACT

Appearances:

D. Scott, Counsel for the Crown

H. Dudding, Counsel for Mr. T.-K.

Monday, April 23, 2018

TUCK-JACKSON, J. (Orally):

D.T.-K. appears before me for sentencing following a plea of guilt to one count of possession of an unloaded prohibited firearm, namely, a sawed-off shotgun, together with readily accessible ammunition. This charge arises following the execution of a search warrant at the young person's residence almost two years ago, namely, back on May the 26th of 2016.

Overview of the Offence

I will begin with an overview of the circumstances of the underlying offence. On Thursday, May 26th of 2016, in the very early morning hours, a Criminal Code search warrant was executed at Unit […] at […] Avenue, in Toronto. At that location, Mr. T.-K. resided with his mother. The police located a .12 gauge sawed-off shotgun in the living room, secreted under a mattress. The police also located 33 rounds of .12 gauge shotgun shells in the front entrance closet. In particular, they were found in the pocket of a jacket hanging inside of that closet.

Further, inside of a duffle bag that was located in the living room, the police located: 106 rounds of .22 calibre ammunition; a magazine that contained 10 rounds of .9 millimetre ammunition; and, finally, a box that contained 39 rounds of .9 millimetre ammunition. Clearly, some of this ammunition was capable of being fired from the impugned sawed-off shotgun.

At the material time, Mr. T.-K. was in the bedroom of the unit in the company of his mother, T. T. Both were subsequently arrested and transported to 31 Division. He was held for a show cause hearing and subsequently released on a form of bail.

The young person does not have any valid paperwork or documents that permit him to possess the firearm and ammunition in question.

To sum up, what the police located was a .12 gauge sawed-off shotgun under a mattress on a bed in the living room, 33 rounds of .12 gauge shotgun shells which were located, as I have noted, in a pocket of a jacket hanging in the front closet. This ammunition was capable of being fired from the sawed-off shotgun. And in addition to those items, in a duffle bag, the police found 106 rounds of .22 calibre ammunition, a magazine containing 10 rounds of .9 millimetre ammunition, and a box containing 39 rounds of .9 millimetre ammunition.

It is not clear on the evidence before me for how long Mr. T.-K. was in constructive possession of these items. Further, it is common ground between the parties that it is unclear on the evidence before me under what circumstances he came into possession of those items and for what purpose.

Background of the Young Person

I will now move on to an overview of the circumstances of the young person. Mr. T.-K. is now 18 years of age. At the material time of the offence, he had just turned 17. He comes before the Court as a first offender. Prior to his arrest, he resided with his mother, as we have heard, with whom he has a particularly close relationship.

I have had the benefit of reviewing both a Pre-Sentence Report and a psychological and psychiatric report that was prepared under s. 34 of the Youth Criminal Justice Act. Those reports, taken together with certain information that Ms. Dudding has provided to the Court on behalf of her client, have provided me with the following picture of the young person whom I am about to sentence.

It is clear to me that Mr. T.-K.'s mother has always been very, very well-intentioned and a very hard-working individual. Notwithstanding that, unfortunately, the young person did not always grow up in an environment of stability akin to one that many young persons take for granted. Of note, until very recently, the young person's father has played virtually no role in his son's life. Further, the young person was exposed to domestic violence at the hands of another of his mother's life partners and, indeed, was the victim of violence on one particular occasion at that partner's hands. He has also had to cope with abuse that has been perpetrated on his older sister by her former life partner.

Of note, during his elementary school years, he was frequently absent from, or late for, school. During his grade three year, he moved in with his maternal uncle and aunt up in Bobcaygeon for part of the academic year. Further, his mother seemed unaware of a number of the academic and behavioural challenges that he has faced in school largely by reason of under-addressed ADHD.

I learned that, sadly, in 2015, Mr. T.-K. lost a cousin. I also know that right around the same time, he was the victim of an assault in the area of his workplace at Walmart, an incident that has resulted in ongoing fear for him.

I have learned that he has been using marijuana daily since the age of 17. I am told that he consumes approximately one joint per day and it is consumed for the purposes of mood regulation.

To Mr. T.-K.'s credit, by various accounts, he is regarded as a person with a very positive personality. He graduated from high school in June of 2017. School has, at times, been challenging given that he has presented with symptoms consistent with ADHD, and in Dr. Beitchman's report, it is noted that he meets the criteria of ADHD. Of note, he is prone to risky behaviour, particularly when he gets behind the wheel of a car, and, certainly, that lack of impulse control and tendency towards risky behaviour may very well be attributable to the under-addressed ADHD of which I have already spoken.

Again, to his credit, and no doubt using his mother as a positive role model, he has been steadily employed for quite some time. Of note, he has been steadily employed by Swiss Chalet since either the late summer or early fall of 2016, and before that, in 2015, he worked alongside his mother at Walmart.

It is very clear that Mr. T.-K. has a long-held interest in motor vehicles. He has owned motor vehicles. He has done co-op placements in auto body shops, and I am told that those placements have gone extremely well. He has impressed the people that he has worked for, and with, in those placements.

I know that he wants to pursue an auto body apprenticeship and eventually have his own auto body shop. I also know that he is hopeful of taking some college courses and getting a college degree that would support him in operating his own business. Certainly, there is every indication that he has the potential to fulfill all of those goals, particularly if he gets a handle on the ADHD symptoms.

What I found particularly interesting is that both the probation officer who prepared the Pre-Sentence Report in this matter and the officer from the Major Crime Unit who was interviewed for the purpose of the Pre-Sentence Report, they both view Mr. T.-K. as having a great deal of potential.

Sentencing Framework and Principles

The offence before me is one that can attract a sentence of a total length of two years and the two years can be broken down into a combination of sentences, for example.

The parties depart as to the fair and appropriate sentence in this case. It is the position of the Crown that the least restrictive sentence that can hold Mr. T.-K. accountable is a six-month Open Custody and Supervision Order, followed by a period of probation in the range of 18 months, but less credit for pre-sentence detention. The Crown also seeks certain ancillary orders, in particular, a weapons prohibition under s. 51(1) of the Youth Criminal Justice Act for a period of ten years. And Ms. Scott, on behalf of the Crown, also seeks an order authorizing the taking of a DNA sample.

Ms. Dudding, on behalf of Mr. T.-K., seeks a period of probation in the range of 18 to 24 months, including a period of community service. In the alternative, and in the event that the Court concludes that nothing short of a custodial sentence would be appropriate in this case, she urges me to conclude that a six-month Deferred Custody and Supervision Order to be followed by a period of probation would be sufficient to meet the fundamental purpose of sentencing a young person and would fulfill and further the principles of sentencing under the Youth Criminal Justice Act. While the defence takes no issue with the appropriateness of the weapons prohibition that the Crown seeks, the defence is opposed to the DNA order.

I certainly am in agreement that the fair and appropriate sentence in this case falls somewhere within the range of sentence that both parties are proposing. In identifying the fair and appropriate sentence, I must, above all else, ensure that the sentence that is imposed is consistent with the fundamental purpose of sentencing a young person. And that purpose is as follows: It is to hold a young person accountable for the offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. More simply put, what that means is that the sentence that I impose today must be one that has as its fundamental goal the long-term protection of the public. It must address the risk factors that brought the young person before the Court in the first place and it must support the young person going forward in a fashion that best protects the long-term protection of the public.

When I look to see whether or not the sentences that have been placed before me for my consideration fit, or are consistent with, that fundamental purpose, I also have to have regard to the governing principles of sentencing in relation to a young person. First of all, I must be mindful that the sentence that I impose must not exceed what an adult would receive in similar circumstances and I am confident in concluding that that is simply not the case in this matter, given what the parties have been placing before me.

I also have to be mindful of something called regional parity. Simply put, I have to ensure that the sentence that I impose today is consistent with sentences for similar young persons who have committed similar offences in the same Toronto Region. I wish to say that I am very grateful to both parties for placing before me a number of cases with which I was already familiar.

I also observe that sentencing is very much an individualized process. There is no case that is directly on point and I must be mindful of the individual circumstances of both the offence and the young person when I make my determination as to the fair and appropriate sentence.

Another very important principle that I must bear in mind is that I must consider non-custodial sanctions that are reasonable in the circumstances. Subject to proportionality, I must ensure that the sentence that I impose is the least restrictive one that is capable of achieving the fundamental purpose of sentencing and it must be least restrictive in terms of its duration and the extent to which it encroaches upon liberty. Subject to proportionality, the sentence that I impose must be the one that is most likely to rehabilitate Mr. T.-K. It must be the one that will promote a sense of responsibility in the young person and an acknowledgement of the harm done to the community in this matter.

I wish to pause at this point to make it very clear that while there is no particular victim of this offence, as is the case with many other offences, the community is a victim in this matter because the possession of a firearm together with ammunition puts the community at risk of harm. And, as was noted by Ms. Scott during the course of submissions, possession operates to support a market which, in turn, supports violence within the community.

The sentence that I impose may also operate to denounce Mr. T.-K.'s conduct and it may operate to deter him from engaging in this kind of conduct in the future. Above all else, the sentence that I impose today must be one that is proportionate both to the gravity of the offence and the young person's degree of moral blameworthiness.

Exceptional Case Analysis

It is common ground between the parties that I cannot impose a sentence of custody of any form unless I am satisfied that the offence before me for sentencing is what is called an exceptional case, as defined by paragraph 39(1)(d) of the Youth Criminal Justice Act. An exceptional case is an offence where the Crown has proceeded by way of Indictment, as it has in this case, and it is one where the aggravating circumstances of the offence render the imposition of a non-custodial sentence inconsistent with the purpose and principles of sentencing, which I have just gone over. Exceptional cases are the rare, non-violent cases where applying the general rule against a custodial disposition would undermine the purpose of the Youth Criminal Justice Act.

As has been made clear by the Ontario Court of Appeal in R. v. R.E.W., reported at 2006 CanLII 1761 (ON CA), [2006] O.J. No. 265, exceptional cases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can be justified and include those cases where the circumstances are so shocking as to threaten widely shared community values.

In R.E.W., the court articulated a relatively straightforward test for my consideration, and for all sentencing courts. In essence, would any disposition short of custody undermine public confidence in the youth criminal justice system?

As Mr. Justice Rosenberg, in R.E.W., made clear, the focus of the inquiry is on the offence itself. I am not, at this stage, to take into account any of the circumstances of the young person, including any presence or lack of presence of criminal antecedents or anything about his personal background, including factors that are very sympathetic to him as a result of his personal background.

Aggravating Factors

At this time, I want to review the aggravating features of the offence that is before me for sentencing. First of all, the gravity of the offence is high. It is the possession of a prohibited weapon, in particular, a sawed-off shotgun with readily accessible ammunition. That offence is inherently a very dangerous offence, and, as a result of that, the gravity of the offence is high. Secondly, in addition to being in possession of a sawed-off shotgun, Mr. T.-K. was also in possession of a significant amount, namely 33 rounds, of ammunition that were capable of being fired by that firearm. Wholly apart from being in possession of the shotgun and ammunition capable of being fired from it, he was also in possession of a loaded magazine. That magazine contained 10 rounds of ammunition. In addition to those ten rounds, there was, in close proximity to that magazine, 39 additional rounds of ammunition capable of being inserted into that magazine. And finally, he was also found in constructive possession of 106 rounds of .22 calibre ammunition.

So, simply put, this is not just a case where I am sentencing a young person for being in possession of a firearm together with a quantity of ammunition that is capable of being fired from that ammunition. Instead, I am finding him, and taking into account the fact that he is in, possession of a host of different kinds of ammunition, together with a magazine.

This collection of factors supports the inference that he has an involvement in firearms and ammunition that is simply more in depth than would be the case if he were simply found in possession of a sawed-off shotgun and ammunition capable of being fired from it.

It is also aggravating that none of the impugned items were stored in safe fashion. None of them were locked away, for example.

It is also aggravating that he possessed those items in a location which he shared with his mother. He placed his mother at risk of various forms of jeopardy. Those forms of jeopardy are threefold. First of all, he placed his mother in, inherently, a dangerous situation because it is inherently a dangerous situation to simply have a gun readily accessible with ammunition in a residence; secondly, he placed her at risk of physical harm if anyone came to learn of the presence in the home of the gun, ammunition and magazine, and were prepared to use force in order to take possession of any or all of those items; and thirdly, he placed his mother at risk of legal jeopardy, and, indeed, he placed her in legal jeopardy. This resulted, for a brief period of time, in a loss of liberty, and I am told that his mother faced those outstanding charges for a period of close to a year, if memory serves me correctly, and that means that she was subject to terms of bail. It also put her in a position where she was apart from her son for a very long period of time and I am sure that that was a considerable source of stress for her.

With respect to this young person's role in these offences, there is no evidence before the Court of joint possession, so I am in a position to infer that he was in sole possession of the items in question.

Mitigating Factors - Absence of Aggravating Circumstances

To be fair to the young person, it is important to note the absence of certain aggravating factors that might otherwise cast the circumstances of the offence in a different light. First of all, there is no evidence that the young person possessed the impugned items to further his own illicit activities. Secondly, he was not in possession of these items in a public place; he was not in possession of them at a school or on the street or in a motor vehicle or on public transit, for example. In that respect, this case is distinguishable from a number of the other cases that were placed before me for my consideration. Thirdly, I am mindful that the firearm was not loaded and this somewhat diminishes its inherent risk. And fourthly, I note that he was not found in actual possession of the items; instead, he was found in constructive possession of them, and again, this somewhat reduces their inherent dangerousness.

I have given a great deal of consideration to the aggravating features of the circumstances of the offence and I find it particularly aggravating that he simply was not in possession of the sawed-off shotgun and ammunition capable of being fired from it, but, in addition, he was in possession of other forms of ammunition, and that, in my respectful view, is a very serious aggravating factor. Secondly, the risk that he placed his mother in is another aggravating factor that I place a great deal of weight on.

I am mindful of the precedents that have been placed before me. Many courts have imposed or reached a conclusion, rather, that the gateway to custody is open under 39(1)(d) in relation to firearms-related offences. I wish to make it very clear that I am not concluding that every firearms case ought to attract a custodial sentence. There are many factual permutations that I can foresee where a court would quite reasonably conclude that a sentence of custody would not be necessary in order to further the fundamental purpose of sentencing and further the sentencing principles set out in s. 38(1) and (2) of the Youth Criminal Justice Act. However, in my respectful view, in the circumstances of this case, the aggravating features are such that I do regard this matter as an exceptional case, and, as a result, nothing short of some sort of custodial sentence would be sufficient to hold the young person accountable for his actions.

Custodial Options and Personal Circumstances

This brings me to the second phase of my analysis. The Youth Criminal Justice Act provides for a number of custodial options and in determining what custodial option would be the least restrictive sentence that would be sufficient to hold the young person accountable, I am entitled to take into account his personal circumstances. And I want to review those personal circumstances under the rubric of understanding the factors that mitigate sentence at this time.

First of all, I take into account that Mr. T.-K. pled guilty to this offence and did so in the face of triable issues. That guilty plea is significant because it tells me that he accepts responsibility for his actions. It tells me that he wanted to minimize the jeopardy that his mother faced. And in the face of legal arguments that could have been advanced on his behalf, it tells me that he very much wanted to take responsibility for his actions and for his choice.

Secondly, I take into account that Mr. T.-K. has no Youth Court record.

Thirdly, I am mindful of the multiple collateral consequences that have flowed for this young person as a result of his arrest and bail in this matter. I note, for example, he served 31 actual days of pre-sentence detention. It is common ground between the parties that I ought to treat that as the equivalent of 47 days and that is a long period of time for someone who comes before the Court with no previous findings of guilt.

I am also mindful of Mr. T.-K.'s comments during the preparation of his Pre-Sentence Report, in particular, that he found his experience at the Toronto South Detention Centre one that he does not want to repeat. Thus, I was left with the impression that that period of custody at the Toronto South Detention Centre very much had a deterrent impact on him.

The second collateral consequence that should not be minimized is that the young person has been facing these outstanding charges for one year and 1 months. That is an exceptionally long period of time for a young person to have that degree of uncertainty hanging over his head.

Thirdly, I am mindful that during that period of time, apart from the 31 days he spent in pre-sentence detention, he was the subject of either a curfew or house arrest and the house arrest, of course, was with certain exceptions, but the house arrest in particular, I am told, was served between November of 2016 and January of 2018. Again, that is a considerable period of time for a young person to be deprived of a great deal of liberty.

A fourth collateral consequence is that the young person was separated from his mother for an extensive period of time and I regard that as being highly punitive given the close relationship that the two of them have enjoyed.

Mr. T.-K. spoke very eloquently to the Court when he was given an opportunity to address the Court directly. And he made a point of noting that he was separated from his mother for a long period of time and unfortunately, at times, was placed in the hands of individuals who did not care for him in the same way that she did. I am also mindful that during his release on bail, he was bounced amongst three different sureties for reasons that were unrelated to his own misconduct. At times he was removed from the City of Toronto, a place where he felt most comfortable, and I am mindful of the hardship that that can create for a young person and the instability that it creates.

In addition, I am mindful that the young person has presented as open to counselling and rehabilitative programs during both his assessment and during his interview with the probation officer.

And finally, I treat it as mitigating that the choices that the Crown quite properly identified as being problematic seem to be connected to unaddressed or, at the very least, under-addressed ADHD symptomology, and, to the extent that impulse control contributed to poor choices, that does operate to, some degree, reduce the moral blameworthiness of Mr. T.-K.'s conduct.

Absence of Certain Mitigating Factors

Just as I have noted the absence of certain aggravating features of the case, it is important that I also note the absence of certain mitigating factors. I note, for example, that Mr. T.-K. has not always demonstrated exemplary behaviour while he was on bail. As Ms. Scott very fairly pointed out, during 2017, he was in breach of his curfew on three separate occasions in February, August and October. To be fair, however, there was not a suggestion that he engaged in any additional criminal conduct of any significant concern. And secondly, I note that Dr. Beitchman, in the s. 34 Report, concluded that he presents as a moderate, as opposed to low, risk for reoffending in the event that there were no interventions to support the young person.

Sentencing Decision

As I indicated earlier, sentencing is a very individualized process. When I take into account both the aggravating features of the case but also the absence of aggravating features, and when I take into account the presence of a number of mitigating factors, including the opinion of both the probation officer, and, to a degree, Dr. Beitchman, that the young person has a great deal of potential, I have concerns that placing the young person in a traditional custodial facility would operate to undo his progress and would not contribute to the long-term protection of the public. Instead, I think that the protection of the public in the long term would be better served if he remained in the community with the ongoing support of his mother and with additional supports provided by the probation officer and, in particular, with supports provided by the YJOP program with Central Toronto Youth Services. That type of support could contribute to providing him with the opportunity to reach his potential.

In the result, I am of the respectful view that the least restrictive sentence that can hold the young person accountable is, indeed, a Deferred Custody and Supervision Order of six months. The sentence, then, is a six-month Deferred Custody and Supervision Order on top of 31 days of pre-sentence detention, credited at 1.5 days for every day spent in custody. That is the equivalent of 47 days. In addition, the young person will be placed on probation for a period of 16 months. That brings us to a total period of just under a two-year sentence.

Before I go into the terms of both the Deferred Custody and Supervision Order together with the period of probation, I want to make sure that Mr. T.-K. understands that if his sentence is going particularly well and it becomes clear that he addresses the goals that are going to be set out in the sentence order earlier than expected, he can come back before me and ask that the sentence be terminated early. And that I hope would be an incentive for him to work hard and meaningfully towards reaching those goals.

Terms of the Deferred Custody and Supervision Order

Before I go over the terms of the Deferred Custody and Supervision Order, I will ask Ms. Dudding to confirm with her client a day of the week when it is appropriate for him to be out for three hours for the purposes of addressing the necessities of life.

--- Pause while Ms. Dudding speaks with Mr. T.-K.

MS. DUDDING: Saturday, please.

THE COURT: Okay. Between what three hours?

MS. DUDDING: If I could suggest to Mr. T.-K. that he consider doing something like 2 p.m. to 5 p.m.

THE COURT: Is that workable? Yes.

So I am going to go over the terms of the Deferred Custody and Supervision Order at this time. First of all, Mr. T.-K., you must keep the peace and be of good behaviour, which means you must stay out of trouble. You must appear before the Court when it is required of you. You must report to the sentence supervisor immediately today and then, thereafter, you will be under the supervision of your sentence supervisor. In essence, that is going to be the person who prepared the Pre-Sentence Report. Okay? So, your sentence supervisor for the Deferred Custody and Supervision Order will be the same person who is your probation officer. You must inform your sentence supervisor immediately on being arrested or questioned by the police, though I certainly hope that that is not going to be the case or come up. You will report to the police or any named individual as is instructed by your sentence supervisor. Again, I doubt that is going to be necessary. You will advise your sentence supervisor of your address and report immediately to the clerk of the court or your sentence supervisor of any change in that address, in your normal occupation, including employment, vocational or educational training and work, or any change in the young person's family or financial situation, or, frankly, any change that may reasonably be expected to affect the young person's ability to follow the conditions of the Deferred Custody and Supervision Order. In essence, you keep your sentence supervisor up to date of what is going on in your life and make sure that he or she knows about anything that might make it difficult for you to meet your obligations under the sentence.

You must not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by this order, and you will comply with any reasonable instructions that your sentence supervisor considers necessary in respect of any condition of conditional supervision in order to prevent the breach of that condition or to protect society.

So you will report today to your sentence supervisor. You will begin by reporting to the probation liaison officer at the courthouse, and, after that, there will be an appointment set up for you in the community and then you will report to that sentence supervisor in accordance with that schedule. Okay?

You will reside at an address approved of by your sentence supervisor and you are not to move from that address without advance permission from your sentence supervisor.

You will be subject to house arrest, okay? That means you must be in your place of residence -- is Mr. T.-K. still living at the address on […] Avenue, the apartment?

MS. DUDDING: I know he's still living with his mother and that she recently moved in January but I can't remember if that's the […] Avenue address. No, it's been changed with the court. Maybe I could ask Ms. T. just to remind us what the new address is?

THE COURT: And that doesn't have to be placed in the public record.

MS. DUDDING: Right.

THE COURT: What I am getting at is whether or not your client lives in an apartment or a condo or whether...

MS. DUDDING: I think it's a townhouse.

THE COURT: ...he lives in a detached house.

MS. DUDDING: I think it's a townhouse, if I'm not mistaken.

THE COURT: A townhouse?

MS. DUDDING: Is that right? Yes.

THE COURT: Okay.

So, when I indicate that he must be in his place of residence, he must be in his place of residence or property associated with that residence, so that can be the front yard and the backyard, except as follows: between 2 p.m. and 5 p.m. each Saturday in order to acquire the necessities of life; secondly, for any medical emergencies involving yourself or your mother; for going directly to and from and while being at school, employment, court appearances or religious services; for going directly to and from or being at any assessment, treatment or counselling sessions; except with the prior written approval of the sentence supervisor and that written approval is to be carried on Mr. T.-K. during those times; and also, except for the purposes of carrying out any legal obligations regarding compliance with the Deferred Custody and Supervision Order.

There is already, as part of the mandatory condition, a no weapons condition, so I do not need to repeat that.

With respect to counselling, you will take counselling as is recommended by your sentence supervisor, particularly in the following areas: symptoms associated with ADHD, substance abuse (including marijuana), employment skills development, and, finally, academic support. You will sign releases in favour of your sentence supervisor so that he or she can monitor your attendance at and progress in counselling.

You will make reasonable efforts to attend school and/or seek and maintain employment, and you will provide proof of those efforts to your sentence supervisor when requested.

And finally, within the first 45 days of this order, you must attend for an intake appointment with the Youth Justice Outreach Program operated through Central Toronto Youth Services. I saw that your probation officer wanted to make a referral to CTYS to the YJOP program. The YJOP program, in my understanding, is an excellent program that can address all of these issues. So, in essence, it can serve as sort of one-stop shopping for you, which means you have less work to do in terms of running around. Okay?

Do you understand the terms of the Deferred Custody and Supervision Order?

MR. T.-K.: Yes.

THE COURT: Yes? Are you prepared to follow them?

MR. T.-K.: Yes.

THE COURT: It is really important that you understand that if you don't follow those conditions, if you are found to have breached one of the conditions, you could be brought back before me and you could be ordered to step into custody for the period that remains of that Deferred Custody and Supervision Order. You'd have to step into a traditional custodial facility. Okay? So there are huge consequences if you do not follow those rules. Understand?

MR. T.-K.: Yes.

THE COURT: Yes? Okay.

Terms of the Probation Order

Following the conclusion of the Deferred Custody and Supervision Order, you will be on probation for a period of 16 months. The terms will be as follows: You must keep the peace and be of good behaviour, which means you must stay out of trouble. You must attend court if and when it is required of you. You must report to your probation officer within two business days following the completion of your Deferred Custody and Supervision Order. You must reside at an address approved of by your probation officer and you are not to move from that address without advance permission. You are not to possess a weapon as defined by the Criminal Code. You must take counselling as is recommended by your probation officer, particularly in the areas of symptoms associated with ADHD, substance abuse (including marijuana), employment skills development, academic support, and negative peer associations. And I apologize, we should also include negative peer associations as an enumerated area for the Deferred Custody and Supervision Order as well.

--- Pause while Ms. Dudding speaks with Mr. T.-K.

MS. DUDDING: Thank you.

THE COURT: Not at all.

--- Further pause while Ms. Dudding speaks with Mr. T.-K.

MS. DUDDING: Thank you, Your Honour. I appreciate that moment.

THE COURT: Not at all.

MS. DUDDING: Thank you.

THE COURT: So I have outlined the five counselling areas that need to be addressed. Is there something that, perhaps, I can clarify in my sentence?

MS. DUDDING: I think what -- Mr. T.-K. was making an inquiry of me as to whether or not -- I think that he's looking at the next 6 plus 16 months ahead of him and the work that you're describing in terms of all of the various forms of counselling as seeming very daunting and he was inquiring of me as to whether or not there's other modes that he can serve his sentence that might serve to reduce that time or perhaps reduce what I think is the next two years of going to be some hard going. And I was explaining to him that from my perspective, you're passing sentence now, you've considered the other options available and this is what you've determined such that I don't think I can make submissions advocating for anything other than what you're imposing right now. That's the concern, though, and I'm pointing that out to you because you may be able to say something to Mr. T.-K. about that.

THE COURT: I will. So let me finish the sentence...

MS. DUDDING: Thank you.

THE COURT: ...and then I'm going to loop back.

MS. DUDDING: Okay.

THE COURT: Okay.

You will sign releases in favour of your probation officer so that he or she can monitor your attendance at and progress in counselling. And you must make reasonable efforts to attend school and/or seek and maintain employment and provide proof of those efforts to your probation officer.

So, I have already listed for you all the terms of the Deferred Custody and Supervision Order and I have explained to you the consequences that can flow if you breach that order. Just so that you are clear, though, during the six-month Custody and Supervision Order you can go to work, you can pursue school and you can pursue rehabilitative programs. Okay? And those rehabilitative programs are designed to make sure that you do not get back into trouble.

With respect to probation, it is 16 months long. I acknowledge that is a long time. First of all, do you understand the terms of the probation order as I have outlined them or do you have any questions about them?

MR. T.-K.: I understand them.

THE COURT: Okay. Are you prepared to follow them?

MR. T.-K.: Yeah.

THE COURT: Okay. If you don't, the consequence is that you could be charged with failing to comply with a Youth Court sentence, and because you are now 18, you would be charged as an adult, which means that if you are found guilty, you would be sentenced as an adult.

Counselling and Rehabilitation

So let's go back to the counselling for a minute because it forms part of the Deferred Custody and Supervision Order and it also forms part of the Probation Order. You made some really bad choices to find yourself in the position you are in right now. You do not always make bad choices -- that is very clear to me from what I read about you -- but sometimes you do make bad choices. And it is apparent to me that you have lived with attention deficit hyperactivity disorder for many, many years, but it has not been properly addressed. There are lots of young people and adults who live with ADHD and when the symptoms are properly addressed, they lead highly functioning, fulfilling, successful lives. There are lots of people in this world who operate successful small businesses with ADHD. Okay?

It was suggested, for example, in the interview with your mother that you are not always making good choices about peer associations. That is why I have suggested that you get some counselling to make better peer choices because, again, you do not want to find yourself in this position again where you are before the Court and you are risking having your liberty taken from you.

You have a career identified and mapped out for you. You have already started the co-op placements while you were in high school. I would like to see you get some more employment skills so that you can take that goal to the next level. So this -- the counselling options that I have set out for you are actually designed to help you further the goals that you have already identified for yourself.

The reason I have included substance abuse counselling: I know that you have been using marijuana daily. I know that a lot of people who live with ADHD use marijuana to regulate their symptoms. From a health perspective, that is an incredibly poor choice. And looking forward, you cannot run a business and be smoking marijuana on a daily basis. It just is not going to work. So you are going to have to find other ways to cope with your ADHD symptoms and that is why I have included that area of counselling. If you are really serious about wanting to own your own business, you cannot be smoking marijuana. And you do not have to try and overcome that on your own either. You have to be open to getting some help for it.

So, I have also identified academic support. That is, in the event that you decide to pursue some college courses, I want to make sure that you get any type of help and support you need to maximize your potential at college. It is to put you on an equal playing field with other students.

So the counselling and the rehabilitative programs are not designed to be a punishment, Mr. T.-K. They are actually designed to help you fulfill your potential. And I have set out a list of five areas. It is up to you and your probation officer to figure out which areas need to be worked on first and I will leave it up to the two of you to work that out. Okay? Does that make sense?

MR. T.-K.: Yeah.

THE COURT: All right. And as I said at the outset, if you are able to reach those goals and make a ton of progress, I would be more than happy to see you with a request that says, "Look, I've been able to tick off all these boxes. I'm doing well. I'm making better choices. I'm not acting impulsively. I don't need the supervision of a probation order anymore." And I would be happy to shorten that order for you. But it is up to you to prove to yourself that you don't need that probation order. Okay?

MR. T.-K.: Yeah.

THE COURT: Okay.

Ancillary Orders

In addition, I will exercise my authority under s. 51(1) of the Youth Criminal Justice Act and for a period of ten years I am prohibiting you from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. So that is a separate stand-alone order that is going to last a lot longer than the probation order. Do you understand that?

MR. T.-K.: Yes.

THE COURT: Okay. Are you prepared to follow it?

MR. T.-K.: Yes.

THE COURT: And again, if you don't, you could be charged with failing to comply with a Youth Court sentence. Okay?

The Crown has asked that I make an order authorizing the taking of a DNA sample. I cannot do that unless I am satisfied that it is in the best interests of the administration of justice to do so. In reaching that decision, I have to take into account that you have no Youth Court record prior to this matter. Secondly, I have to take into account both the aggravating and the mitigating factors of the circumstances surrounding the commission of the offence. I have already outlined all of those. I am also bearing in mind that in the period pending the outcome of this matter, you did have difficulties complying with court orders. I also have to be mindful of your privacy interest and a young person has an enhanced privacy interest. When I balance all of those factors, and I am particularly mindful of a number of the aggravating features of the case, I am of the respectful view that it is in the best interests of the administration of justice to make the order, and so you are going to have to provide a sample of your DNA before you leave the courthouse today.

Finally, you do have the benefit of a s. 34 assessment. There has been no order in favour of the probation officer, granting the probation officer access to it, and I am wondering if, at this time, the defence would consent to an order granting the probation officer access to it and that way Mr. T.-K. does not have to retell that aspect of his story to his probation officer. And I am also wondering if it would make sense to grant access to any CTYS worker who would be working with Mr. T.-K.

--- Pause while Ms. Dudding speaks with Mr. T.-K.

MS. DUDDING: Yes, we'll consent to having that report made available to the individuals that you named.

THE COURT: Thank you. I think that's helpful to you, Mr. T.-K. It means you don't have to tell your story over and over again and I acknowledge that's hard to do. It also allows the people who are working with you to be able to hit the ground running.

So, pursuant to paragraph 119(1)(s) and with the consent of both parties, 119(1)(s) of the Youth Criminal Justice Act, access to the s. 34 report of Dr. Beitchman, dated December the 5th of 2017, is granted to any probation officer working with the young person and to anyone working with the young person at Central Toronto Youth Services. But to be clear, they cannot share it with anybody else unless there is a court order by me. Okay? So they have to keep it private.

Are there any questions about the sentence that I have imposed?

MS. SCOTT: Yes, the Crown is also requesting a forfeiture order pursuant to s. 491 for the firearm and the ammunition.

MS. DUDDING: That's on consent.

THE COURT: Okay.

MS. SCOTT: If that could just be marked on the Information since it's a 491.

THE COURT: Yes, pursuant to s. 491 of the Criminal Code, there will be a forfeiture order as it relates to the sawed-off shotgun and all of the ammunition as well as the magazine that was seized by the police during the execution of the search warrant in May of 2016 at the young person's residence.

Any other questions?

MS. DUDDING: No.

MS. SCOTT: No.

MS. DUDDING: I think there are some other Informations before the Court...

MS. SCOTT: Yes.

MS. DUDDING: ...on the adult record that are going to be withdrawn but we need to change records for that.

MS. SCOTT: Well, I think there's also other counts on the Youth Information.

MS. DUDDING: Oh, that's also true.

MS. SCOTT: Yes, so if they could be marked withdrawn.

THE COURT: They're noted withdrawn at the Crown's request.

If we could go on the adult record, please.

End of Reasons for Sentence