WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
( b ) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
DATE: 2023 08 31 COURT FILE No.: Central East - Newmarket 4911-998-21-Y9110234-00; 4911-998-21-Y9110235-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
H.A.Q., (A Young Person within the meaning of the YCJA)
Before: Justice A. A. Ghosh
Heard on: May 30, July 19, 2023 Oral Sentence given: July 19, 2023 Written Reasons for Sentence Released on: August 31, 2023
Counsel: K. Batorska, counsel for the Crown G. Aristos, counsel for the defendant
Overview
1H.A.Q., a young person, pleaded guilty before me to “Discharge firearm”, “Possession of cocaine for the purpose of trafficking”, and several other offences involving firearms and breaches of court orders. He has a substantial youth record, which includes dispositions for robbery, arson, assault police, and breaking and entering.
2The Crown has applied to have the youth sentenced as an adult for a custodial term in the 6-7-year range. H.A.Q. was weeks away from his 18th birthday when he was arrested. The defence resists the application and submits that a significant youth sentence of custody and supervision is appropriate. H.A.Q. has been detained in custody for 20 months. These are my sentencing reasons.
Summary of the Evidence
Nov. 24, 2021: Possession of Loaded Firearm and Cocaine for Trafficking
3On November 23rd, 2021, York Regional Police initiated a bail-compliance investigation into a former co-accused of H.A.Q. During observations, the target entered a stolen vehicle with two other youths, including H.A.Q., within.
4The stolen car was driven to a restaurant in Toronto and the three occupants went inside. Police planned to arrest them for possession of the stolen vehicle. When the three parties exited the restaurant and walked back towards the vehicle, police initiated an arrest. The primary target and the driver were both arrested without incident.
5H.A.Q. ran from the police. He was chased and soon arrested as he attempted to hide nearby. During the arrest an officer fell and dislocated his shoulder.
6A firearm was seized from the primary target. A second firearm, a restricted, unauthorized Ruger-5.7 pistol, was thrown under a shrub by H.A.Q. as he ran from police. The magazine was in the handgun and contained 20 rounds of ammunition. H.A.Q. also possessed in his satchel about $6,000 cash, 20 grams of cocaine for trafficking, and other trafficking paraphernalia.
7H.A.Q. contravened a condition of a youth sentence that he was not to communicate with the primary target. He was also subject to multiple weapons prohibitions under the Youth Criminal Justice Act (YCJA). He was arrested less than a month before his 18th birthday and was mere months into a 2-year youth sentence.
Discharge Firearm – the Videos on his Phone:
8Police obtained a warrant to search H.A.Q.’s cellphone. Several videos were extracted depicting the following:
9On October 31, 2021, H.A.Q. was filmed driving a car while discharging a Ruger-5.7, restricted firearm, repeatedly out of the driver's window. He fired the pistol while keeping his gaze straight ahead, apparently indifferent to the potential anyone or anything could have been struck by the bullets. No one else is captured on video.
10In a Toronto parking lot on November 14, 2021, H.A.Q. was filmed sitting in the driver's seat of a motor vehicle in possession of firearms. Three videos from that date were extracted. In one of the videos, he had a Ruger-5.7 pistol (a restricted firearm) tucked into his pants. In the other two videos, the Ruger-5.7 and a Glock 19 (a prohibited firearm) with an extended magazine were laid out on his lap. He was not authorized to possess those firearms and was subject to prohibition orders as described.
Circumstances of the Young Person:
11A presentence report (PSR) was ordered for this application, pursuant to s. 72(4) of the YCJA. The young person has a significant youth record, including distinct dispositions for robbery, arson, breaking and entering, breaching orders and a host of other various offences.
12H.A.Q. immigrated with his family from Libya when he was 8 years old. He has always lived with his parents and three siblings. His fraught dynamic with his father has improved while he has been in custody this time. Their disagreements centred on the youth’s negative peer associations and related troubles with police. CAS had been involved with the family regarding his behaviour.
13H.A.Q. smoked marihuana often and his father believed alcohol became a problem as well. He held a couple of labour jobs briefly but quit as he felt he was undercompensated. The financial troubles within the family have been a regular source of difficulty and conflict. H.A.Q. has admitted his desire to make money informed his willingness to commit crimes. There is no suggestion he was keeping his family financially afloat with his proceeds of crime.
14The father now wishes for his son to be released from custody and to return home to his now more supportive family. The father believes that his son has recognized the wrongfulness of his actions and will not engage in further criminality. He believes H.A.Q. was pressured and threatened into crime by antisocial peers that are no longer in his orbit.
15The belief within the family that H.A.Q. would change his criminal ways has been previously expressed in at least one PSR. Since then, this criminality has escalated into significant sentences for arson, break and enter and the current offences involving firearms and drugs.
16H.A.Q. had not progressed far into the “Intensive Support and Supervision Program” he was sentenced to before he committed these offences. He has violated multiple court orders. Aside from his guilty pleas here to breaching his youth sentence and a firearms prohibition, he has two prior dispositions for breaching bail and was sentenced for being unlawfully at large.
17H.A.Q. has taken advantage of all programs offered at the Roy McMurtry detention centre, including courses on employment, decision-making and mental health management. While he has been constructive during his detention, his plans upon release to leave the relative stability of the family home and live on his own concern the PSR author. It is obvious his prospects are currently limited to sustain independent living through legitimate income.
Analysis – Sentencing Young Persons as Adults
18The Crown has applied for H.A.Q. to be sentenced as an adult, pursuant to s. 64 of the YCJA. The threshold preconditions in that provision to permit the application have been satisfied. The young person is over 14 years of age, and he has been found guilty of offences for which an adult is liable to a term of imprisonment of over 2 years.
19The two-pronged test to determine whether an adult sentence should be imposed in captured in s. 72 of the YCJA. I must impose an adult sentence where:
(a) The presumption of diminished moral blameworthiness is rebutted; and
(b) A youth sentenced applying the purpose and principles set out in ss. 3(1)(b)(ii) and 38 would not be of sufficient length to hold the young person accountable.
20The burden is on the Crown to demonstrate that the two-pronged test has been “satisfied”, and nothing more. “However, in applying that onus, it is important that a youth justice court bear in mind the very serious consequences of an adult sentence for the young person, so as to only order an adult sentence when necessary to fulfil the objectives of the YCJA.” [1]
21The “presumption” and “accountability” inquiries are distinct, and the Crown must satisfy each of them separately. [2] However, some of the factors applied may overlap.
Applicable Principles of Sentencing: Sections 3(1)(b)(ii) and 38 of the YCJA:
22Section 3(1)(b)(ii) of the Declaration of Principle of the Act outlines: “the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize … fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity”.
23Within the limits of fair and proportionate accountability, youth sentences should reinforce societal values and be meaningful for the young person, given individual needs and level of development. [3]
24Section 38 of the Act outlines the sentencing principles applicable to young persons. The purpose of sentencing youths is to hold them accountable through just sanctions with meaningful consequences that promote their rehabilitation and reintegration, thereby contributing to long-term public safety. [4]
25The sentence cannot result in a punishment that is greater than the punishment appropriate for an adult in similar circumstances. [5] The court must consider all available sanctions other than custody that are reasonable in the circumstances. [6]
26Subject to the principle of proportionality, the sentence must be the least restrictive to achieve the purpose of youth sentences, be the most likely to rehabilitate and to promote a sense of responsibility and an acknowledgment of harm done. [7]
27A youth sentence may denounce the unlawful conduct or deter the young person from future offending. [8] General deterrence has no place in the youth sentencing regime. Ultimately, as with adults, the proportionality principle requires the sentencing court to balance the seriousness of the offence with the degree of responsibility of the young person.
Mitigating Factors on Sentence
28The following mitigating factors are present:
i. Guilty Plea – H.A.Q. plead guilty and had not set hearing dates on this matter. ii. Presentence Custody – The young person has spent 601 days in presentence custody. This is significant and I will return to this. iii. Mental Health and Addiction – He has experienced abuse and violence both here and in Libya. The young person has self-medicated his mental health challenges, primarily with cannabis and some alcohol. He has taken programs to attend to these issues while in detention. While none of the assessments have correlated his offending with mental health, the use of cannabis has been characterized as a coping mechanism. iv. Rehabilitative Potential and Prosocial Pursuits in Custody – H.A.Q. has demonstrated insight into his offending and has taken advantage of all programs available to him while he has been in custody. While in detention, he completed high school with honours. He has been engaged and productive. As the PSR noted, H.A.Q. “has undoubtedly immersed himself and taken advantage of all that a youth facility offers. As a result, he has increased his skills and built an excellent resume.”
I note that the youth record and assessment history reveal that his past articulations of insight and remorse while in custody have been followed in the community with escalated offending and violations of court orders.
Aggravating Factors:
29The following aggravating factors have been established beyond a reasonable doubt:
i. Combination of Cocaine for Trafficking and Firearms – I accept that the combination of cocaine possessed for trafficking coupled with possession of a loaded firearm is aggravating. This confluence of illegal items present a heightened public safety concern. It is not double-counting to consider this combination as an aggravating factor while arriving at a fit and global sentence considering the totality principle. [9] ii. Criminal Record :- H.A.Q.’s youth record is aggravating and consists of the following entries:
Mar. 20, ‘20
Obstruct, FTC recognizance
12 mos probation
April 30, ‘20
Assault, theft under, FTC recognizance
18 mos probation
Oct. 22, ‘20
Robbery, dangerous driving
18 mos probation
Dec. 14, ‘20
Assault police, POPOBC over;
1-day custody / supervision
May 10, ‘21
Unlawfully at large
Absolute discharge
Sept. 10, ‘21
Arson; B&E (PSC not noted)
24 mos ISSP / probation
Sept. 13, ‘21
POPOBC Under
12 mos probation
Step 1 – The Presumption of Diminished Moral Blameworthiness Rebutted:
30In R. v. D.B., the Supreme Court drew from s. 3(1)(b)(ii) of the Act’s Declaration of Principle to confirm that youths are entitled to a presumption of diminished moral responsibility. [10] There is little case law discussing this prong of the test.
31Our Court of Appeal in M.W. directed that “the focus must necessarily be on the issue of maturity. The presumption assumes that all young people start from a position of lesser maturity, moral sophistication and capacity for independent judgment than adults.” [11] The Court then clearly outlined the analysis:
In order to rebut the presumption, the Crown must satisfy the court that, at the time of the offence, the evidence supports 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 or her. [12]
32The seriousness of the offences and the circumstances of the young person must be considered in determining whether the presumption has been rebutted. Serious offending, however, cannot do so on its own. “Rather, what is relevant to an analysis of whether the presumption has been rebutted is the level of moral judgment or sophistication demonstrated in the planning and implementation of the offence, and the young person’s role in carrying out the offence.” [13]
33The British Columbia Court of Appeal in R. v. Chol, outlined a series of non-exhaustive factors to guide the analysis in three broad categories. [14] First, the circumstances of the young person may engage factors such as age, background, youth record, and socio-economic considerations. Second, the circumstances of the offences may engage factors such as impulsivity, degree of planning and sophistication, the role of the young person, and any motivation behind the offences. Finally, the post-offence conduct may engage factors such as expressions of remorse, demonstrated insight and rehabilitative steps, both taken and prospective.
34I find the Crown has satisfied the first prong of the test by rebutting the presumption of the diminished moral blameworthiness. Importantly, H.A.Q. was mere weeks from turning 18 years old when the offences were committed. [15] Many of his prior dispositions involve an inferred degree of planning and offending maturity: Arson, robbery, break and enter. He agreed that many of his prior offences were motivated by greed, and he was also paid to commit some of these crimes.
35The current offences display the same hallmarks of maturity and planning. H.A.Q. left his home to meet a prohibited party while carrying cocaine for trafficking and a loaded firearm. A considered decision was made to carry a gun, inferentially here as a tool of the drug trade. He was on multiple weapons prohibitions and serving a youth sentence.
36This confluence of offending is serious and demonstrates sophistication. H.A.Q. must be fixed with a high degree of moral responsibility for these offences, additionally given his youth record and the sentence and prohibitions that were in effect at the time.
37While I accept the objective dangerousness of the “discharge firearm” facts, I find that the video clips support relatively random and impulsive conduct. H.A.Q. was shooting out of a moving car without an apparent or intended target.
38However, the cool calculation informing much of his offending history supports planned and commercially driven criminality. Assessing the maturity and sophistication of his criminal antecedents and the current offences, mindful that he was right on the cusp of adulthood, I find the Crown has rebutted the presumption of diminished moral responsibility.
Step 2 – A Sentence Sufficient to Hold the Young Person “Accountable”: The Law
39The second distinct inquiry requires an assessment of whether a youth sentence is of “sufficient length” to hold the young person “accountable” for the offending behaviour. Again, s. 38 of the YCJA directs that the purpose of any youth sentence is to hold the young person accountable. This is accomplished by the imposition of just sanctions that have meaningful consequences and that promote rehabilitation and reintegration.
40Our Court of Appeal has identified accountability in the YCJA context as the equivalent to the adult sentencing principle of retribution. Further, it recognized the close connection between moral culpability and retribution. Retribution represents 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”.
41Retribution incorporates the principle of restraint and requires the imposition of a just and appropriate punishment, nothing more. [16] While rehabilitation and reintegration are important considerations in the accountability inquiry, they are not determinative. [17]
42As the determination of the accountability prong of the test will decide the application, I will apply the law to the circumstances here in the final discussion.
Final Discussion: Can a Youth Sentence Hold Him Sufficiently Accountable?
i. Umbrella findings of moral responsibility and rehabilitative prospects
43The Crown having rebutted the presumption of diminished responsibility, it must be determined if a youth sentence can be of “sufficient length” to hold H.A.Q. responsible. “Length” of sentence here arguably invokes the duration of custody, and all agree that custody is necessary. The fit sentence itself, obviously, must be decided as well.
44H.A.Q.’s expressions of remorse and insight ring somewhat hollow at this stage of his criminal career. He had previously expressed a similar desire to pursue a law-abiding life, but his offending continued and became more serious. He says and does many positive things while in presentence detention. I had sentenced H.A.Q. twice before, for arson for breaking and entering. As I had confirmed with him before taking his plea, he has nonetheless selected me to sentence him for yet a third time.
45The young person’s family continues to misapprehend his motivations to commit crime. His offences have less to do with the influence of negative peer relationships, and more to do with his pursuit of crime for profit. He conveyed as much during various PSR processes. The s. 34 report from a previous hearing was instructive.
46H.A.Q. is now an adult, having made mature decisions to cultivate antisocial relationships to support and further his financially motivated offending. For example, he had been paid by criminal associates to commit a commercial arson. He also explained in a PSR that in planning to commit a carjacking robbery, while offering it was a “group decision”, he agreed that “he saw the car and wanted to sell it to make money”. These offences were flagrant and profit-driven, just as he held cocaine for trafficking and a loaded gun contrary to outstanding prohibitions.
47Despite progress made while in custody with the father-son dynamic, H.A.Q.’s family life has been unstable and marred with conflict and abuse. In the various reports over the years, the family collectively painted an unduly optimistic picture about a safe, stable family life. I am convinced that is not likely at present. There is a great deal of unresolved pain and trauma, and the youth is unwilling to tread those grounds through family counselling.
48The short-term plans are for H.A.Q. to return home for a time or pursue independent living. Neither seems ideal for his rehabilitation, as all his offending occurred while he lived with his disrupted family. Unfortunately, H.A.Q. has been his most productive and prosocial while he has been in custody. Ideally, he will need to find a way to sustain this progress in the community.
ii. Presentence custody for a youth facing an adult sentence:
49Regarding his detention, he has spent 601 days (or 20 months) in presentence custody. This is no small concern in determining whether to impose an adult or youth sentence here. A youth court has discretion “to determine whether and how much credit should be given presentence custody when fashioning an appropriate sentence for a young person where the possibility of an adult sentence is on the table.” [18]
50Section 38(3)(d) of the Act requires me to “take into account the time spent in detention by the young person as a result of the offence.” For youths, it does not involve a mechanical calculation. Our Court of Appeal in R. v. M.B. had again “recognized that a sentencing judge’s discretion includes the ability to award no credit for presentence custody against a youth sentence, particularly in the context of an application made by the Crown to sentence a youth as an adult.” [19]
51The Court candidly observed that the reasons to afford such discretion are “apparent”, in that it allows the court, within the confines of a Crown application for an adult sentence, to give effect to the “least restrictive” and “non-custodial” imperatives of the YCJA. Whether noted or not, H.A.Q. is potentially eligible to receive credit of 30 months for presentence custody. [20]
52It is clear the appellate law in this area permits me to consider, without noting, H.A.Q.’s presentence custody at 1.5 credit for each day spent in detention. [21] That affords 901 days (or 2.5 years) of potentially uncredited mitigation that I will consider.
iii. Sentencing Ranges for these Offences – Guns and Drugs
53There is no parity of sentence between adult and youth offenders, given the distinct sentencing principles operative for each regime. [22] However, there is illustrative value in adverting to the adult sentencing ranges for these offences to guide the assessment of whether a youth custodial term is of “sufficient length” to hold H.A.Q. accountable.
54Should the global custodial term available to H.A.Q. under the youth system mirror or exceed that of an adult, this must be expressly considered (and avoided). [23] Such a finding may also essentially dispose of the “sufficient accountability” analysis and call for a youth sentence. I will briefly discuss the ranges of adult sentences for the discrete offences committed, which are not so controversial.
55This is a “true crime” s. 95 firearms offence, as the young person carried a loaded firearm while possessing almost an ounce of cocaine for trafficking. He possessed the gun in a vehicle and then a public space. As he also held significant quantities of cash, it is clear the firearm was held to protect or advance his drug trafficking endeavours. He was on multiple firearms prohibitions as well.
56I agree that the sentencing law could support a sentence in the 2–5-year range for a young adult. In 2015, the Supreme Court in R. v. Nur confirmed our Court of Appeal’s decision to strike down the three-year mandatory minimum for possessing a loaded unauthorized firearm, while acknowledging such a term as a malleable range of sentence. [24] Since then, first-time offenders in our province have received sentences ranging from mid-reformatory, [25] to the exceptional conditional sentence, [26] to penitentiary terms in the 2-5 year range. [27]
57As a valuable distillation of the range fitting the facts here, the Court of Appeal in R. v. Morris observed:
As the trial judge acknowledged, the seriousness of Mr. Morris's crimes required a significant term of imprisonment. The possession of a loaded, concealed handgun in a public place, the flight from the police, and the disposal of the loaded weapon in a public place were all aggravating factors. As indicated earlier, we see no reason to depart from the range fixed in cases like Nur and Smickle. In most cases, at the "true crime" end of the spectrum, a penitentiary sentence will be necessary for a s. 95 offence. In some cases, sentences at or near a maximum reformatory sentence will be appropriate. [28]
58It is noteworthy that the Court in Morris mentioned that where the fit sentence for a s. 95 offence is in the reformatory range, especially with race-informed context evidence, the court “must give careful consideration to the imposition of a conditional sentence.”
59I agree that the related violations of multiple weapons prohibitions may otherwise have required a sentence consecutive to the possession firearm offence, in the 6-18-month range. [29] The breach of a targeted weapons prohibition serves a distinct societal interest from the underlying firearm possession or usage offences.
60The offence of recklessly discharging a firearm will also require a significant penitentiary sentence, but the circumstances of the offence are key here. The Bellissimo appellate range of 7-11 years [30] reserved for “serious gun-related” discharge offences does not readily apply to these facts, especially in the absence of injuries or intended victims. [31]
61The Court of Appeal in R. v. Bellissimo was addressing facts related to a brazen daytime shooting in a restaurant where two parties were injured, and a third target narrowly missed. The place was busy enough, and a verbal conflict and death threat preceded the targeted shooting. That range does not apply here.
62Without diminishing the inherent seriousness of the reckless discharge of a firearm, H.A.Q. had himself filmed for seconds while he fired shots out of a moving car. It was difficult to discern his surroundings, but there were no apparent nor intended human targets. There is no evidence any property or person was affected or disturbed by this offence. These facts, at best, are closer to the 5-7 year range distilled by Justice Schreck in Jama, reserved for cases where shots are fired with others present, but no one targeted or hurt. [32]
63H.A.Q. accepted that he was reckless towards the lives or safety of others in shooting this way, but there was no one there. It may have given rise in a different setting to a challenge to the mandatory minimum sentence of 5 years. While inexcusable, these are exceptional facts supporting a lower degree of moral responsibility. Mindful of totality and proportionality, I find the “discharge firearm” count would have warranted for a young adult a concurrent 5-year minimum sentence to the s. 95 loaded firearm sentence.
64Turning to the range for cocaine possessed for trafficking, H.A.Q. held 20 grams for that purpose. Our Court of Appeal in R. v. Woolcock reflected that possession for trafficking of several grams of cocaine will often attract a sentence of 6 months to less than 2 years. [33] Sentences at the higher end of that range often involved more significant quantities or repeat offenders.
65A single ounce of trafficked cocaine would place the offender near the top end of that range. [34] Multiple ounces may yield a significant penitentiary sentence. [35] Again, the combination of firearms and drugs for trafficking is an aggravating factor.
iv. Final “Accountability” Analysis – Youth Sentence is of Sufficient Length
66Ultimately, I agree with the Crown that a global sentence of 6-7 years is within the range for a young adult committing the same offences. I disagree that a young adult could have reasonably faced a double-digit penitentiary sentence on a plea, as the 5-year minimum for the unusual “discharge firearm” facts would have collapsed in the proportionality / totality assessment into a concurrent sentence.
67I also find that the jurisprudence supports that a shorter global penitentiary term could be warranted in the 5-6-year range. This is important, mindful of the presentence custody, in determining whether a youth sentence near the maximum of 3 years would be of sufficient length to hold the young person accountable.
68As mentioned, H.A.Q. has performed well in a youth detention setting and completed several courses and counselling regimens. He is now able to thoughtfully articulate insight into his offending and personal struggles. His relationship with his family, particularly his father, has dramatically improved during this time apart. H.A.Q. is interested in amplifying his employment prospects. There is a legitimate concern that a significant adult sentence could unduly derail this young person’s prosocial prospects at this very formative time.
69On the other hand, I am not persuaded that any disposition short of the maximum youth sentence of 3 years of custody and supervision could hold H.A.Q. accountable. The aggravating facts are sufficient to cause concern that the 10-15 further months of custody submitted by the defence would not align with the applicable principles of sentencing in the YCJA.
70In imposing such a sentence, I will have effectively sentenced H.A.Q. under the youth regime to some semblance of a 5-and-a-half-year custodial term, mindful of the presentence custody. I find that is within the lower end of the available range for a young adult in similar circumstances. As unwieldly as that observation admittedly is, it signals that such a youth sentence is of sufficient length to hold this young person accountable for the serious offences he has committed.
Conclusion:
71Accordingly, the Crown application to have H.A.Q. sentenced as an adult is denied. I consider, without noting, 20 months of presentence custody. I would have otherwise credited him for 30 months.
72Mindful of totality and the prospect that consecutive sentences may have been appropriate, H.A.Q. will be sentenced to 36 months of custody and supervision. I will apply the two-thirds apportionment of 24 months custody and 12 months of supervision to follow.
73The custody and supervision order will be followed by a term of probation of 2 years with conditions involving reporting, counselling, and prohibited weapons. There will be a section 51(2) weapons prohibition for 10 years. All seized items are to be forfeited to the Crown.
74My thanks to counsel.
Released: August 31, 2023 Signed: Justice A. A. Ghosh
[1] S. 72(2) of the YCJA; R. v. A.O., 2007 ONCA 144, para. 38 [2] R. v. M.W., 2017 ONCA 22, para. 95 [3] S. 3(1)(c)(i)(iii) of the YCJA [4] S. 38(1) of the YCJA [5] S. 38(2)(a) of the YCJA [6] S. 38(2)(d) of the YCJA [7] S. 38(2)(e)(i-iii) of the YCJA [8] S. 38(2)(f)(i-ii) of the YCJA [9] R. v. Crevier, 2015 ONCA 619 [10] R. v. D.B., 2008 SCC 25, paras. 45 and 93 [11] M.W., para. 97 [12] M.W., para. 98 [13] M.W., para. 112 [14] R. v. Chol, 2018 BCCA 179, para. 61 [15] R. v. D.E., 2011 ONCJ 157, para. 2 [16] R. v. C.A.M., [1996] 1 S.C.R. 500; M.W., paras. 103-104; A.O., paras. 46-47 [17] R. v. Ellacott, 2017 ONCA 681, para. 36; A.O., para. 57 [18] R. v. M.B., 2016 ONCA 760, para. 7 [19] M.B., para. 10; R. v. E.L., [2006] O.J. No. 1517 (C.A.); R. v. D.W., 2008 ONCA 268 [20] M.B., paras. 10-16 [21] See s. 719(3.1) of the Criminal Code, s. 38(2) of the YCJA, R. v. M.B., R. v. Summers, 2014 SCC 26 [22] R. v. Wobbes, 2008 ONCA 567, para. 73 [23] S. 38(2)(a) of the YCJA [24] R. v. Nur, 2015 SCC 15, [2015] S.C.J. No. 15 [25] R. v. Williams, 2011 ONSC 3914; R. v. Smickle, 2014 ONCA 49 [26] R. v. Moses, 2022 ONSC 332; R. v. McLarty-Mathieu, 2022 ONCJ 498; R. v. Hill, 2023 ONCJ 357 [27] R. v. Francis, 2022 ONCA 729; R. v. Mansingh, 2017 ONCA 68; R. v. Marong, 2020 ONCA 598 [28] R. v. Morris, 2021 ONCA 680, para. 177 [29] R. v. Dhaliwal, 2018 ONSC 303, paras. 68-76; R. v. Manning, [2007] O.J. No. 1205, paras. 24-26 [30] R. v. Bellissimo, 2009 ONCA 49 [31] R. v. Johnston, [2021] O.J. No. 2722; R. v. Jefferson, 2014 ONCA 434; R. v. Ferguson-Cadore, 2022 ONCA 829 [32] R. v. Jama, 2021 ONSC 4871 [33] R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), para. 15 [34] R. v. Ahmed, 2016 ONCA 831, para. 4 [35] R. v. Dhesi, 2019 ONCA 569; R. v. Evans, 2019 ONCA 715; R. v. Graham, 2020 ONCA 692