R. v. N.M., 2021 ONCJ 617

minicounsel

Footnotes

Under s. 110 of the Youth Criminal Justice Act it is a serious criminal offence, punishable by up to two years’ imprisonment, for anyone to publish the identity of a young person charged with an offence or to publish any information that could lead to disclosure of the young person’s identity.
The agreed statement of facts gives 1 February as the date of death. The post-mortem report gives 30 January and 1 February as the date of death, distinguishing between neurological death and somatic death, i.e. when Mr. Paonessa was removed from life support.
Planning and deliberation do not necessarily require a long period of time or sophistication.
R. v. D.B. , 2008 SCC 25 .
Youth Criminal Justice Act, s. 42(2)(q).
Among the many things people will argue about is whether “black” should be capitalized or not. Anyone who wants to capitalize Black is welcome to do so. However, as the Nova Scotia Court of Appeal commented in R. v. Anderson, 2021 NSCA 62 , there is no consistency across all users. That court opted to capitalize both Black and White, in the first instance I can recall ever seeing the capitalization of white as a descriptor of race. I decline to do so. I wonder that if I were to capitalize black and white, would I then capitalize bi-racial, which is a more accurate descriptor of N.M.? (Ms. Pemberton, the author of the extended pre-sentence report capitalizes “Biracial”, again the first time I have ever seen that done). While it is clear that language changes over time, consistency, including consistency with rules of grammar, is not without its benefits and change should not be embraced for its own sake and without reasoned consideration. Black and white as descriptors are not the same as traditionally capitalized descriptors that have been capitalized, such as geographic, national or tribal nomenclature, e.g. African, Vietnamese or Mohawk for random examples. (A balanced assessment of the capitalization issue can be found in The Case for Capitalizing the B in Black:Black and white are both historically created racial identities—and whatever rule applies to one should apply to the other, Kwame Anthony Appiah, The Atlantic, available at: https://www.theatlantic.com/ideas/archive/2020/06/time-to-capitalize-blackand-white/613159/ )
As I mention elsewhere, N.M. said he did get some counselling, but it was not productive because his father was not involved.
Ms. B. was noted as the primary caregiver during this period.
It was a dynamic reality. There was a point where the Paonessas wanted N.M. moved, but did not want to give up on him. There were times when Mr. Paonessa would threaten removal was imminent, even though that was contrary to CAS policy for obvious reasons. CAS records show that N.M. made seven requests to be removed from the Paonessa home; N.M.’s estimate was fifteen to twenty requests. N.M. said that he was conflicted by concerns of wanting to move, worrying about adapting to a new placement and wanting to give his current placement a chance. None of that is surprising.
Racial tension (as opposed to cultural suitability) did not seem to be an issue in the Paonessa placement. However, Mr. Paonessa’s manner of dealing with N.M. was reflected in a 2015 CAS investigation relating to the placement of another foster-child.
A very positive, third-party assessment of N.M.’s inherent decency from a person with experience working with children from broken families can be found in the letter from Carla Hamlyn, who came to know him in 2017-2018.
2018 ONSC 2527 .
2018 ONSC 5186 .
2021 NSCA 62 .
2021 ONCA 680 .
.
(2007) 2007 ONCA 144 , 218 C.C.C. (3d) 409 .
R. v. W.M., 2017 ONCA 22 .
R. v. Chol , 2018 BCCA 179 .
, [2009] O.J. No. 1662 , Ontario Superior Court.
R. v. O.(A.), supra, at paragraph 46.
R. c. M.(C.A.) , [1996] 1 S.C.R. 500 , paragraph 80 .
See, R. v. A.(O), supra, at paragraph 48.
R. v. Ferriman, [2006] O.J. No. 3950 (McCombs J., SCJ) .
See, e.g. R. v. McClements , 2017 MBCA 104 ; [2017] SCCA No. 488; R. v. Manitowabi , 2014 ONCA 301 , R. v. Logan , 2009 ONCA 402 , R. v. Joseph , 2020 ONCA 73 , R. v. Anderson, 2018 MBCA 42 , R. v. E.D., 2008 ABPC 231 / 2010 ABCA 69 .
See, e.g. R. v. M.B. , 2016 ONCA 760 , [2016] O.J. No. 5365 (CA) , especially paragraphs 7 , 10, 11.
2018 ONSC 5280 .
[2017] B.C.J. No. 1858 .
The provincial director has the authority under s. 93(1) of the YCJA to permit a young person to continue to serve his or her sentence in a youth custody facility. This is not my decision to make, but it seems to me that N.M.’s circumstances, needs and progress to date would favour a continuation of the status-quo despite his chronological age.
No approval by the provincial director was presented in the course of sentencing, but I do not see that as an impediment to structuring the sentence in this conditional way since all of the other prerequisites for an IRCS order have been made out here. If the provincial director makes the relevant determination under s. 42(7)(d), which I hope would happen, then the IRCS order structure will apply to N.M.’s sentence, including both the custodial and conditional supervision elements.

Court File No.: St. Catharines YNR19-0601 Date: 2021.12.02

Ontario Court of Justice

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

N.M. ¹ (A Young Person Within the Meaning of the Youth Criminal Justice Act)

Before: Justice Fergus ODonnell

Reasons for sentence delivered on 29 November, 2021 Written reasons released on 02 December, 2021

Counsel: Andrew Brown and Kevin Kim............................................................................. for the Crown George Walker, Q.C. and Christopher Raimondo.............................. for the defendant, N.M.

Fergus ODonnell J.:

Overview

I am called on this afternoon to deal with three intertwined tragedies: a. First and foremost, the death of Tony Paonessa, a father, a husband, a friend to many and an active and beloved member of the Niagara community who died far, far too early and in a way and in circumstances in which no person should die. b. Second, that Mr. Paonessa’s death came at the hands of a young person from a troubled background who was in the care of Mr. Paonessa and his wife and who now faces the consequences for committing one of the most serious crimes known to law. c. Third, the lingering concern that all of this might have been avoided, if only a few circumstances had been a bit different.
The seventeenth-century English poet, John Donne, wrote this about the inter-relationship among human beings:

No man is an island entire of itself; every man is a piece of the continent, a part of the main; … any man's death diminishes me, because I am involved in mankind.
Tony’s brother Sam wrote that, “My little brother had beautiful hazel eyes and a handsome face that loved to smile, a big heart that cared about people … [He] loved life and loved to bless others.” The Crown’s sentencing materials included a photograph of Tony driving a convertible in what looks like a parade of some sort, with a big smile projecting across his mouth and eyes, a photograph that tracks perfectly the image portrayed by his big brother’s words.
Tragically, Tony Paonessa died on 1 February, 2019, ² three days after his seventeen-year-old foster-son N.M. struck him once in the head with an aluminum baseball bat after an argument. Mr. Paonessa was fifty-two years old.
It seems indisputable on the material before me that Mr. Paonessa’s death was very much a blow not only to his immediate and wider family but also to the broader society of Niagara. As Mr. Brown very fairly observed, the Paonessa family’s purpose and engagement in society was much greater than many in society. Around two thousand people came to mourn his death, an incredible measure of a person’s impact on his friends, family, neighbours, acquaintances and community. The fact that his death arose in the context of the family’s decade-long history of welcoming foster children and international students into their home is a particularly cruel irony. His death diminishes us.
My task against the background of that loss is to determine a fit and proper sentence for N.M. N.M. is a young person under Canadian criminal law, because he was under the age of eighteen when he killed Mr. Paonessa. The Crown says that I should sentence N.M. as an adult; N.M.’s lawyers say I should sentence him as a young person. The outcome of my decision would affect both where N.M. serves his sentence and what format and length that sentence would have.
In the course of my reasons I shall discuss: a. The legal and procedural background. b. What happened on 29 January, 2019 and leading up to that day. c. The victim impact materials. d. What this decision is not about. e. N.M.’s background. f. N.M.’s comments about what happened. g. Has the Crown proved that an adult sentence is justified?

The Legal and Procedural Background

N.M. struck Mr. Paonessa with an aluminum baseball bat after an argument in the evening of 29 January, 2019. He fled the house and surrendered nearby within about half an hour. He has been in custody ever since. Mr. Paonessa died of his injuries three days later.
N.M. retained counsel and his lawyers and the Crown arranged a preliminary hearing, which the Covid-19 pandemic upended in early 2020. The Crown and defence and the pre-trial judge, however, continued discussions. On 21 October, 2020 N.M. pleaded guilty to second-degree murder before the pre-trial judge. The Crown read an agreed statement of facts into the record and N.M. was found guilty. The case was put over to obtain reports on N.M. and to select a date for sentencing submissions. In late 2020, however, the judge became ill and it eventually became apparent that he would be absent for a prolonged period. At that point, the charge was already close to two years old and N.M. had been in custody from the day of the offence. As a result, the Crown and defence agreed that I should take over the sentencing under s. 669.2 of the Criminal Code. Coincidentally, it was I who had dealt with N.M. on his only previous criminal charge.
There are two classifications of murder in Canada, first-degree murder and second-degree murder. First-degree murder is limited to cases where the killing was “planned and deliberate” ³ and to offences where the victim was a police officer or similar person acting in the course of his or her duties or where death was caused while the offender was committing certain other offences.
Second-degree murder captures all other forms of murder that are not first-degree. It includes the unlawful killing of another person where the offender means to cause death or means to cause bodily harm that the offender knows is likely to cause death and is reckless about, “whether death ensues or not.”
An adult offender found guilty of second-degree murder would face an automatic life sentence, with minimum parole eligibility fixed by the sentencing judge between ten and twenty-five years. After release from the penitentiary, that offender would be on parole until the day he died.
Where a young person has been found guilty of second-degree murder, the Crown can apply to the sentencing court to have an an adult sentence imposed on the young person. That is what the Crown has done here. For me to impose an adult sentence on N.M., the Crown must prove two things: a. First, the Crown must rebut, “the presumption of diminished moral blameworthiness or culpability of the young person,” that presumption being one of the fundamental underpinnings of the Youth Criminal Justice Act (“YCJA”) treating young people differently than adult offenders; and b. Second, the Crown must show that a youth sentence would be, “of insufficient length to hold the young person accountable for his”, offence. (see YCJA, s. 72)

If the Crown cannot demonstrate both of those preconditions are met, then I must impose a youth sentence on N.M.
It is important to remember always that the answers to those questions in no way diminish the enormity of N.M.’s crime. His crime and its impacts were and remain huge and it was inescapably wrong. The specific questions I must answer, however, have been framed by Parliament in recognition of the fact that automatically treating young offenders in the same way that one would treat an adult offender would be unjust. The Youth Criminal Justice Act has both a lengthy preamble and a long statement of principle explaining precisely how and why young offenders must be treated differently than adult offenders. It also bears noting that the principle of diminished moral responsibility has been recognized by the Supreme Court of Canada as a principle of fundamental justice ⁴ and special treatment of youthful offenders is mandated by the United Nations Convention on the Rights of the Child.
A youth sentence for second-degree murder is fixed as a maximum seven-year sentence made up of two components, namely: a. Custody for not more than four years, and, b. The balance under conditional supervision. ⁵
As of today, N.M. has spent exactly thirty-four months in custody or just under three years. In most cases, a person who has served time in pre-sentence custody will receive credit for that time. The Crown and defence agree that I have three options open to me, guided always by the test set out in s. 72 of the Youth Criminal Justice Act: a. I can impose a youth sentence of up to seven years (YCJA, s. 42(2)(q)(ii)) less credit for N.M.’s time in custody. Applying the usual, but not universal, rules of credit for pre-sentence custody (which give credit for pre-sentence custody at a rate of one and a half days for each day served), that would mean that N.M. has already served the maximum custodial portion of a youth sentence. b. I can impose an adult sentence, in which case N.M.’s pre-sentence custody of thirty-four months would count towards his parole eligibility date. In the penitentiary he would be eligible for parole in about four years from now. c. I could impose a youth sentence of up to seven years, but without granting credit for N.M.’s pre-sentence custody. I would then have to split the sentence into a maximum of four years of custody with the balance under community supervision. The defence suggests that a youth sentence for N.M. should include an Intensive Rehabilitative Custody and Supervision order under s. 42(2)(r)(iii) of the YCJA.

What Happened? The Murder and a Brief Summary of the Antecedent History

At the time of the murder, N.M. was a grade twelve student. He had been living with the Paonessa family in Niagara Falls for about four years, as a foster child under the supervision of the Children’s Aid Society of Haldimand-Norfolk. The household consisted of Tony and Medina Paonessa, their sixteen year old son (A.P.) and fourteen year old daughter (J.P.) and N.M. and one other foster-son (D.C.), who was fifteen. Mr. and Mrs. Paonessa also had a twenty-two year old daughter, Maria, who was away at college. The Paonessas had hosted foster children and international students for about a decade.
The pre-sentence report recites that N.M. was placed with the Paonessa family in 2015. There were some early issues about his choice of peers, marihuana use, skipping church and his relationship with male authority figures, but soon after he was charged with a 2016 schoolyard assault, his behaviour improved a lot and he seemed upbeat and engaged with the family and the church. By 2018, however, there were re-emergent concerns about N.M. resenting being told what to do.
In the months before 29 January, 2019 there was increasing tension in the household, especially between Mr. Paonessa and N.M. The police attended in late April, 2018 and N.M. told the responding officer that Mr. Paonessa was challenging him and “getting in his face”; N.M. also expressed displeasure with how Mr. Paonessa treated Mrs. Paonessa. Mr. Paonessa had said that if N.M. didn’t like it, “he knew where the door was” and could leave, but the responding officer counseled Mr. Paonessa that that was not an appropriate response. Mr. Paonessa replied that in that case he would cease talking to N.M. and they would be “two ships passing in the night.”
Mr. Paonessa had told a friend that he was unhappy with the situation at home, including financial issues. There were issues about N.M. remaining in the family and Mr. Paonessa felt that his wife took N.M.’s side. Mrs. Paonessa said there were issues between her and her husband over financial issues and over fostering. The Paonessas’ daughter A.P. said that N.M. did not like authority figures, being told what to do or attending school and that he was behaving “sketchy” towards the family in the weeks leading up to her father’s death. She and N.M. had argued.
From the pre-sentence report, which cites N.M.’s child protection worker at length, it is unclear if CAS/FACS was aware of the April, 2018 incident where N.M. called the police as a result of the confrontation between him and Mr. Paonessa set out above. I note that the responding police officer on that day described N.M. as appearing to, “be acting maturely and only wanted to avoid familial confrontation and for things to be peaceful in the home.”
N.M. had been placed in foster-care after leaving his father’s care and after an unsuccessful effort to live with his grandfather, of which more is said below. N.M. said that although he did not want to move back with his father after leaving his grandfather, being sent to foster-care seemed like a betrayal, but he was happy to live with a real bed and a family environment. However, the family were “very Christian” and there were certain movies or music that would be out of bounds. He did miss Reggae and Caribbean food and felt an absence of cultural support.
N.M. said that for the first year or two he felt as if he did not belong in the Paonessa house; life in a foster-home was hard because he would see the Paonessas’ birth children hugging their parents and telling them they loved them. His early experimentation with marihuana did not improve his standing. He said Mr. Paonessa was demeaning to him and told N.M., “you ruined my life, you ruined my house, I hate you, you don’t belong here.” N.M. would ask for a new placement or run away; he said he was never told why he could not live with his mother.
N.M. reported a shifting dynamic in the Paonessa home, in which there was increasing friction between Mr. and Mrs. Paonessa, resulting in him feeling that he was placed, “in the middle of their marriage”. Mrs. Paonessa confided in him, even telling him divorce was imminent. This was reminiscent to N.M. of the marital discord he had experienced with his own parents.
In December of 2018, N.M. reported to his child protection worker that Mr. Paonessa hated him and had “exploded” at him and that everyone “walks on eggshells” around him. N.M. said that Mr. Paonessa had been angry towards him for a few months. Family and Children’s Services looked into this and ascribed it to “Alpha male conflict” between Mr. Paonessa and N.M.
Soon after Mr. Paonessa arrived home at 9 p.m. on 29 January, 2019 he and N.M. argued heatedly. It is not entirely clear what the argument was about but Mrs. Paonessa recalled her husband telling N.M. he should be wearing a shirt; there were a lot of issues between the two of them, she said, and her husband could be picky with N.M. That night, she had allowed N.M. to eat his dinner downstairs and Mr. Paonessa felt N.M. should eat with the rest of the family. Mr. Paonessa told N.M. he was not part of the family and that he was going to arrange for N.M. to be removed and housed elsewhere. N.M. called Mr. Paonessa names and said he was a lousy father who treated his family badly, but he made no threats to Mr. Paonessa. Mrs. Paonessa intervened and sent N.M. to his bedroom in the basement. Mr. Paonessa then went into the family room to watch a movie with his daughter, A.P.
A few minutes later Mr. Paonessa bent forward from a standing position to put the TV remote down when N.M. entered the family room and, without warning, struck Mr. Paonessa one time in the back of his head with an aluminum baseball bat. Mr. Paonessa fell to the ground within about a minute, likely less, unconscious and bleeding and N.M. called him a bitch. Mr. Paonessa’s daughter witnessed this. She said that N.M. waited a minute before leaving. She said that she did not think N.M. would do such a thing or that it was planned; when N.M. gets angry, she said, he acts on impulse. Mrs. Paonessa said an act like this was not N.M.’s personality.
N.M. fled the house with the baseball bat, wearing only a flannel shirt, jeans and slippers into the -7C January night. At 9:32 p.m., N.M. approached a police officer about two kilometres away with his hands up and said who he was. The following day, N.M. told the police where he had hidden the bat, in some bushes.
While everyone’s perception of time varies, it appears certain from the witness statements that from the start of the argument between Mr. Paonessa and N.M. fleeing the house at most fifteen minutes passed.
Meanwhile, the family called 911. The agony expressed in the voice of Mr. Paonessa’s daughter is simply excruciating, understandably so. Mr. Paonessa was taken initially to the Niagara Falls General Hospital, whence he was transferred by air to Hamilton. He was pronounced neurologically dead the following day, on 30 January, and was removed from life support on 1 February. The cause of death was blunt-force trauma.
N.M.’s charges were sequentially raised from assault with a weapon to aggravated assault to second-degree murder.

The Victim Impact Materials

The victim impact statement from Mr. Paonessa’s wife and children, written more than two years after his death nonetheless resonates disbelief and shock at the position they find themselves in, a seeming nightmare that they must endure and must accept is tragically true. Their statement recounts their initial hope for Mr. Paonessa’s recovery, their vigil at the hospital, their elder daughter’s rush flight home from college to bid farewell to her father and the moment when Mr. Paonessa’s life-support was disconnected because the doctors said there was no hope. “We left the hospital that day completely broken”.
The loss of Mr. Paonessa has been, “absolutely devastating, in every way”, including emotional, personal and financial hardships that at times they feared would destroy them. His absence has been felt not only in the day to day, but on those special events, small and large, that are the milestones of a family’s shared life experience. That absence will continue to be felt for decades. It is their shared, deep and abiding faith that has sustained them.
Letters from Mr. Paonessa’s siblings confirmed the enormous impact of Mr. Paonessa’s life, societal engagement and death on the family and the community, including a reflection about his ninety-two year old father’s sense of loss and inability to comprehend his son’s death and the impact of the stress of his loss across the family. They speak of the roles Mr. Paonessa served as an elder and younger sibling in addition to his role for his wife and children. The enormous number of people who attended Mr. Paonessa’s visitation and funeral speaks resoundingly about who he was and the positive impact he had far beyond his immediate circle.

What This Decision Is Not About

Most sentencings cover a lot of territory, not simply what happened, but a lot of detail about the parties, their behaviours, their backgrounds and so on, because in such details might be found some insight about why things happened as they did and because such insight is important both to assess an offender’s level of moral blameworthiness and for avoiding recurrent behaviour by the offender. In few cases will the level of emotional engagement on both sides be as intense as it is in a murder case.
This is, at its heart, however, a criminal sentencing. It is not a royal commission into anything including the behaviour of the child protection authorities, although some issues relevant to that will arise. It is not a doctoral dissertation on the pernicious effects of racism in Canada, but it will touch on issues relevant thereto because failing to do so would be unrealistic on the facts of this case.

N.M.’s Background

N.M. is now twenty years old. Almost three years have passed since the murder and more than a year has passed since N.M. pleaded guilty. When he attacked and killed Mr. Paonessa, N.M. was just shy of seventeen years and seven months old.
As I mentioned above, N.M. has one previous conviction for assault causing bodily harm, on 25 November, 2016, about twenty-six months before he murdered Mr. Paonessa. (As Mr. Walker pointed out, it is important to note that this was a conviction for assault causing bodily harm, not for aggravated assault, which is often listed as the offence in the paperwork that has followed N.M. ever since. Shockingly, even the CPIC record, supposedly the gold-standard for criminal histories maintained by the RCMP shows a conviction for aggravated assault, which is untrue). He was placed on probation for one year. That case arose out of a consensual fight in which N.M. pre-emptively kicked his opponent in the face as his opponent was tying his shoe, causing him to go into a seizure. N.M. was fourteen years old at the time of that offence. He was already in foster care with the Paonessa family at the time of that offence. Mrs. Paonessa’s appraisal of N.M.’s progress since the offence, as communicated to the court through his lawyer, was very favourable.
Ironically, in my sentencing comments to N.M. for that assault causing bodily harm I spoke to him about the importance of thinking of the possible consequences of one’s actions being much more serious than what one had intended and I specifically raised the spectre of the one-punch homicide, a catch-phrase for a single blow delivered in anger and without homicidal intent, but that nonetheless causes death.
I have the benefit of three reports in relation to N.M., namely: a. A pre-sentence report prepared by the Ministry of the Solicitor General. b. A psychological assessment ordered under s. 34 of the Youth Criminal Justice Act. c. An enhanced pre-sentence report commissioned by N.M.’s lawyers.

I have contemplated how best to incorporate the observations set out in the three reports since they cover much of the same territory. Brevity would favour blending the reports entirely and avoiding any repetition, but brevity, while a generally desirable objective, sometimes comes at a cost. I have decided ultimately to set out the reports largely separately, albeit with a bit of blending, because they all approach their topic from a different perspective and with the benefit of different skillsets. Also, what one author perceives as relevant in their research may not align perfectly with what the other authors prioritized. In a case such as this I think it is important to appreciate the value of each perspective.
The pre-sentence report shows that N.M. was born in Hamilton, Ontario in 2001. His father, H.M., is a black Trinidadian, who originally came to Canada as a migrant worker, and his mother, Ms. B., is white and Canadian-born. ⁶ For the sake of clarity, I shall refer to N.M.’s father as H.M. throughout these reasons. The Children’s Aid Society has been involved with N.M.’s family since he was born, although not specifically in relation to him at that time, it appears. The CAS were involved with his mother’s previous two children even before N.M. was born. H.M. and Ms. B. were married in March, 2003 and separated a year later. The relationship was tumultuous, according to N.M.’s father, who said Ms. B. was bipolar and would not take her medications. He said that when N.M. was one or one-and-a-half years old he saw his mother assault his father. At one point, she tried to have H.M. deported. Money was tight.
H.M. said he became a single parent to N.M. and his two older half-brothers (who were Ms. B.’s children) and he tried to engage them in sports and counselling; he said the ongoing challenge was Ms. B.’s absence or inconsistent engagement and her poor influence on the boys. When the older boys were young teens, they left H.M.’s care, leaving him only with N.M. in his care.
H.M. is what one might call an “old-school” parent, a model that might be familiar to many. In his world view, the way things were in the time and place and family environment he was raised in, the parent’s role includes creating rules and expectations and those expectations include filial compliance and respect. H.M. had emigrated and worked hard to create a better life centred on work, home and activities. Although money was tight, he got his son involved in hockey and baseball, both of which he performed well at, although he lost interest over time.
According to H.M., there were no issues with his son’s behaviour until around grade nine, when the other two boys, Ms. B.’s sons by other fathers, started coming around again. N.M. asked to go live with his mother and half-brothers, but H.M. said that was not allowed under the custody order. H.M. reported that Ms. B. was “egging the boys on” to make his life difficult. N.M. started behaving rudely to his father over various issues and eventually said he wanted to live with his maternal grandfather and cut H.M. off. At the grandfather’s home, things did not go well as N.M. had to buy his own food and was often locked out. This prompted H.M. to contact the Children’s Aid Society for a temporary care arrangement. N.M. said that during his time with his grandfather he realized he was becoming a “very angry kid”. He was sent for counselling, but it was not very helpful because his father was not part of it.
Ms. S. is N.M.’s stepmother and has known him since he was about five. She spoke of him in positive terms and confirmed that the re-emergence of his half-brothers in his life was not a positive influence. She observed that perhaps N.M.’s greatest challenge has been his mother’s absence in his life, which was exacerbated because his half-brothers were able to live with her, but he could not. She said there were many conversations asking the Children’s Aid Society to arrange therapy, but nothing happened. ⁷ I note that the probation officer’s efforts to get input from N.M.’s mother were entirely unsuccessful.
Both H.M. and Ms. S. noted that N.M.’s complaints about his relationship with Mr. Paonessa became increasingly common in the year leading up to Mr. Paonessa’s death. This theme was also reflected in the s. 34 report.
Both H.M. and Ms. S. commented on the increased and significant amount of contact that N.M. has had with his father since his arrest. He now perceives his father as a supportive force in his life, as well as a friend of his in Welland.
N.M. described his father as very strict and said that he was never allowed to do the things that other children were doing, including engaging in social media or owning a mobile phone. His father punished through spanking or verbal aggression and hugs or affirmations that he was loved were not part of his reality. He lamented the amount of family conflict and his mother’s absence from his life. He longed desperately to do the sorts of things other families did. He and his half-brothers fought a lot.
N.M.’s high school principal spoke favourably of him. N.M. has completed secondary school including more than his required number of community service hours. Reports of his performance while on probation were also favourable and he appeared to be doing very well, including starting a Bible group at his high school and starting a weekly Christian movie night involving dinner, a movie and then discussion about the film.
I shall not go into the reports of N.M.’s time in custody in great detail, but would characterize them as overall very positive. At times his motivation waned, at times he was picked on by other youth in the facility and defended himself; very occasionally he acted out physically. Overall, his rankings have been high and at Ray of Hope Secure Custody he is seen as a leader. He has shown an interest in counselling throughout. He finished secondary school in custody and is pursuing a post-secondary education in Criminal Psychology and Behaviour and has completed numerous programmes while in custody. That being said, he has not been without missteps, albeit rarely so. For example, during the sentencing hearing I was presented with recent video footage in which N.M. was engaged in ganging up on another detainee. This did not reflect well on him, but I would say that given that he has been in custody for almost three years and given the reality of custodial institutions, the rarity of misconduct on his part strikes me as a favourable reflection on him overall.
Dr. Wong, the author of the s. 34 psychological assessment, made the following observations (I have left out much of the history recited in Dr. Wong’s report as it largely duplicates the pre-sentence report): a. N.M.’s cognitive abilities fall within the average range, at the 32^nd percentile. His language skills are in that general range, but his mathematics skills are substantially lower, something N.M. himself described as a weakness. b. N.M. seeks social approval and praise and may lack insight and psychological sophistication. c. Measurements of anxiety and depressed affect showed significant concern; these measures among youth can be, “very apprehensive and edgy about all sorts of things”, suffering from internal turmoil and using social conformity to control their negative feelings, which are, however, at risk of boiling over. Depression, sadness and feelings of guilt and worthlessness are typical. d. N.M. in particular showed, “an anxious conformity to the expectations of others, particularly those in authority.” He anticipates criticism and being put down and blames himself for faults or shortcomings. e. There were no significant concerns from the tests for substance abuse, impulsivity or inclination to delinquency. f. He may self limit his activities to things he is comfortable with and may depend on supportive institutions such as the church as a source of protection from people in authority. g. Repressed feelings about people who have insulted him, “may occasionally break through his façade of restraint.” h. N.M. had deep concerns about family discord and saw his own family as full of tension and conflict. He feels estrangement and rejection from his parents. i. In terms of anger expression, N.M. is not experiencing intense feelings of anger but does feel some anger or hostility. For example, he may feel angry if other people’s mistakes slow him down and he may speak out as a result. Generally, however, he consciously holds anger inside such that his outward manifestation is of much less irritation than he may actually be feeling. j. In terms of N.M.’s risk assessment, Dr. Wong found him to be at high risk of aggression in future based on early caregiver disruption, a history of violence, stress, poor coping, extremely inconsistent or overly strict parental management, negative attitudes, impulsivity and anger management concerns. Moderate risk was assessed in relation to, “inconsistent or unreliable emotional support and guidance”, and occasional negative attitude towards treatment. k. Protective factors that were noted at the present time and that could mitigate risk included, “prosocial involvement, strong social support, strong attachment and bonds, positive attitude towards intervention and authority, strong commitment to school, and resilient personality traits.” l. N.M. meets the criteria in DSM-5 for, “Adjustment Disorder—mixed disturbance of emotion and conduct”, based on psychosocial stressors leading up to the offence, rooted in foster-family stress, conflict and a breakdown of coping abilities. m. While a determination of the proper form of sentence is obviously one for the court to make based on the legal test in the Youth Criminal Justice Act, Dr. Wong’s view was clearly that a youth sentence would best serve the interests of, “rehabilitation, mental health concerns, and recidivism.” These, of course, are not the sole determinants of sentence. n. N.M. would be an ideal candidate for an Intensive Rehabilitative Custody and Supervision order, including psychiatric care and treatment in a secure environment followed by conditional supervision and rehabilitative support in the community. His needs include a clear understanding of his risk factors for violent offending and appropriate coping strategies to mitigate those risks.
N.M. spoke to Dr. Wong of how long he had been in the placement, which included times when he connected really well with the Paonessas. He had invested time in the placement and wanted to stay and tried hard to do well. There was talk of divorce between the Paonessas and N.M. feared the trauma of separation. He and Mr. Paonessa butted heads and there was talk of him being removed. Mr. Paonessa, he said, had told him over time that he was not part of the family and that nobody loved him. He tried to spend time away from the house and tried to spend his time at home in his room as much as possible. He tried to reach out to social workers but felt he did not get the support he required. He felt that he personally bore ninety to ninety-five percent of the responsibility for what happened, but felt that the foster care and Children’s Aid systems also deserved some of the blame for not taking his concerns seriously or acting on them. He had been sufficiently desperate on one occasion, discussed earlier, that he called the police.
N.M. said he had learned to control his emotions and had proved that in custody, an environment where he said somebody wants to get in a fight with you every day.
N.M. has a variety of interests including carpentry, fishing and exercise. His faith has come to mean a lot to him. Upon his release he hopes to live with his father and perhaps work as a youth worker up north.
I also had the benefit of an enhanced pre-sentence report completed by Jacquie Pemberton, M.S.W., R.S.W., of the Sentencing and Parole Project, a non-profit organization that specializes in such work. That report delved somewhat more deeply into N.M.’s family history and background. Among its observations were the following: a. H.M., N.M.’s Trinidadian-born father, was one of twenty-five children of his father and one of seven children of his mother. While his mother, N.M.’s grandmother, was “the sweetest woman”, H.M. did not even meet his own father until he was eighteen years old; H.M.’s father’s absence affected H.M. emotionally and he hoped for, but never received, an apology for it. b. H.M. looked to Canada’s migrant farmworker programme as a way of bettering himself. He succeeded on his fourth attempt and came to Canada in the spring of 1998, just shy of his twenty-fifth birthday. He found the cold hard to bear and was homesick for his first three seasons, which ran to about nine months per year and involved long hours for modest wages, sometimes extremely long hours and sometimes in poor weather. c. H.M. worked on farms in Niagara and in the Simcoe area. He was the object of racism in various farms around Simcoe where he was treated rudely and often called a “nigger.” He had negative experiences with the police and was, “routinely stopped and searched, followed in department stores and accused of shoplifting.” He was afraid of the police. d. H.M. met N.M.’s mother, Ms. B., at a social gathering near Simcoe; she was living in an abused women’s shelter. She herself had been placed in foster care at the age of fifteen as a result of a difficult upbringing. N.M. said she suffered from bipolar disorder but did not take her medications. Soon after they met, Ms. B. received a three-month jail sentence for assault and she told him on her release that she was pregnant with N.M. He was born in July, 2001. H.M. was in Trinidad at the time. He and Ms. B. got married in March, 2003 and separated a year later. H.M. said the, “relationship was unstable due to Ms. B.’s transience in and out of custody.” H.M. said Ms. B. assaulted him, but he never retaliated. One such fight occurred when N.M. was one and a half years old, in his presence. e. Ms. S. became H.M.’s common-law partner when N.M. was four years old and has remained in his life since then. f. Both N.M.’s mother and father spoke ill of each other and there was obvious tension in their relationship. His father and stepmother said his mother was a crackhead and prostitute who often spent time in jail. When he was able to have infrequent access to her around age seven, however, N.M. found her to be kind and loving, but he did not interact with her as much as she wanted during those visits. He came to dislike his father as a result of his negative comments about his mother and felt that those comments undermined his ability to develop a relationship with her. g. N.M. also felt that he was treated differently than his two half-brothers, who were Ms. B.’s children but who lived under H.M.’s care for some time. Ms. B. bought them mobile phones, but not for him. Later, they were allowed to live with her, but he was not. h. N.M. said that his father and Ms. S. tried to mitigate his sense of exclusion by buying him material things. He said that Ms. S. recognized the impact of his mother’s absence and, “she tried to do what she could for him”. i. N.M. said that his mother visited him in custody after his arrest and apologized for choosing his brothers over him, which he took as a genuine apology and which he appreciated. They have not met in person since then, but have talked on the phone. She has stage 4 ovarian cancer and N.M. worries about her treatment and if she will still be alive when he is released from custody. j. N.M. felt that his father, as primary caregiver, did his best to raise him and his half-brothers. That being said, his relationship with his father was difficult as it was based on a “tough love” parenting style that included daily physical discipline, which N.M. took to be normal and for which no explanation was given. Yelling and degradation by his father, said N.M., were a routine part of his upbringing. N.M. felt that his father’s expectations were unreasonable and compared unfavourably with the lives his friends lived. He only felt free when out of the house. He did not experience typical family dynamics such as shared meals or parental praise. k. In language that is trenchantly ironic, because it matches a comment made by Mr. Paonessa to the police in 2018 about how he would treat N.M. from then on, N.M. said his relationship with H.M. was, “like two passing ships”, where he felt that he was not loved and felt no desire to give love. His father described himself as non-affectionate by nature and did not feel that his son needed love, other than as expressed through the provision of material support. H.M. said that he was routinely physically disciplined by his mother and step-father in Trinidad, but he, “would take my licks like a champ”. He felt that his subjection to physical discipline kept him on the straight and narrow and built character. He did not consider his use of physical discipline on N.M. as abusive; neither did Ms. S. l. When N.M. approached his teens, he started to speak back, expressing what he was too afraid to say when he was younger. His father stopped physically abusing him, he said, and instead called the police when there was conflict and he felt he was losing control over N.M. N.M. would run away to his mother’s home but would be brought back by the police, but they would keep him in custody overnight at his father’s request. m. N.M. said that his anger and sadness led him to see his father as a poor role model and that leached into interactions with other male authority figures. n. N.M. felt the sting of racism growing up, as his father had after his arrival in Canada. In Hagersville, his family was one of only two black families in town; everyone else was white. His neighbours’ trucks were adorned with Confederate flags, he was stared at when he and his father went to the grocery store, he had bananas thrown at him while walking home from school. He knew it was wrong, but his father did not explain it to him. His father said that life in Hagersville was hard because his children could not play outside without being subjected to racist taunts and lacked the opportunity to socialize with other kids. The two older boys got in fights because they were, “called ‘chocolate milk’, ‘cocoa butter’, and ‘monkeys’” and, “had pictures drawn of them climbing trees.” Ms. S. noted that his status as a biracial child in a white town was exacerbated with bullying because he also had an Individual Education Plan, learning accommodations and an educational assistant, which further set him apart from his peers. o. N.M. has never had a black teacher. A grade eight teacher, “told him that he had potential but could also see him dying or ending up in jail,” words that he has never forgotten. In grade nine in Niagara Falls he was subjected to cyber-bullying over how he wore his hair and was called “Black Caillou” by white students. N.M. responded to the bullying by deciding he would no longer be a victim and got into many fights as a result, for which he was twice suspended for thirty days. His care worker intervened with the high school principal, who she found to be unhelpful, as a result of which she arranged for N.M. to change schools. He had no issues at the new secondary school for the balance of grade nine and grades ten and eleven. For grade twelve he moved to the same school as his foster siblings where he took his education seriously in the period leading up to Mr. Paonessa’s death. p. By contrast, N.M. identified one of the strengths of the Ray of Hope Secure Custody as the presence of black and biracial staff. In one of the more cruel and ironic twists in his history, however, because of his relatively light complexion he has been denigrated as “white boy” while in various detention centres, which he feels denies his blackness and has led to him being excluded by black peers, a reality he struggles to cope with. q. N.M. was raised in an economically deprived environment. H.M.’s work history, reflects consistency and industriousness in his character. Like many people, however, it is a list of low-paying jobs, although H.M. tried nonetheless to keep his kids in sports in addition to ensuring the rent was paid and groceries were provided. H.M.’s financial reality included accessing food banks and accepting donations of clothing, which he knew affected his children’s emotional state. As an immigrant, H.M. had no family support system in Canada so he had to rely on Ms. S. N.M. noticed the discrepancy between his life and his friends’ lives, but did not realize that his father was struggling to make things work as well as they did on limited income. r. The involvement of child protection authorities has been an almost constant in the lives of Ms. B. and H.M., starting even before H.M. and Ms. B. met, around the time her first two boys were born. The Hamilton Children’s Aid Society was involved from 1996 to 2001 for issues such as, “caregiving skills, neglect, lack of supervision and allegations of substance abuse.” Since then, the Children’s Aid Society of Haldimand-Norfolk has had carriage of the files. Between 2000 and 2006 there were four investigations for child exposure to domestic conflict, poor school attendance and poor living conditions. ⁸ There was a gap for about two years after H.M. took custody of the children, after which time the file remained open from 2008 to 2015 when N.M. was moved into the foster care system. The issues for CAS involvement in that seven-year period related to emotional harm arising from custody and access issues, risk of physical harm from discipline and parent-child conflict. s. In 2015, N.M. went to live with his maternal grandfather in Caledonia, a smaller town. In part this was positive because N.M. loved the outdoors and was able to go up north to canoe and fish with his grandfather. In part it was negative because his grandfather’s work schedule made supervision limited and N.M. descended into a “party lifestyle”. When his grandfather started to put his foot down, that was reminiscent to N.M. of his clashes with his father and the placement fell apart. N.M., given the option of returning to live with his father or going into foster-care on a Temporary Care Arrangement, chose the latter. At this point, N.M. had just turned fifteen. His father thought it was just a six-month placement, but N.M. said he did not believe he would be able to return to his father after six months. t. H.M. asked for a placement outside Hagersville with a family that had “church values”. When N.M. was told he would be placed in Niagara Falls, he felt mixed emotions: liberation and a new start on the one hand, juxtaposed with a sense that he had been “screwed over” by his family. In October, 2016 N.M. became a Society Ward when both his parents declined to have him return to them. u. As has been noted earlier, N.M. was not placed in a culturally matched environment. He was biracial, the Paonessas white. His culture and reality appear to have hewed towards a black Caribbean experience and he missed familiar foods while his foster family disliked the smells associated with his familiar foods, although his worker said the family tried to cook some of his foods. His music was not appropriate to their tastes, although headphones could mitigate any conflict arising from that issue. At the end of the day, however, “In hindsight [N.M.] reflected that the subtle references about his food and the lack of understanding about important aspects of his culture made him feel uncomfortable in the foster home.” v. The Children’s Aid Society left N.M. in the Paonessa home despite it not being culturally matched because they felt the Paonessas were supportive of N.M. even when he made bad choices and stood by him and also because N.M. expressed desire to stay in that placement. The record does seem to suggest that N.M.’s expression of his views about whether to stay or go elsewhere fluctuated, ⁹ although that indecision would not be surprising for a teenager from a fractured family background placed in a somewhat alien environment. w. During his time as a ward, N.M. had monthly visits with his father and Ms. S., but there was tension with his father and Ms. S. had to act as mediator. His mother also had the option of supervised access but, having been a ward herself, distrusted the CAS system. x. N.M.’s relationship with religion has fluctuated over time. He originally felt his father’s focus on the church was imposed on him as a child and the same was true with the Paonessas in the early period, albeit with a different branch of Christianity. He was expected to attend church events with them several times a week because he could not be left alone, but over time he got involved, made friends and told his worker that he had found God. His connection with faith more recently is of a different nature because it is self-driven rather than externally imposed and he credits his faith with a better attitude and ability for self-regulation. y. N.M. felt that Mrs. Paonessa was, “kind, caring, loving and felt like she treated him as her son.” His interaction with Mr. Paonessa, by contrast, was a relationship of tension and rejection, with Mr. Paonessa, “constantly mentioning that he would be leaving soon.” ¹⁰ N.M.’s unwilling entanglement in the Paonessas’ domestic conflict, “resulted in [N.M.] receiving backlash from Mr. Paonessa.” It was also reminiscent to N.M. of the conflict between his parents and he saw Mr. Paonessa as a, “mirror image of his father,” who reminded him of, “everything he already went through as a child.” As has been noted above, N.M. would cope by spending time out of the home and he would run away to his mother in Hamilton. He said the stress in his placement, “was too much for my young mind to handle.” z. Niagara Family and Children’s Services conducted an investigation in December, 2018, a couple of months before Mr. Paonessa’s murder. N.M. told the worker he was worried about how angry Mr. Paonessa got especially since, “he came from a home where violence occurred often, he knows it’s not healthy, and did not want that for himself.” N.M. said that he was avoiding Mr. Paonessa “at all costs” in order to avoid conflict. The worker also noted issues between N.M. and male authority figures and opined that N.M. and Mr. Paonessa were, “fighting for the ‘Alpha Male’ position in the family”. aa. In addition to completing secondary school while in custody, N.M. has enrolled at a community college for criminal psychology and behaviour studies. He has shown commitment while struggling with focus and distraction. He hopes to work in youth justice and said that, “there will always be someone in your life that you will never forget, and I want to be that legacy.” bb. N.M. says that he feels he has been unloved by his parents and that affects his ability to connect with others, including worrying about people’s motives in engaging with him. He has a friend whose family have welcomed him and cared for him and he wants to keep them in his life but has trouble accepting love, both generally and in light of his crime. He knows he must work on trusting other people. He also knows that he must learn to cope with anger and frustration; his social worker at Ray of Hope sees him as having a lot of potential and as doing his best to improve. cc. N.M. feels intimidated in the court system, particularly with him and his father being the only black people in the courtroom. He fears that he is seen as intimidating because he is not white and worries that, “the judge is thinking that he is, “an angry Black kid that attacked his foster father” and has never heard his side of the story”. dd. N.M. suffers from anxiety, depression and panic attacks, but not from suicidal ideation, which he considers a sin. His anxiety mostly stems from his schoolwork and the decision I have to deliver today.

N.M.’s Comments About Mr. Paonessa’s Death

N.M. spoke about the murder of Mr. Paonessa in various settings. One was for the pre-sentence report. While he was loth to discuss the offence in detail, N.M. told the author of the pre-sentence report that it was not his intention to kill Mr. Paonessa, but he takes responsibility for what he did. He said that he acted out of upset at feeling rejected and hurt by Mr. Paonessa’s rejection of him and without thinking clearly or thinking about possible consequences. He thinks about what happened every day and feels awful that J.P. was present when he struck her father and about how he had denied the family of a future with Mr. Paonessa in it, a consequence that will resonate throughout the years.
The psychological assessment goes into somewhat greater depth, although the themes are generally similar and consistent. N.M. said that he had acted out in the spur of the moment and it had been his intention only to knock Mr. Paonessa out, but he accepted he was responsible for Mr. Paonessa’s death. He regretted what he had done every day and appears to have thought long and hard about the impact of Mr. Paonessa’s death on his family. He knows that he can never make up for what he has done.
N.M. also addressed the court and the Paonessa family after the lawyers’ submissions were completed. He spoke at some length and had consciously chosen to speak without notes. Everyone is entitled to hear in N.M.’s words what they choose to hear. What I heard was a genuine expression of remorse. N.M. spoke of his shame at what he had done, of his inability to undo the harm and pain he had inflicted, a type of pain he recognized he could only imagine, unlike the Paonessa family who lived that pain daily. He said that nothing in his turbulent relationship with Mr. Paonessa could justify what he had done, but sought understanding that he was not cold-hearted and was not a monster. He hoped that the family could look beyond what he had done and see also who he was as a person from his four years among them. At the same time, he said, “I understand if you hate me and want me to rot in prison the rest of my life. I one hundred percent do.” He was not looking for people to feel bad for him. He said that his time in custody had affected how he looked at the future, but that he wanted to improve, not just to be a statistic, to make a difference. ¹¹

The Issue of Sentencing in Relation to Black Offenders and the Relevance of Family Dysfunction in Sentencing N.M.

To some extent, the sentencing submissions addressed the issue of how N.M.’s race is relevant to sentencing. That discussion arose in the context of two decisions by Justice Nakatsuru of the Ontario Superior Court of Justice in R. v. Jackson ¹² and R. v. Morris, ¹³ both of which dealt with how properly to take into account the prevalence of anti-black racism when sentencing black defendants. While N.M.’s case was being argued before me, the Nova Scotia Court of Appeal addressed the same issue in R. v. Anderson. ¹⁴ After submissions were made in this case, the Court of Appeal for Ontario released its judgment on a Crown sentence appeal of Justice Nakatsuru’s decision in Morris, namely R. v. Morris. ¹⁵
I do not propose to deal with any of these decisions in particular detail, by which I intend no disrespect for their authority, scholarship or thoroughness. In general, the issues raised in such cases involve the question of how courts should consider anti-black racism in sentencing, whether or not the courts should apply the same lens and approach as we do in relation to indigenous offenders as set out in cases such as R. v. Gladue ¹⁶ and what to do with documents such as an Impact of Race and Culture Assessment (IRCA) or similar document tendered in support of a defendant’s argument that the effects of racism should be factored into the sentence imposed. In the present case the defence have filed an Extended Pre-Sentence Report that covers much of the same ground as an IRCA.
The reason I do not intend to dwell on the Court of Appeal decision in Morris, which binds me by its authority never mind its logic, is that the decision really says nothing particularly new or surprising. Again, I say that with no disrespect whatsoever. The value in the Court of Appeal decision in Morris, in my view, lies in the fact that it resolves in a binding way, in this province at least, any doubt that might have lingered on the three questions I have set out in the preceding paragraph. The Court of Appeal’s actual conclusions, however, do not seem particularly newsworthy for the very reason that they are so seemingly obvious against the backdrop of previous decisions. I even presume to say that the Court of Appeal was of the same view in its own analysis and conclusions. This is plain when one reads the Court of Appeal in Morris and observes how deeply, forcefully and repeatedly its conclusions are rooted in decisions from the past.
I take the following as givens: a. The precise sentencing approach for indigenous offenders cannot be applied wholesale to “racialized” offenders for the simple reason that, whatever other societal ills may blight this country (including anti-black racism, which ranks high among the stains on our escutcheon), the indigenous relationship with the state and the history of state treatment of indigenous peoples in Canada (which at times in our history has fallen in line with the current United Nations definition of genocide), is unique. I use the word “unique” in its pure meaning, i.e. it is a relationship unlike absolutely any other. That relationship stands in a category of its own. b. That being said, the indigenous peoples of Canada do not have a monopoly on social disadvantage. Since proportionality is the cardinal principle of sentencing and since one of the two branches of proportionality involves measuring the moral responsibility of the individual offender, the extent to which racism may have had a negative impact on an offender and may put his or her conduct in a different light than would otherwise be the case is a relevant line of inquiry for the sentencing hearing, just as much as individual family dysfunction, childhood trauma, addiction and countless other factors help answer the question: “who is the person who committed this offence?” It would be disingenuous and invidious to suggest that subjugation to patterns of racist disadvantage could not be a relevant factor on sentencing. c. The mere existence of discrimination in society does not suffice. There must be some connection between the disadvantage and the offence or the offender’s background and choices for the racial discrimination to be relevant to the sentence. A simple discount on sentence for having committed an offence as a member of a particular colour, race or ethnicity would be impermissible. d. The potential relevance of racial discrimination in an offender’s background as set out in the background materials filed in Morris applies only to the assessment of the offender’s moral responsibility, one of the two branches of the proportionality principle in sentencing, the other being the seriousness of the offence. e. As for the evidentiary issues, the Court of Appeal’s conclusion that racism is real is not revolutionary; that recognition has a solid foundation in its own previous cases as set out by the panel in Morris itself. It is the stuff of which judicial notice can be taken. When it comes to the issue of using IRCAs or similar reports, there is again no novel issue. The only real issues about such reports are some of the most basic principles that apply in legal proceedings, such as: i. Is the material relevant to an issue before the court? ii. Is the material reliable (e.g. is the report writer’s work product thorough and are her facts reasonably sourced, keeping in mind the broader standards for admissibility in a sentencing proceeding rather than a trial)? iii. Where the report writer strays into opinion rather than fact-gathering, is she appropriately qualified to express that opinion?
Racism exists. That proposition bears no gainsaying. It exists in different places and manners and manifestations. It exists in some individuals, openly or covertly, and in some systems, corporate or governmental. It is not always intentional, but intentional or not it is pernicious. Racism is more prominent in some places than in others, but if the best a country like Canada can say is that we are not as bad as some other places, it would be better that we remain silent on our supposed virtue and set about improving things. It bears noting that the comments and treatment and Confederate flags to which N.M. and his father were subjected did not take place many generations ago in some distant place. Those things happened within this generation and all within about eighty kilometres or less of the room we are in right now. In one sense, racism in the form of this country’s treatment of its indigenous peoples is Canada’s original sin.
Racism is rooted in fear, ignorance, power and oppression. Humans have a nasty tendency to fear the unfamiliar and the different, to want to protect what is “ours” and to ward off perceived agents of change. We have a history of focusing on the superficial differences and failing to see the common humanity and universal potential under the surface of the “other”. We have done that for a very long time, not universally in time and place, but for a very long time in very many places. Racism often follows immigration patterns: a century-and-a-half or so ago it was the Irish, a century after that the immigrants from some of the Mediterranean countries. Indigenous people, black people and other people of colour have suffered longer and more deeply. As I have said, sometimes racism is rooted in ignorance or resistance to change, but sometimes it is rooted in maintaining economic or political power. Sometimes it is rooted in pure evil, where political actors recognize the value to their ambition of mobilizing people against a manufactured threat. Although racism is rooted in power, sometimes power is relative and situational; N.M. is part white and part black but has been the victim of racism because to some people in some situations he is not black enough.
Racism can be subtle or blunt; where it exists, it may not be provable, and it may not exist everywhere that it is suspected. For those cruising through life in the mainstream it may not be evident, although one would hope that by now even the most oblivious eyes would be open. The daily grind of individual and systemic racism for those on the receiving end of it, however, can be oppressive.
I accept as true every example of racist intolerance recounted for these proceedings by N.M. and his father. Each instance is entirely plausible, the indifference or non-responsiveness of some persons in authority, equally so. I accept that it is one factor in the destabilization of N.M. and that it is one relevant consideration in determining the appropriate sentence for him.
Racism, however, is not the only malignant influence limiting human potential. Frederick Douglass’s comment that it is, “easier to build strong children than to repair broken men,” expertly encompasses both the odious impacts of racism and of societal inattention to children’s needs. A more blunt, but unquestionably apt, distillation comes from the poet Philip Larkin:

They fuck you up, your mum and dad. They may not mean to, but they do. They fill you with the faults they had And add some extra, just for you. But they were fucked up in their turn By fools in old-style hats and coats, Who half the time were soppy-stern And half at one another’s throats.
The cardinal principle of sentencing in Canadian criminal law is the principle of proportionality. Proportionality requires that a sentence reflect the seriousness of the offender’s crime and the offender’s degree of moral culpability. Without diminishing the role of personal choice, the criminal justice system serves as a catch-basin for very, very many people whose needs were not met by the social welfare system, a huge percentage of offenders whose offending is rooted in trauma and/or addiction and/or mental illness. The effect to which these offenders’ personal circumstances may mitigate their moral culpability ranges from nil to enormous, but experience suggests that “nil” will be rare.
N.M. is a case in point. His mother was a product of the foster-care system and suffered from mental health issues and engagement with the criminal justice system, including assaulting his father. His father was the product of an absentee father and adopted his own mother’s and step-father’s view of the appropriateness of corporal punishment and disavowed the value of nurturing as a parental attribute. N.M. was witness to parental turmoil, racism, educational challenges and the loss of a mother figure. His father’s behaviour compared to other family models he saw among his friends caused him to reject him as a role model, leading him to spend time briefly with his grandfather and then years as a ward of the Children’s Aid Society. His sense of identity as a minority, biracial person was already fragile, but he was put in a placement that was not particularly culturally aligned with him; there may not have been other options and I do not know the level of engagement of black or biracial families in the foster care system, but I am speaking here to identify causes, not to ascribe blame. Likewise, I do not doubt the motivation of the Paonessas, but at some point, Mr. and Mrs. Paonessa’s views of their foster role in general or their foster role in relation to N.M. specifically diverged, creating tension. There were financial difficulties and marital discord and Mr. and Mrs. Paonessa’s philosophies of how to deal with N.M. differed, creating more tension. He was placed, as a teenager in someone else’s family and over time ended up in the middle of their marital difficulties. Mr. Paonessa behaved at times in a manner not befitting his role as the adult. The turbulent relationship with Mr. Paonessa was reminiscent of N.M.’s dysfunctional relationship with his own father and Mr. Paonessa’s sometime insulting treatment of Mrs. Paonessa was reminiscent to N.M. of how his father spoke of his mother, in a setting where Mrs. Paonessa was his predominant source of kindness. I note the objective external insight into N.M.’s relationship with the Paonessas that comes out in the reference letter from Carla Hamlyn, whose family embraced N.M. in 2017-2018. It is telling that in his substantial time at the Hamlyn home N.M. spoke very favourably of Mrs. Paonessa and simply called her mom, but did not speak about Mr. Paonessa at all. I stress that this is not to blame Mr. Paonessa, but simply as a demonstration of the untenable situation N.M. was in during the period leading up to the killing.
Any one of these issues, by itself, or even a combination of a few of them would be sad and regrettable but not tremendously determinative. The combination of so many factors over such a long time, however, is necessarily relevant to N.M.’s moral blameworthiness for his awful attack on Mr. Paonessa. It is an essential component of the second branch of the proportionality analysis. Too many pressures over too long a time were an inescapable part of what happened here. That is not to say that N.M. is not responsible for what he did. It would be absurd to say otherwise. He himself accepts that he is ninety to ninety-five percent responsible. However, it would be absurd and unfair to ignore the cumulative pressures on him that contributed to what he did that day, pressures that were no fault of his.
As I have said, this sentencing is not a royal commission into society’s shortcomings, nor is it an attribution of blame to specific individuals. I have neither the remit nor the complete insight for either of those functions other than the measurement of N.M.’s specific responsibility. It is, however, one snapshot among thousands of how things could be done better and of how money spent elsewhere might result in better outcomes relying less on the criminal law to sort things out and, much more importantly, leaving fewer victims and their families to grieve.

An Adult Sentence or a Youth Sentence?

To restate the dispute that I must resolve between the Crown and the defence, it is whether or not N.M. should be sentenced as a youth or an adult. That is a legal determination, guided by a two-part standard set out in s. 72 of the Youth Criminal Justice Act. For me to impose an adult sentence on N.M., the Crown must prove two things: a. First, the Crown must rebut, “the presumption of diminished moral blameworthiness or culpability of the young person,” that presumption being one of the fundamental underpinnings of the Youth Criminal Justice Act (“YCJA”) treating young people differently than adult offenders; and b. Second, the Crown must show that a youth sentence would be, “of insufficient length to hold the young person accountable for his”, offence. (see YCJA, s. 72)

If the Crown cannot demonstrate both of those preconditions are met, then I must impose a youth sentence on N.M.
The Crown and defence have filed voluminous material before me including many cases dealing with facts that are similar or dissimilar, but none of which is on all fours. In considering their arguments, I have taken these cases into account, but I do not propose to refer to the vast majority of them individually. The vast majority of the cases presented are individual and fact-specific examples of how the adult vs. youth sentence argument has played out in the past. As such, they provide me with a valuable backdrop within which to position N.M.’s case. In most cases, however, there is no value, on a micro level for setting out each example for the reader. Ultimately, the decision on each branch of the test in s. 72 of the Youth Criminal Justice Act must be determined on broader principles.

The Burden

Section 72 of the Youth Criminal Justice Act makes it clear that the burden to obtain an adult sentence is on the Crown and that the burden is not met for an adult sentence unless the Crown makes out both arguments in s. 72. The section, however, does not specify how high the burden is, e.g. whether it is on the criminal standard of proof beyond a reasonable doubt, the civil standard of proof on a balance of probabilities (i.e. more likely than not likely) or some other standard.
In light of the authorities, such as R. v. O.(A). ¹⁷ in the Ontario Court of Appeal, it is clear that the Crown does not have to prove those two preconditions beyond a reasonable doubt. That court talks of the Crown, “satisfying the court, nothing more.” However, the court also says that I must keep in mind, “the very serious consequences for the young person” when deciding whether or not to impose an adult sentence.

Has The Crown Rebutted The Presumption of Reduced Moral Blameworthiness/ Culpability?

The Court of Appeal has recently held that on the first branch of the test for an adult sentence, the evidence must support:

[98] …a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to him. ¹⁸
It must be kept in mind that this test applies to N.M. at the time of the killing. Events before and after may inferentially assist in the determination of his maturity at the time of his crime, but I must avoid slipping into error by measuring his maturity at any other time for the purpose of applying the test.
It seemed to me that the Crown and defence did not disagree on the governing legal principles, but rather on the application of those principles to the facts. Accordingly, I propose to address the issue of diminished moral culpability by following the analysis of the British Columbia Court of Appeal in R. v. Chol, ¹⁹ as follows, starting with characteristics of the offender, N.M. I have clustered some issues together as they overlap. I have also added to the Chol inventory some specific submissions of the Crown in the present case.

Age Background and antecedents Emotional and mental health issues

N.M. was 17 ½ years old, i.e. very close to legal adulthood. In general, the closer a young offender is to eighteen, the more likely an adult sentence will be imposed, but the presumption applies even to 17 ½ year olds. Eighteen is the age chosen by Parliament for automatic adult accountability. I address the Crown’s reliance on the comments on age in R. v. Simpson-Rowe elsewhere in these reasons, but also stress that calendar age and developmental age are not the same thing. N.M.’s background before the placement with the Paonessas was deeply disadvantaged. This is evident in the CAS involvement, his mother’s absence, the family conflict, his father’s harsh parenting style, the lack of emotional guidance and development, the absence of a fully suitable role model, differential treatment compared to his half-brothers and differential treatment based on race, among other things. The Crown’s assertion that N.M.’s cognitive abilities were in the average range is not incorrect, but in my view the Crown fails to give adequate (or any) weight to N.M.’s emotional and developmental realities. I do not read pages 8-10 of the s. 34 report as reflecting maturity on N.M.’s part around this time, but to the contrary they reflect low-average cognition and much more importantly emotionally compromised development, development being synonymous with maturation. It was suggested by the Crown that N.M.’s maturity was demonstrated by the fact that he had smartened up after the fight in which he kicked his opponent when he was fourteen and had shown leadership skills within the church. I am not convinced that those facts support that conclusion. Maturation is not necessarily a linear process. I agree that there are sparks of maturity reflected in N.M.’s behaviour at times, but, “a single swallow does not a summer make”. Also, in light of Dr. Wong’s report, N.M.’s engagement with church activities may reflect a search for haven rather than full-blown maturation. Reference was also made by the Children’s Aid Society and by the Crown to conflict between N.M. and Mr. Paonessa consisting of two Alpha males fighting for position. What seems to me to have been overlooked in those utterances, however, is that one of the participants was an adult father figure and the other was a teenage boy with significant emotional development issues who was one-third of his age. I agree entirely with Mr. Walker on this point.

Was N.M. living like an adult? Was he dependent on others or subject to the influence of others?

He was living as a child under the care of the Paonessa family. He was dependent on them for care and was subject to their rules. He was attending secondary school like a typical seventeen-year-old. I agree with Mr. Walker that he was particularly dependent on Mrs. Paonessa, who filled the maternal role that had been largely vacant in his life and the absence of which had wounded him. This is of particular significance as his sense of vulnerability would be exacerbated if he perceived that his “mom” was being treated unfairly by her husband. The Crown says that his church involvement and part-time job showed he was living as an adult. I think this stretches those activities out of shape. If society has devolved to the point where the fact of a teenager having a part-time job is a marker of adulthood or even a partial marker, it is a sad day indeed. In light of Dr. Wong’s report, I think that the church involvement, which was originally involuntary on his part, served more as a crutch, a safe haven from people in authority. I do not agree with the Crown that N.M. calling the police in April, 2018 was a sign of maturity or independence; it was an attempt at self-preservation. In terms of the influence of others, N.M. acted alone. There can be no doubt, however, that his behaviour was influenced by a pattern of dysfunctional engagement with male authority figures, starting with his father, continuing to his grandfather and ending with Mr. Paonessa, each of which contributed cumulatively to overwhelming his ability to cope. The domestic discord between Mr. and Mrs. Paonessa was also reminiscent of his own parents’ dysfunctional relationship. All of this, even if unintentional as much of it may have been, involves the creation of an environment by other major influencers in N.M.’s life (effectively almost every adult presence in his home environments since he was born). Mr. Paonessa’s previous treatment of his wife was reminiscent of the conflict between H.M. and Ms. B. and N.M. perceived Mrs. Paonessa as a supportive, motherly figure being treated badly by Mr. Paonessa. Mr. Paonessa’s threats to remove N.M. were likewise negative influences on him.

Has N.M. committed any previous offences?

N.M. has the one conviction for assault causing bodily harm as a young person, as set out above. It is not entirely clear and it is not specifically adverted to in the facts on the plea, but the chronology in the materials before me suggest that that assault may have been around the time that he was responding to cyber bullying based on his race. Whether that is correct or not, the previous offence was serious.

Risk assessment

The Crown refers to N.M.’s and Dr. Wong’s assessments of future risk. I do not perceive risk assessment as relevant to the maturity calculation under s. 72
I note that the Crown in its materials places some substantial reliance on the judgment of Nordheimer J. (as he then was) in R. v. Simpson-Rowe. ²⁰ While I appreciate that Justice Nordheimer’s language is capable of interpretation as being of general application (and some of it certainly is), context matters. Context sometimes matters enormously. Simpson-Rowe was a sentencing after trial of a young person on three release orders engaged in gang activity who proceeded into a gun-fight with a rival gang on Yonge Street (a place he was prohibited from being) in Toronto on Boxing Day, resulting in the death of a girl and the injury of several others. To the extent that Justice Nordheimer’s comments focus on public respect for the justice system, as they rightly do, and appreciating fully the impact of Mr. Paonessa’s murder on his family and community, there is a chasm between Simpson-Rowe’s background and offences and N.M.’s. Quite simply, a youth sentence in Simpson-Rowe would have been unfathomable from the outset.
With respect to the circumstances of the offence, I make the following observations, following the same format:

What was N.M.’s role in the offence? Did N.M. choose to commit the offence?

N.M. was the sole offender. As he himself accepts he is responsible for what happened. It was an ambush offence and Mr. Paonessa had no chance to see what was coming or to defend himself. Clearly it is one of the most serious offences in the Criminal Code. At the same time, the Youth Criminal Justice Act explicitly envisages youth sentences as being presumptively appropriate for murder charges (even first-degree murder) so the fact the offence is murder is not an automatic path to an adult sentence. This is also clear from the cases filed by the parties. N.M. clearly chose to commit the offence. This was not a multi-defendant kind of scenario. The amount of thought that went into committing the offence, however, is considered below.

Is the offence indicative of bravado, impulsivity or invincibility? Was the offence planned or premeditated? Is the motive indicative of mature or immature reasoning? Did N.M.’s acts reflect critical thinking and adult-like judgment?

The British Columbia Court of Appeal in Chol noted that the factors they listed could work in one direction or another, perhaps both. The Crown takes bravado as a measure of maturity. I do not agree. Bravado, impulsivity and invincibility are, to the contrary, reflections of immaturity. At a minimum, bravado and impulsivity were evident here. The Crown says there was time here for deliberation on N.M.’s part, even though the guilty plea was to second-degree murder rather than first-degree murder. I disagree. The entire timeline from Mr. Paonessa’s return home to N.M. approaching the police car two kilometres away and surrendering is about half an hour. The time between the confrontation and the attack is not precisely defined, but it cannot have been very long at all. To the extent that the Crown seeks to rely on an aggravating fact on sentencing, of which the application for an adult sentence is part, that fact must be proved to a very high standard and I cannot be satisfied on this record that N.M.’s killing of Mr. Paonessa was more than impulsive. The idea that knocking out Mr. Paonessa with the bat would solve anything in N.M.’s life or in his relationship with the family, including avoiding being removed as Mr. Paonessa had again threatened, or achieve anything good is patently immature and devoid of critical or adult judgment. His utterance of the epithet, “bitch” to the unconscious Mr. Paonessa was also a sign of immaturity. The Crown is correct in pointing out that N.M. may have had a motive to strike Mr. Paonessa because of his threat to have N.M. removed from the home, which can be a sign of more advanced thought. There is, however, an alternative and viable interpretation, namely that that threat was simply the straw that broke the camel’s back in terms of a continuing relationship of confrontation and hostility between the adult Mr. Paonessa and the teenage N.M. as the record shows had been in play for around a year anyway.

Did N.M. follow through once the offence was initiated? Did N.M. cover up the offence?

This is not a case where follow-through arises because the offence was effectively over within seconds. As for cover-up, it is true that N.M. fled and discarded the bat, but that hardly bespoke sophistication as he ran into sub-zero weather in slippers and a flannel shirt and presented himself to police within perhaps fifteen minutes.

Did N.M. understand the consequences of his offence in terms of criminal sanctions and impact on others? Did N.M. take responsibility after the offence or show remorse?

N.M.’s previous conviction for assault causing bodily harm and my specific comments to him, about two years before, about the risk of unintended consequences mean that on an intellectual level he must have been aware of the consequences. His comments to police when he surrendered are also supportive of the fact that, at the time of surrender, he was aware of that and of the impact of his act. Those comments are also reflective of remorse.

Does N.M.’s personal growth since the offence tell us anything about him at the time of the offence?

The various reports demonstrate that N.M. has made significant progress during his time in custody. There is some history of institutional misconduct, but it seems more heavily weighted to his early days in custody. Despite the real progress he has made, however, there is still much work to be done, even after thirty-four months, in order to ensure that appropriate mechanisms are in place for him to regulate emotion and response and to reduce what is still a fairly high level of risk. Given the amount of work done to get to this point, I see this as supportive of the historic impression of N.M. as being of reduced moral culpability relative to his calendar age at the time of his offence.

Breach of trust

The Crown says this offence should lead to an adult sentence because it was a breach of trust. I disagree. A child is not in a relationship of trust over a parent or parent substitute. The parent or substitute is in a trust relationship over the child. I accept that the Paonessas had accepted him into their home and were providing an essential and undoubtedly often challenging service to society and some of its most vulnerable members, children in need of protection, something for which they deserve credit. The seriousness of the crime is considered elsewhere; adding a ‘breach of trust’ overlay where it does not apply adds nothing.

Has The Crown Shown That A Youth Sentence Could Not Hold N.M. Accountable?

The second branch of the test the Crown must satisfy for an adult sentence is to demonstrate that a youth sentence would be of insufficient length to make N.M. accountable for his offence. It is important that this be a conceptually distinct analysis from the moral culpability analysis, even though there may be some considerations in common.
The Court of Appeal has made it clear that “accountability” in the context of s. 72(1)(b) is the equivalent of the notion of “retribution” in the adult sentencing context. ²¹ “Retribution”, in turn, requires, “an objective, reasoned and measured determination of an appropriate punishment which properly reflects 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. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment and nothing more. ²² “Accountability” in the context of the Youth Criminal Justice Act does not entail an element of general deterrence. ²³ Accountability requires that the sentence reflect the seriousness of the offence and N.M.’s role and, “be long enough to provide reasonable reassurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society.” ²⁴
As can be seen from the language above, some of the considerations for the accountability determination overlap the first branch of the test for an adult sentence, i.e. the Crown refuting the offender’s diminished moral culpability and blameworthiness. I do not propose to repeat here what I have said there.
Any measurement of accountability and of the overall sufficiency of sentence must necessarily consider the nature of the offence. The taking of a human life violates one of society’s most fundamental norms. The offence here could only have been more serious if it had been pre-meditated or involved more victims. While N.M.’s intention was to knock Mr. Paonessa out, the nature of the weapon and the location of the blow involved a very high risk of death. The victim impact statements make it clear that the harm caused by N.M. was not limited to Mr. Paonessa but extended to his children, his wife, his expanded family and, given his community engagement, a much broader community. N.M.’s killing of Mr. Paonessa diluted the social capital of Niagara Falls.
I accept that it is not unusual for young offenders convicted of second-degree murder to receive adult sentences based on the accountability requirement. That being said, every case and every offender are unique and many of the second-degree murder offences that have led to adult sentences involve circumstances more serious than the present circumstances: non-spontaneous acts, worse criminal histories, less remorse, less personal growth and a trial rather than a guilty plea, for example. ²⁵
I do not consider that either N.M.’s chronological age (which I believe exceeds his age in terms of maturity or social development), or his previous conviction for assault causing bodily harm, either individually or together or in combination with other factors materially changes the measure of what would be an appropriate length of sentence in terms of the accountability analysis.
In considering the Crown’s application for an adult sentence based on the accountability criterion, one issue is the question of whether or not N.M.’s time in custody or under supervision will be sufficient to rehabilitate him. One option I am required to consider is the option of imposing a youth sentence but not granting credit for his time in custody. ²⁶ As the Court of Appeal has noted, the power to deny credit for pre-sentence custody enlarges the sentencing judge’s ability to exercise restraint in sentencing consistent with the requirements of the Youth Criminal Justice Act, while maximizing the likelihood of rehabilitation. N.M. has been in custody for thirty-four months of real time. It is open to me to give him no credit for that pre-sentence custody and impose a youth sentence of seven years, meaning a total period of almost ten years of state supervision since his arrest.
I have said that I do not propose to recite, chapter and verse, the many cases referred to me. That being said, I think there is much to be said for the judgment of Garson J. in R. v. T.J.T. ²⁷ As I have said, the likelihood of any two cases being on all fours with one another, in terms of the offences and/or the offenders’ backgrounds is very, very slight. This is true of N.M.’s case and T.J.T.’s case. For example, T.J.T. was younger, but his offence was even worse than N.M.’s and he was sentenced after trial, whereas N.M. has spared the Paonessa family the stress and anguish of a preliminary inquiry and trial. However, all things considered, T.J.T. provides reassurance that the sentence I propose for N.M. is the appropriate one. The same is true of the decision of Bowden J. in the British Columbia Supreme Court in R. v. P.H.. ²⁸

Conclusion

In light of the observations above I conclude: a. That the Crown has not rebutted the presumption of, “diminished moral blameworthiness or culpability,” that underpins the Youth Criminal Justice Act. N.M. was close to eighteen years old and his cognitive abilities were in the average range for the most part, albeit lower in that range. However, the cumulative effect of the impacts I have recounted above is such that his emotional development had been severely impacted and I would place his actual maturation as below his chronological age, despite his efforts to overcome the challenges he faced and despite his success in doing so at certain points. His reality means that he remains entitled to the presumption of diminished moral blameworthiness that applies to all young offenders. b. That the circumstances of the present case and the present offender, N.M., are such that it is feasible to craft a youth sentence for second-degree murder that would, “be of sufficient length to hold [N.M.] accountable,” for the murder of Tony Paonessa, with the nature of that sentence set out below.
Accordingly, N.M. shall be sentenced to a youth sentence.
As I mentioned earlier, one of the three sentencing paths that was argued was for me to impose a youth sentence on N.M. but without giving him credit for his pre-sentence custody. Not giving credit for pre-sentence custody is atypical in sentencing generally, but is a well-established option in youth cases where that method would allow for a youth sentence to fulfil the accountability requirement in s. 72(1)(b) of the Youth Criminal Justice Act. N.M. has been in custody a very long time already and he has made very significant, but not perfect, progress during that time. He has demonstrated that he is on the right path, although he has much work yet to do to ensure that he reinforces his coping skills and response mechanisms. That will take more time, but it does not require an adult sentence and can be accomplished within a youth sentence. Quite apart from a youth sentence sufficing to hold N.M. accountable, I can think of no conceivable advantage to N.M. serving an adult sentence in light of the facts of this case. Ideally, although this is not within my control, despite his current age, N.M. would continue to serve his sentence in the youth system. ²⁹
Accordingly, the sentence I impose on N.M., in addition to his pre-sentence custody is a sentence of seven years, broken up as follows: a. Three-and-a-half years to be served in custody. b. Three-and-a-half years to be served under conditional supervision, the terms of which are to be established under s. 105 of the Act.
Subject to the fulfilment of the condition in s. 42(7)(d) of the Youth Criminal Justice Act, N.M.’s time in custody shall be in the form of an intensive rehabilitative custody order and the period of conditional supervision under s. 105 shall be subject to the applicability of s. 104 of the Act, which allows for continuation of custody beyond the set period in certain circumstances. ³⁰
As I have said, to the extent that it may be relevant or necessary I recommend that N.M. serve his sentence in a youth facility notwithstanding his age and the presumption in s. 93 of the Youth Criminal Justice Act.
N.M. came to this court worried that he would just be seen as an angry black kid and that his story would not be heard. It is sad that he sees things that way, but given the pervasive and insidious presence of racism in society and institutions and given some of his own life experience with adults, it is understandable. I do not see an angry black kid. When I look back to the night of 29 January, 2019 I see a kid - who acted out of anger and did a terrible thing. I see a scared kid who acted out of anger. I see a scared, damaged kid who acted out of anger. I see a scared, damaged kid who was short-changed in various ways at various times in his life in ways that are part of the relevant context to his offence. N.M. does not seek to justify his crime by virtue of his background, he seeks only to put his crime in context. Context is always an important element in sentencing. N.M. fully recognizes that he must bear the blame and indeed the shame for what he did that night but he asks for recognition that very few situations are black and white. He asks not to be seen as a cold-hearted monster. Everything that he asks for is reasonable.
At the outset of these reasons I talked about Tony Paonessa and so I shall end them. Like every human being, Mr. Paonessa was not perfect. Unlike many of us, however, Mr. Paonessa was fully engaged in his community. He lived an oversized life compared to most of us. From what I have heard it appears that he packed more into his fifty-two years than most of us pack into seventy or eighty years. He and his wife Medina committed themselves and their family to making a difference, including about a decade of taking international students and foster children into their home. This undertaking reflected not only their faith but also their humanity and it would necessarily involve challenges, disagreements, frustrations and tensions from time to time. Yet they stayed with it. Ultimately, that commitment came at a very high price. Mr. Paonessa died far too young and his family lost a husband, father, son, and brother far too soon.
There are things that courts can do and things that courts cannot do. We can absorb facts, we can listen to arguments, we can sift and measure and weigh competing considerations and we can try in our own imperfect way to reach decisions that balance all sides of a situation and all the inputs and consequences involved in human conflict, including the most serious conflict, that involving the loss of life. What we cannot do is change what happened. We cannot undo that thirty minutes, erase the anguish that followed or fill in the gap that remained. Ultimately it is only Tony’s family and friends who bear that loss, a loss so vividly expressed in the statements I have received. The rest of us can only hope and pray that over time the rawness of Tony’s loss diminishes and that the memories of his love, commitment and contribution endure and provide strength.

Released: 2 December, 2021

Footnotes

Under s. 110 of the Youth Criminal Justice Act it is a serious criminal offence, punishable by up to two years’ imprisonment, for anyone to publish the identity of a young person charged with an offence or to publish any information that could lead to disclosure of the young person’s identity.
The agreed statement of facts gives 1 February as the date of death. The post-mortem report gives 30 January and 1 February as the date of death, distinguishing between neurological death and somatic death, i.e. when Mr. Paonessa was removed from life support.
Planning and deliberation do not necessarily require a long period of time or sophistication.
R. v. D.B. , 2008 SCC 25 .
Youth Criminal Justice Act, s. 42(2)(q).
Among the many things people will argue about is whether “black” should be capitalized or not. Anyone who wants to capitalize Black is welcome to do so. However, as the Nova Scotia Court of Appeal commented in R. v. Anderson, 2021 NSCA 62 , there is no consistency across all users. That court opted to capitalize both Black and White, in the first instance I can recall ever seeing the capitalization of white as a descriptor of race. I decline to do so. I wonder that if I were to capitalize black and white, would I then capitalize bi-racial, which is a more accurate descriptor of N.M.? (Ms. Pemberton, the author of the extended pre-sentence report capitalizes “Biracial”, again the first time I have ever seen that done). While it is clear that language changes over time, consistency, including consistency with rules of grammar, is not without its benefits and change should not be embraced for its own sake and without reasoned consideration. Black and white as descriptors are not the same as traditionally capitalized descriptors that have been capitalized, such as geographic, national or tribal nomenclature, e.g. African, Vietnamese or Mohawk for random examples. (A balanced assessment of the capitalization issue can be found in The Case for Capitalizing the B in Black:Black and white are both historically created racial identities—and whatever rule applies to one should apply to the other, Kwame Anthony Appiah, The Atlantic, available at: https://www.theatlantic.com/ideas/archive/2020/06/time-to-capitalize-blackand-white/613159/ )
As I mention elsewhere, N.M. said he did get some counselling, but it was not productive because his father was not involved.
Ms. B. was noted as the primary caregiver during this period.
It was a dynamic reality. There was a point where the Paonessas wanted N.M. moved, but did not want to give up on him. There were times when Mr. Paonessa would threaten removal was imminent, even though that was contrary to CAS policy for obvious reasons. CAS records show that N.M. made seven requests to be removed from the Paonessa home; N.M.’s estimate was fifteen to twenty requests. N.M. said that he was conflicted by concerns of wanting to move, worrying about adapting to a new placement and wanting to give his current placement a chance. None of that is surprising.
Racial tension (as opposed to cultural suitability) did not seem to be an issue in the Paonessa placement. However, Mr. Paonessa’s manner of dealing with N.M. was reflected in a 2015 CAS investigation relating to the placement of another foster-child.
A very positive, third-party assessment of N.M.’s inherent decency from a person with experience working with children from broken families can be found in the letter from Carla Hamlyn, who came to know him in 2017-2018.
2018 ONSC 2527 .
2018 ONSC 5186 .
2021 NSCA 62 .
2021 ONCA 680 .
.
(2007) 2007 ONCA 144 , 218 C.C.C. (3d) 409 .
R. v. W.M., 2017 ONCA 22 .
R. v. Chol , 2018 BCCA 179 .
, [2009] O.J. No. 1662 , Ontario Superior Court.
R. v. O.(A.), supra, at paragraph 46.
R. c. M.(C.A.) , [1996] 1 S.C.R. 500 , paragraph 80 .
See, R. v. A.(O), supra, at paragraph 48.
R. v. Ferriman, [2006] O.J. No. 3950 (McCombs J., SCJ) .
See, e.g. R. v. McClements , 2017 MBCA 104 ; [2017] SCCA No. 488; R. v. Manitowabi , 2014 ONCA 301 , R. v. Logan , 2009 ONCA 402 , R. v. Joseph , 2020 ONCA 73 , R. v. Anderson, 2018 MBCA 42 , R. v. E.D., 2008 ABPC 231 / 2010 ABCA 69 .
See, e.g. R. v. M.B. , 2016 ONCA 760 , [2016] O.J. No. 5365 (CA) , especially paragraphs 7 , 10, 11.
2018 ONSC 5280 .
[2017] B.C.J. No. 1858 .
The provincial director has the authority under s. 93(1) of the YCJA to permit a young person to continue to serve his or her sentence in a youth custody facility. This is not my decision to make, but it seems to me that N.M.’s circumstances, needs and progress to date would favour a continuation of the status-quo despite his chronological age.
No approval by the provincial director was presented in the course of sentencing, but I do not see that as an impediment to structuring the sentence in this conditional way since all of the other prerequisites for an IRCS order have been made out here. If the provincial director makes the relevant determination under s. 42(7)(d), which I hope would happen, then the IRCS order structure will apply to N.M.’s sentence, including both the custodial and conditional supervision elements.

R. v. N.M., 2021 ONCJ 617

Case Summary

Ontario Court of Justice

Fergus ODonnell J.:

Overview

The Legal and Procedural Background

What Happened? The Murder and a Brief Summary of the Antecedent History

The Victim Impact Materials

What This Decision Is Not About

N.M.’s Background

N.M.’s Comments About Mr. Paonessa’s Death

The Issue of Sentencing in Relation to Black Offenders and the Relevance of Family Dysfunction in Sentencing N.M.

An Adult Sentence or a Youth Sentence?

The Burden

Has The Crown Rebutted The Presumption of Reduced Moral Blameworthiness/ Culpability?

Has The Crown Shown That A Youth Sentence Could Not Hold N.M. Accountable?

Conclusion

Footnotes

Footnotes

R. v. N.M., 2021 ONCJ 617

Case Summary

Ontario Court of Justice

Fergus ODonnell J.:

Overview

The Legal and Procedural Background

What Happened? The Murder and a Brief Summary of the Antecedent History

The Victim Impact Materials

What This Decision Is Not About

N.M.’s Background

N.M.’s Comments About Mr. Paonessa’s Death

The Issue of Sentencing in Relation to Black Offenders and the Relevance of Family Dysfunction in Sentencing N.M.

An Adult Sentence or a Youth Sentence?

The Burden

Has The Crown Rebutted The Presumption of Reduced Moral Blameworthiness/ Culpability?

Has The Crown Shown That A Youth Sentence Could Not Hold N.M. Accountable?

Conclusion

Footnotes

Footnotes