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:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

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

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

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: 2024 October 1 Court File No.: Toronto 998 22 Y82210910

BETWEEN:

HIS MAJESTY THE KING

— AND —

A.B., a young person (or “young persons”)

Before: Justice David S. Rose

Heard on: May 30, July 12, August 28, September 16, 2024 Reasons for Judgment released on: October 1, 2024

Counsel: Ms. Humphrey, Ms. De Filippis, Ms. Guirguis............................ counsel for the Crown Ms. Goldlist, Ms. Bavaro...................................................... counsel for the accused A.B

Rose J.:

Overview

Overview

1A.B. was one of eight young persons who appeared before me on April 22, 2024 for a preliminary hearing on Second Degree Murder charges in relation to the death of Kenneth Lee. After three weeks, at the conclusion of the preliminary hearing, A.B. instructed her lawyer to resolve the charge to the lesser offence of manslaughter. These are the reasons for sentence.

2Four of the eight young persons who appeared before me have now pleaded guilty. The other four were committed for trial and have trials coming up in the Superior Court. One of the four who pleaded guilty before me has already been sentenced, see R. v. M.J. 2024 ONCJ 455. While there is a commonality to the facts and law applying to the four young persons before me, each must be considered separately. For that reason, and that there are still four other co-accused awaiting trial, I would limit my discussion of the co-accused in this decision.

3The attack on Kenneth Lee took place in less than four minutes just after midnight on December 18, 2022. He was swarmed by the eight youths at a public park at the corner of Front Street and York Street right across the street from the east entrance to the royal York Hotel. It was in full public view. A.B, was 13 at the time and was a full participant in the swarming but was not the youth who wielded the knife. Kenneth Lee would die from a single knife wound that morning. Neither Kenneth Lee, nor the ambulance attendants who arrived within minutes, nor A.B. knew that he had been knifed during the melee. The knife wound only came to light after some minutes. The attack was vicious, cowardly, and done in open view of anyone passing through that area. When it was reported the next day it shocked the people of Toronto.

Facts

Facts

4A.B. met up with the seven other co-accused just after nine pm on December 17 at Yorkdale subway station. They were in the company of another teenaged boy, J.B. who accompanied them that evening but was not involved in the swarming.

5Video of the group as they passed through the subway system that night captures their activities. Just after 9:30 pm A.B. was seen on the Yorkdale Subway platform running while carrying a blue handled knife. She was play fighting with another of the teenagers, at one point chasing J.B. She handed the knife off to another in the group and boarded a train with the group.

6The group travelled south to St. George Subway station where they caused a commotion. AB, for instance, yelled and lunged at two males exiting the train and was restrained by two in her group. A.B. and another girl chased the males down the subway platform, yelling at them. A.B. and others in the group then kicked a subway car causing it to be delayed. TTC Special Constables and Toronto Fire Fighters arrived and escorted them out of the station.

7They re-entered only minutes later without paying and proceeded to harass a passenger Mr. Marchetto. A.B. threw a bottle at him and yelled at him until J.B. intervened to stop her. They travelled south bound on a TTC train to St. Andrew Station. By then it was just after 10:30.

8As that train approached St. Andrew subway station video taken from inside the car shows three others in the group accosting two women passengers. When the train pulled into the station the altercation spilled out onto the platform. It broke up and the group went upstairs to the station entrance. There they assaulted two more women who were passing through the station. A.B. joined that assault as it was underway until she was re-directed away by one of the group. The group then left St. Andrew Subway Station and went into Union station on foot. After that they went up to the street level and stopped at a nearby restaurant for only a few minutes.

9By 11:53 pm the group arrived in the parkette at the foot of University Avenue. The parkette is triangular, bounded to the West by University Avenue. York Street to the East and Front Street to the south. An office building is the to the north of the parkette.

10The parkette is not large, perhaps only 55 meters at its longest and widest, and is surveilled by a video camera mounted on the office building and looking south across the parkette. It captured the entirety of the swarming.

11The parkette has a semi circular area on the east side which is enclosed by a waist height concrete retaining wall. That wall encloses a garden. It is in that semi circular area where most of the swarming occurred.

12Kenneth Lee and his companion Erika Tong are seen on video arriving in the parkette at 11:59. They were both homeless and have with them some belongings, a knapsack, a green bag. Ms. Tong appears to be carrying a bottle of alcohol. After they arrive Mr. Lee leaves Ms. Tong in the parkette and walks north toward the Strathcona Hotel, which was a shelter at that time.

13The group arrive shortly thereafter. One of the group of takes an interest in Ms. Tong’s bottle of alcohol and Ms. Tong then leaves the parkette walking north. One of the group takes her bottle of alcohol, drinks from it and then gives it back to her. A.B. is present for that.

14Ms. Tong walks back to the parkette and stands by the planter. Mr. Lee joins her shortly thereafter. Almost immediately Mr. Lee and Ms. Tong are standing with their backs to the concrete retaining wall when they are confronted by three in the group of youths. One of them throws something at Mr. Lee and Ms. Tong. Mr. Lee pushes back at the group and is then attacked by the entire group in waves.

15During that initial wave Mr. Lee is backed up into the parkette into the planter. He is pummelled by the group. A.B. is seen punching him from behind. In subsequent waves she continues to punch him, and hit him.

16During this last wave one of the group is seen brandishing a knife and lunging toward Mr. Lee. While A.B. was part of the melee at this point there is no evidence that she knew a knife would be used or that he was stabbed.

17My review of the video surveillance leads me to find that A.B. was a very active participant in the swarming. She was aggressive throughout, landing multiple punches on Mr. Lee. An image taken from the one of the girls’ cell phone shows Mr. Lee to have a bloody face. It would not be lost on anyone that Mr. Lee had suffered serious injury, though A.B. would not know that he had been mortally stabbed.

Victim Input

Victim Input

18Kenneth Lee was much loved. He was living on the streets for reasons which were never fully explained. My sense from the victim input is that he was a proud man, who didn’t do drugs, or drink. He grew up in an overprotected but supportive family and, at 59 years old, left the family safety net behind to find himself. I did not get the sense that leaving the family home left Kenneth Lee estranged. Rather, he was in constant contact with his family.

19Kenneth Lee had a close relationship with his family. He told corny jokes and bonded with his nieces over pizza, chocolate milk and a game of monopoly. He was their mentor, confidant and shining light.

20The death of Kenneth Lee left his family distraught. His octogenarian mother is nothing more than an empty shell having to survive her son. His sister is depressed and taking medication for insomnia. His nephew has developed anxiety and depression. His grades in school have suffered, and he is only now beginning to learn how to cope.

21Kenneth Lee’s brother in law Eric Shum read the victim input to me on behalf of each family member. Mr. Shum has the unfortunate responsibility to keep his family together. He sees the lack of joy in his wife, mother in law, and children, but is the one who pays the bills so it falls to him to keep going forward. This has been difficult. He lives on pins and needles at home.

22What is clear from the victim input is that the death of Kenneth Lee has left his family in deep emotional agony, struggling to carry on.

A.B.

A.B.

23A.B. was 13 at the time of the offence and is now 15. It was her first time under arrest. She testified at the guilty plea twice: on May 30 she testified to admit the Agreed Statement of Facts under oath; and on August 28, she testified about being strip searched. I have the benefit of two reports authored by CAMH ordered under s. 34 of the Youth Criminal Justice Act (YCJA), a Pre-Sentence Report (PSR), a report by Central Toronto Youth Services deeming A.B. eligible for ISSP, and testimony from Elisa Lopez from Toronto youth services, and Daniela Fernandes a youth probation officer. The cumulative effect of all of this was extremely helpful to me in determining A.B.’s sentence.

24A.B.’s parents separated when she was 5. She has been raised by her mother since she was 7. She has a close relationship with her mother. While her father appears to be have been involved with her sporadically, that ended in 2023. She has a stepfather who is closely involved in her life. I understand from the PSR that A.B. is provided for but her family is of limited means.

25While A.B. and her mother have a close relationship the s. 34 report confirms A.B. to be on a rollercoaster. Her mood fluctuates daily and this causes tension in the family. Overall the house is peaceful and A.B. has positive relationships with her siblings. The s. 34 report concludes that diagnostically A.B.’s mother is experiencing significant stress raising her. That report diagnoses A.B. with a Persistent Depressive Disorder, Generalized Anxiety Disorder, Eating Disorder, Cannabis Use Disorder (which is in early remission), and Conduct Disorder.

26A.B. was released on Bail and obeyed a curfew. She faced appropriate consequences for household misbehaviour, including phone confiscation, being grounded and discussions with her mother.

27Notably, A.B. began consuming marijuana at age 12, and has been consuming 2 grams per day. The s. 34 report confirms that she experiences symptoms of withdrawal when she reduced her marijuana intake.

28Beyond marijuana A.B. has seriously abused alcohol. She attempted suicide by alcohol poisoning, which resulted in being hospitalized. In the months before this incident she blacked out from alcohol consumption 5 -6 times. This must be put into the context of the Kenneth Lee swarming where video evidence shows A.B. showing gross symptoms of intoxication, including vomiting and passing out in the minutes after the swarming.

29A.B. told the PSR writer that she no longer want to smoke marijuana or drink alcohol, but at 15 she has a drug and drinking problem.

30Since A.B.’s arrest she has been working with Turning Point Youth Services going back over a year. Her youth worker confirmed that she has attended over 50 counselling sessions. She has a positive relationship with a Youth Social worker. Since June of 2023 he has been conducting counselling sessions with her while she was detained. From the PSR it appears that she has been candid with him, but the work on her mental health continues. She has completed 40 hours of community service while in custody.

31A.B. reported being under the influence of drugs and alcohol at the time of the swarming. The video surveillance evidence confirms this. She told the s. 34 report authors that the swarming happened because she does not know how to walk away from certain situations. She regrets the incident and doesn’t think that Kenneth Lee should have been stabbed but with that said, she believes that he put his hand on one of the girls and it was appropriate for him to be beaten as a consequence. She acknowledges that her behaviour that night and this charge are serious. She has some limited insight into how to avoid this happening again. When challenged she defends herself, but recognizes that she needs to stop taking things “serious and personal”. Notably, she told the authors that she does not think Mr. Lee was impacted beyond his stab wound. It is difficult to know what to make of that. On one hand, she recognizes that Kenneth Lee was stabbed to death during a swarming in which she was an aggressor. On the other hand, she fails to recognize that her role in the swarming contributed to this needless death.

32Overall A.B. wants to continue counselling to get through this and change. She has a positive therapeutic relationship with her counsellor and wants to continue. Another counsellor is a valued mentor, and their work together is helpful. Her mother and stepfather are also quite positive about the need for help with A.B. There is no sense that A.B. or her family are reluctant to get help or fail to see the need. I find the opposite. This person and her family will benefit from significant intervention.

33The only frustrating part of the S. 34 report for the Court was its failure to opine about A.B.’s risk to re-offend. As it concludes, “…a risk to re-offend assessment is not relevant to her”. I disagree. In the absence of an opinion about that from CAMH I find that A.B. is at a real risk to re-offend violently if she is not given the benefit of extensive treatment and counselling in the next few years.

Pre-Sentence Custody

Pre-Sentence Custody

34A.B. has substantial pre-trial custody. She was in secure custody for 41 days from her arrest on December 18, 2022 until January 27, 2022 when she was released to bail.

35She was re-arrested on February 15, 2024 when she was placed in secure custody for 12 days and then transferred to open custody on February 27 until today.

36In sum, she has been in secure custody for a total of real 52 days and open custody for 218 real days.

37During this period she was strip searched 6 times on a routine basis. The first 4 times were at the Sundance facility right after she was arrested. During the first four of these A.B. was required to be totally naked for a short period of time. A judicial order prohibiting strip searches resulted in the facility placing A.B. in isolation for 24 hours. The last two strip searches were at the Craigwood facility this past February as she was returning from Court appearances. The Crown admits that the strip searches were unreasonable because she was required to stand naked and turn around. That happened 4 times at Sundance. On January 26, 2023 Justice Srivar ordered that the A.B.’s custodians not strip search her.

38A.B.’s evidence is that she found the strip searches embarrassing and feels shamed by them. Similar to her co-accused M.J. (supra), A.B. does not seek a constitutional remedy for the strip searches. Rather she argues that it is a mitigating effect on her overall sentence.

39While the Crown does not fix the rate of pre-sentence custody for A.B.’s time in closed custody, the defence argues that it should be credited at the rate of 3:1, giving her 159 days of pre-sentence custody on top of 305 days of credited open custody.

40There is no strict mathematical formula to be applied when considering pre-sentence custody but it must be considered, see YCJA s. 38(3)(d), R. v. E.L. at par. 9. It is normally 1.5:1 but that is a starting point. It is not a mechanical calculation, see R. v. M.B. 2016 ONCA 760. The young person’s institutional experience, including the conditions, can affect that credit, see R. v. D.S. 2008 ONCA 740. The pre-sentence custody is not part of the sentence, but simply a mitigating factor, see R. v. Mathieu 2008 SCC 21.

41In R. v. Golden 2001 SCC 83 a majority of the Supreme Court of Canada considered the lawfulness of strip searches of arrestees. In framing a procedure for determining whether a strip search was lawful they said this, at par. 83:

While the respondent and the interveners for the Crown sought to downplay the intrusiveness of strip searches, in our view it is unquestionable that they represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them.

42The language of the Court is vivid and reflects judicial condemnation of unlawful strip searching. The Crown agrees that A.B. was unreasonably strip searched. A.B.’s claim to being improperly treated while in custody has considerable merit, particularly when considering the YCJA s. 3(1)(b)(iii).

3 (1) Policy for Canada with respect to young persons The following principles apply in this Act:

(b) 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 the following:

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

Emphasis added

43I find that strip searching such a young person, and placing her in solitary confinement because of a judicial order to stop strip searching is a significant mitigating factor in sentencing. I accept the defence invitation to weight A.B.’s secure custody at a rate above 2:1 for each day served.

Positions

Positions

44The Crown seeks a 3 year custody and supervision order, under s. 42(2)(o) of the YCJA less pre-sentence custody. The Crown takes the position that A.B.’s time in open custody be credited at the rate of 1.5:1, and at least 1.5:1 for her time in closed custody. The Crown asks that the remaining part of her custodial sentence be served in open custody. The Crown asks for the following ancillary orders: 10 year weapons prohibition under s. 51 of the YCJA; DNA Databanking; a non-communication order with her co-accused and J.B. under s. 42(2)(s) of the YCJA while she is in custody.

45Ms. Goldlist argues that A.B. is in a time served position and that she should be placed on probation and ISSP for 21 months.

Sentencing Framework

Sentencing Framework

46Sentencing young persons is different than sentencing adults. Parliament has deemed this so by requiring youth court judges to follow the sentencing framework in the YCJA. It is found in s. 38 of the YCJA:

38. 38(1) Purpose The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

38(2) Sentencing principles A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

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

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

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

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

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

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community;

(e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if

(i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1) ,

(ii) the young person will reasonably be able to comply with the condition, and

(iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

38(3) Factors to be considered In determining a youth sentence, the youth justice court shall take into account

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

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

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

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

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

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

47Accountability, rehabilitation and re-integration of the young person are all connected in s. 38.

48In a case such as this were a vulnerable victim such as Kenneth Lee died during a swarming accountability plays a significant part. As I said in R. v. M.J. (supra) at par. 45:

45 Accountability must meet reflect the moral culpability of the young person having regard to the intentional risk taking of the offender see R. v. O.(A) 2007 ONCA 144 at par. 47 , and the harm caused by the offence, see R. v. KOM 2017 ONCA 106 , R. v. L.R.P. 2004 NBCA 76 . The accountability requirement means that sentencing youths is not entirely offender centric. The normative character of the offender's conduct is a very live issue. The sentencing Court must consider societal values (see O.(A.) supra at par. 48). The British Columbia Court of Appeal found that:

...accountability includes consideration of the seriousness of the offence and requires a sentencing judge to balance and match the rehabilitative needs of the young person, with the other purposes and principles of sentencing.

See R. v. S. (S.N.J.) 2013 BCCA 379 at par. 29

Accountability and rehabilitation are therefore "...interrelated concepts", see " Prosecuting and Defending Youth Criminal Justice Cases — 3d ed" (Emond Publishing 2024) by B. Jones, S. Leece, M. Birdsell, and E. Rhodes at page 261.

49In R. v. M.J. (supra) at paras 50 – 51 I canvassed the range of appropriate sentences in manslaughter cases. There is a great range of dispositions from; 2 years of custody after 9 months of pre-trial custody in R. v. J.S-W. 2013 NBCA 44; 2.5 years custody less pre-sentence custody in R. v. P.C. 2013 ONSC 1293; R. v. S.Q.F. 2008 MBQB 119 where 4 months open custody was imposed after 1 year of pre-trial custody.

50That range of cases includes decisions from outside Ontario, but is nonetheless helpful. The parity requirement under s. 38(2)(b) of the YCJA must take into account the sentence imposed on M.J. (supra). She received an ISSP order of 15 months after credit for some 15 months of pre-trial custody. I would find that M.J.’s role in the swarming was similar to A.B. She was an active participant in the swarming but did not wield the knife that killed Kenneth Lee and had no knowledge of it. She too was intoxicated at the time, though not to the extent of A.B. She too pleaded guilty and accepted responsibility.

51In a case such as this the custodial portion of the sentence is mitigated where there is a guilty plea because the admission is a significant step towards the accountability requirement under the YCJA. The custodial portion is also affected by the young person’s role in the offence and therefore accountability. Rehabilitation continues to be paramount in fashioning the youth sentence.

Findings

Findings

• A.B. was actively involved in the swarming of Kenneth Lee. She was aggressive toward him throughout, landing multiple punches on him and hitting him. She would have been aware of her impact on Mr. Lee because of the visual evidence that the swarming left him with quite a bloody face. The nature of the swarming is a significant aggravating factor. A.B.’s role in the swarming is mitigated in two ways. The first is that there is abundant evidence that she was intoxicated at the time. She vomited and collapsed within minutes of leaving the parkette. The second is that A.B. was not aware that the swarming involved a knife. She was not aware Kenneth Lee was knifed or mortally wounded in the swarming. Nonetheless the swarming was a humiliating exercise of power imbalance. He was beset by 8 girls, including A.B. and died from an event in which he could not defend himself. He suffered an undignified death. The swarming seems to have started because some of the group wanted to take Ms. Tong’s alcohol. There was no planning to the event, but it was preceded by the group acting out during its trip southbound on the Spadina Subway line. In that trip the group, including A.B. at times confronted, jostled, assaulted innocent bystanders who were simply taking a subway on a Saturday night before the Christmas holidays. There is a brazen, feral, and immature quality to the group’s behaviour in the hours leading up to the swarming. A.B. has now served 218 days in open custody and 53 days of closed custody. During that time she was strip searched 6 times and held in segregation for 24 hours. She was 13 years old at that time. The defence asks me to credit A.B. to some 486 days (or just more than 16 months) pre-sentence custody on the basis that her closed custody time is credited at the rate of 3:1. The Crown leaves open the weighting for pre-sentence custody, but If A.B.’s pre-sentence custody is credited at a lower rate than the defence ie 2:1 for her closed custody then her overall pre-sentence custody would be 433 days (or just less than 15 months). This is not an exercise in precision, but based on all the evidence before me I would credit A.B. for 15 months of pre-sentence custody. This is adequate to serve the needs of accountability and society’s denunciation of her role in the death of Kenneth Lee. Further incarceration of A.B. for this charge would serve no lawful purpose.

• A.B. has admitted her guilt and taken responsibility for her role in the swarming. In Court before me she apologized for her actions, and the pain she has caused. I find that A.B. has insight into her conduct, which is important in meeting the sentencing goal of accountability. The guilty plea in this case is a significant mitigating factor.

• A.B. has no previous criminal record.

• She was 13 at the time of the offence and now 15. She is quite young.

• A.B. has many needs. Her rehabilitation and re-integration requires significant therapeutic intervention. A.B. is at a delicate stage in her life. With effective help there is reason to be optimistic that she will move into a pro-social adult life. Without help there is no reason to believe that she will resolve her various disorders on her own, despite her supportive mother. The material provided confirms that A.B. is well placed to take the benefit of intervention.

52For these reasons I find that A.B.’s pre-sentence custody is sufficient to satisfy the carceral requirement of accountability in this case. There is nothing to be gained by further custody.

53In the circumstances I find that A.B. will be subjected to an ISSP Order under s. 42(2)(l) for a further 21 months. This will provide the necessary intervention to further the goals of rehabilitation and re-integration. This order will run in conjunction with 21 months of probation, the terms of which are:

• to appear before the Youth Court when required to do so:
• report to a provincial director or designate;
• notify the clerk of youth court or youth worker assigned of any change of address, employment or education;
• remain within Ontario;
• attend school;
• reside with parents;
• no communication with co-accused A.W., M.J., S.C., T. G-V, C.U., J.F., S.S., the witnesses J.B. or Erika Tong.
• maintain counselling and treatment as directed by youth probation or I.S.S.P. worker as directed.
• not to possess weapons.

54There will be ancillary orders:

• 10 year weapons prohibition under s. 51 of the YCJA;
• DNA databanking;
• Under s. 42(2)(s) of the YCJA A.B. may not communicate with any of her co-accused: for the duration of the ISSP Order.

55I thank counsel for their help with this case.