R. v. S.D., 2026 ONCJ 18

The court hearing this matter directs that the following notices 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IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

CITATION: R. v. S.D., 2026 ONCJ 18

DATE: January 14, 2026

COURT FILE No.: 24-Y3810282; 24-Y3810283

BETWEEN:

HIS MAJESTY THE KING

— AND —

S.D. (a young person)

Before Justice Angela L. McLeod

July 21, 2025

January 9, 2026

Mr. Park and Ms. Dhawan counsel for the Provincial and Federal Crown

Mr. Tsimiklis counsel for the young person

McLeod J.:

OVERVIEW

1This matter (possession of a firearm while prohibited; possession of a prohibited loaded firearm and possession for the purpose of a SCH 1 substance) was not subject to a judicial pretrial. On July 21, 2025, a bare plea, no facts, was entered in a random adult plea court to affect the authoring of a s. 34 YJCA report.

2On the same date the young person plead guilty, and a conviction was registered for a single count of breach of release order. The young person was released on these charges in December 2024 and had a condition to remain in his residence at all times unless in the company of one of his two sureties – his parents. On July 3, 2025, the young person left the residence in his father’s vehicle, alone. I was advised that he “was missing his girlfriend in the middle of the night, took his father’s car and drove to her residence to pick her up and then returned together to his house”.

3He was sentenced by this court to 18 days presentence custody, enhanced to 27 days, as part of a joint submission.

SUMMARY OF THE FACTS

4The following facts were admitted:

(1) In November of 2024, the Barrie Police service was actively investigating the young person for suspected drug trafficking.

(2) He and another young person, A.C., were suspects and were consistently observed together.

(3) Search warrants were authorized for both young person’s residences as well as S.D’s vehicle.

(4) On December 3, 2024, both young people were observed in S.D’s vehicle. Police approached and arrested both. S.D. attempted to hide a satchel bag underneath the vehicle.

(5) The satchel bag contained:

(a) A GLOCK 27 handgun, with 9 rounds in the magazine.

(b) 7 grams of crack cocaine, packaged in 2 separate baggies containing 2.7 and 3.7 grams.

(d) 2 cell phones.

(6) Search of the residence of S.D. resulted in the seizure of:

(a) $17,000 currency in a safe.

(b) 13 rounds of .40 caliber ammunition.

(d) 7 grams of crack cocaine, packaged in 2 separate baggies.

(7) Search of the residence of A.C. resulted in the seizure of:

(a) 26.99 grams of powder cocaine.

(b) 8.5 grams of crystal meth.

(d) A firearm magazine.

(e) 3 rounds of ammunition.

(8) Search of the person of A.C. resulted in the seizure of:

(a) 19.6 grams of powder cocaine.

(9) S.D. was on a term of probation and a weapons prohibition order at the time of his arrest.

CIRCUMSTANCES OF THE YOUNG PERSON:

5The young person has a prior conviction for robbery registered in the months prior to this arrest.

6As noted above, he was convicted for breaching his release order in July of 2025.

7He was held for bail and released, then re-arrested and re-released after his sentence for the breach of release order. He has no presentence custody to his credit to utilize in respect of these convictions.

8His parents are married and together. His mother is a vice-principal. His father works in a bank. They met after immigrating to Canada. S.D. and his family have experienced racial discrimination.

9His father took some 5 months off work post the original arrest in December 2024. He has since returned to work.

10He has an older sister who is 30 years of age, and an older brother (20 yrs.) who is currently in university. He has a younger sister who is 16 years old. All siblings get along well.

11S.D. was a victim of sexual grooming and inappropriate sexual conduct by a trusted adult when he was 13 years old.

12While on probation for robbery, S.D. attended 10 counselling sessions. He reports that the sessions were unhelpful.

13He denies using ‘hard’ drugs. He is financially supported by his parents and reported that his involvement in criminal activities was driven primarily by a desire to obtain material goods, including expensive clothing, jewellery, and watches, in pursuit of what he described as an extravagant lifestyle.

14The young person expressed remorse for his actions and noted that while he was in custody he met several drug addicts and for the first time saw them as people, feeling ashamed for having sold them drugs for profit.

15The young person was 17 years old at the time of his arrest, now 18 years of age.

16The s.34 assessment report is thorough and lengthy. The key findings are summarized as follows:

(1) S.D. is not experiencing acute mental health symptoms such as significant anxiety, depression, or trauma-related distress. He demonstrates emotional detachment, limited insight, and a tendency to minimize the impact of adverse experiences including the death of his grandfather and a grooming incident. He relies on cannabis for emotional regulation and stress relief.

(2) Diagnosed with ADHD and dyslexia. S.D. has struggled with attention, impulse control, and academic achievement but successfully completed his Ontario Secondary School Diploma. He excels in hands-on and applied learning environments but dislikes traditional schooling.

(3) Psychological testing revealed a maladaptive personality configuration dominated by antisocial, turbulent, and histrionic features, as well as impulsivity and self-defeating tendencies. He exhibits pro-criminal attitudes, rationalizes violence , and aligns his self-concept with toughness, status, and material success.

(4) S.D.’s offending began in mid-adolescence, escalating after the death of his grandfather and a shift in peer group. He has a history of aggression, instrumental violence, and repeated breaches of court-ordered conditions. His criminal behaviour is primarily motivated by financial gain, status and peer influence.

(5) Using the Risk-Needs-Responsivity model, S.D. is assessed as moderate to high risk for general and violent reoffending. Dynamic risk factors include entrenched antisocial peer associations, pro-criminal attitudes, impulsivity, substance use, and disengagement from prosocial activities. Protective factors include strong family support and vocational interests.

(6) S.D. meets DSM-5-TR criteria for:

(a) Conduct Disorder, Adolescent-Onset Type, Moderate

(b) Cannabis Use Disorder, Moderate

(d) Specific Learning Disorder with Impairment in Reading (Dyslexia)

(7) S.D. demonstrates both resilience and significant vulnerability, with a risk profile that is conditional and context dependent. With appropriate structure, support, and targeted interventions, there is potential for rehabilitation and a prosocial life trajectory. A coordinated, trauma-informed, and a youth-centered approach is essential for reducing his risk of reoffending and supporting successful reintegration into the community.

(8) If it recommended that a community-based disposition, such as a suspended sentence or ISSP, is recommended over custodial sentencing, which could increase his risk for further criminality and limit rehabilitation opportunities.

(9) Of great concern to this court was his self report of beating his adult cell mate ‘badly’ while incarcerated for the breach of release order. He claimed to have set a trap for the cell mate who he believed was stealing cookies The victim sustained broken ribs and a broken nose. S.D. was not charged and claimed that he knew when to stop. He justified the violence as necessary to establish respect. While in open custody in youth facility he fought with a cell mate who he believed was disrespecting him.

POSITION OF THE PARTIES:

17The provincial crown seeks a custodial sentence of 300 days, 12 months probation, a forfeiture order and a s. 51 order for 2 years. The former co-accused was not released from custody and was ultimately sentenced to presentence custody of 303 days, plus ancillary orders.

18The federal crown seeks a 12-month term of the Intensive Support and Supervision program, s. 42(2)(l) YJCA, and a forfeiture order. The former co-accused was sentenced to ISSP for 12 months for the CDSA offences.

19The defence seeks a global disposition of a 12-month term of the Intensive Support and Supervision program. Alternatively, the defence seeks unspecified length of deferred custody.

20Submissions were scant and no caselaw was provided to this court.

AGGRAVATING AND MITIGATING FACTORS FOR CONSIDERATION

21I find the following to be mitigating on sentence:

(a) The pleas of guilt.

(b) The expression of remorse.

22I find the following to be aggravating on sentence:

(a) The prior finding of guilt for the serious offence of robbery.

(b) The fact that the young person was on probation at the time for that offence.

(d) The fact that the cocaine possessed was crack, or rock.

(e) The fact that S.D. attempted to hide the satchel from police upon arrest.

(f) The fact that the young person possessed $17,000 cash, which I find establishes that he is a mid level trafficker.

(g) The fact that the trafficking operation was supported by the possession of a firearm.

(h) The fact that the drug trafficking was motivated purely by financial gain, not for sustenance or addiction but for greed.

(i) The fact that the firearm was loaded and possessed in a vehicle.

(j) The fact that the young person was in the company of another young person, and by nature of being the driver, was in a superior position to the passenger.

(k) The fact that the young person was in possession of multiple cell phones, again bolstering the conclusion that he is a mid-level trafficker.

(l) He has been assessed as a moderate to high risk to reoffend both generally and violently. This was exemplified in the senseless beating of his adult cell mate while incarcerated and the breach of his release order, both of which were at least while on probation for robbery and also in the case of the latter while on release for the serious charges before this court currently.

SENTENCING PRINCIPLES

23The YCJA Declaration of Principle reads:

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

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(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:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

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

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and

(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and

(d) special considerations apply in respect of proceedings against young persons and, in particular,

(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,

(ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,

(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and

(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

3(2) Act to be liberally construed This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

24The purpose and principles of sentencing young persons is outlined in the YCJA:

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.

25The factors to be considered:

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;

(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.

26Section 39(1) of the YJCA outlines the limited gateway to imposing a custodial sentence:

39(1) Committal to custody

A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

(a) the young person has committed a violent offence;

(b) the young person has previously been found guilty of an offence under section 137 in relation to more than one sentence and, if the court is imposing a sentence for an offence under subsections 145(2) to (5) of the Criminal Code or section 137, the young person caused harm, or a risk of harm, to the safety of the public in committing that offence;

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

39(2) Alternatives to custody

If any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.

39(3) Factors to be considered

In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

(a) the alternatives to custody that are available;

(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and

(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

27Section 42(2)(r) of the YCJA speaks to the ISSP:

(r) subject to subsection (7), make an intensive rehabilitative custody and supervision order in respect of the young person

(i) that is for a specified period that must not exceed

(A) two years from the date of committal, or

(B) if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of committal,

and that orders the young person to be committed into a continuous period of intensive rehabilitative custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder under conditional supervision in the community in accordance with section 105,

ANALYSIS

A. Is custody available?

28The offences are straight indictable.

29A sampling of adult offender sentences for similar firearms offences follows:

(1) In R. v. Baez-Eusebio, 2025 ONSC 5269, Justice Pinto reviewed the following cases:

45 In R. v. Ansah, 2021 ONSC 6339, the offender was 21 at the time of sentencing by Baltman J. He had been only eight months past his 18th birthday at the time of the offence. He was convicted of two offences arising from a police raid: possession of a loaded firearm (a handgun seized on his premises) and possession of 85 grams of fentanyl for trafficking. Ansah had no prior criminal record. An Enhanced Pre-Sentence Report revealed that he had been raised in a socioeconomically disadvantaged, predominantly Black community and had experienced racism, factors which the court treated as significant mitigation. His supportive family ties and community support were also noted. Considering the objectives of denunciation and deterrence (especially given the crisis of gun violence and fentanyl trafficking), the court fixed separate terms and then applied totality. The appropriate sentence for Ansah, after totality adjustment, was 6 years: 2 years for the firearm offence and 4 years for the fentanyl offence, to be served consecutively. The court expressly recognized Ansah's youth and first-offender status, supportive family, and the social-context evidence of racial disadvantage as important mitigating factors while being mindful of the location and handling of the firearm and the profit driven motive for the crime as aggravating factors.

46 In R. v. Thompson 2025 ONSC 2768, the offender was 24 at sentencing and 21 at the time he committed the offences. He pleaded guilty before Stribopoulos J. to three charges: trafficking in cocaine, possession of cocaine for trafficking, and possession of a loaded restricted firearm. Police evidence at arrest showed that over three controlled buys, he sold a total of about 10.44 grams of cocaine, and a search of his residence uncovered 124.76 grams of cocaine, along with tablets and drug paraphernalia. The handgun (a Glock 27.40 cal.) with ammunition was found inside his bedroom. Thompson, who had no criminal record, was Black, came from a supportive family, and had stable employment, and presented as remorseful. The court was guided by the unique circumstances and considerations in sentencing youthful first offenders outlined in R. v. Habib 2024 ONCA 830, 99 C.R. (7th) 110. Having addressed both the firearms and drug aspects, the court settled on a global sentence of 30 months' imprisonment. Stribopoulos J. explicitly noted Thompson's youth, first-offender status, guilty plea, and strict bail conditions as mitigating factors balanced against the aggravating factors surrounding his offences, including his possession of a large quantity of cocaine, his online advertising, and selling of the substance to an undercover police officer, and the possession of the loaded firearm.

47 In R. v. Barreira 2024 ONSC 4682, Stribopoulos J. sentenced an offender following a trial for possession of a firearm without a license, possession of a restricted firearm together with accessible ammunition without authorization, and possession of 16.5 g of cocaine. The offender was 38 years old at the time of sentencing, 34 at the time of the offences with an extensive criminal record, but one that ended when he was 23 years old. He had three children and one on the way, was in a new relationship, and had various health issues. Stribopoulos J. found that the appropriate sentence was five years but credited the offender for restrictive bail conditions and pre-sentence custody such that the sentence was 35 months.

48 In R. v. Mitchell 2025 ONSC 2695, the offender was 29 when the offences occurred and 32 at the time of sentencing before Nishikawa J. He was convicted of multiple offences: Counts 1 — 5 were firearm offences (unlicensed possession of a prohibited Glock handgun and related devices), Count 6 was breach of a weapons prohibition order, and Counts 7-9 were drug offences (312.67 g of cocaine for trafficking, 2.67 g of fentanyl, and possession of the proceeds of crime). The handgun was loaded and found under the driver's seat of Mitchell's car. At the time, he was subject to a s. 110 order banning weapons. Mitchell had no prior criminal record. A pre-sentence report and references described him as a devoted father with a loving extended family. He grew up with ADHD and overcame significant trauma (his mother died when he was 21), factors acknowledged as part of his life history. Letters of support portrayed him as mature, remorseful, and committed to making positive changes. The court gave Mitchell a total sentence of 4 years and 7 months' imprisonment. It was apportioned as 32 months for Counts 1-5 (firearm offences), to be served concurrently with each other; 5 months for Count 6 (breach), to be served consecutively to Counts 1-9; and 18 months for Counts 7-9 (drug and proceeds offences), concurrent with each other but consecutive to Counts 1-6. Mitchell's youth and lack of record, his supportive family environment, and the harsh conditions in custody (as evidenced by the lengthy credit granted) were considered mitigating. The court noted that consecutive sentences for firearm offences and breach were necessary under public safety principles. Still, it adjusted the total sentence downward in recognition of his relatively limited culpability and good prospects, while keeping in mind the aggravating factors in this case: the improperly stored and unlawfully processed semi-automatic handgun while Mitchell was under a weapons prohibition order.

49 R. v. Griffiths 2019 ONSC 358, affirmed 2021 ONCA 302, is a factually similar decision to the case at bar. Griffiths was 22 at the time of the offences. He was convicted after trial of possession of a loaded prohibited firearm, possession of cocaine and crack cocaine for trafficking, breach of probation, and breach of a lifetime firearms prohibition. Police observed a hand-to-hand drug sale near a schoolyard. On a different day, after he left a meeting at the John Howard Society, officers arrested Griffiths in a laneway. They removed a handgun from his waistband that had a round chambered and 11 in the magazine. They found 34.29 g of crack and powder cocaine and $440 cash in his satchel. The sentence reflected denunciation and deterrence for guns-and-drugs: four years for the firearm plus one year consecutive for the drug-trafficking offences. For the breach offences, the court imposed one year consecutive for breaching the firearms prohibition order and six months for the probation breach concurrent to keep totality at six years. The global sentence was six years, with 22 months' pre-sentence custody credit (Summers) leaving four years and two months to serve, with ancillary orders.

50 In R. v. Garcia-Reeleder 2025 ONSC 4336, the offender plead guilty to five offences: possession of a loaded restricted firearm, possession of a prohibited device (a fire-selector/"auto sear"), possession of cocaine for trafficking (P4P), possession of a firearm while prohibited, and dangerous operation of a conveyance. While bound by a prior release order that prohibited him from possessing weapons, he fled a traffic stop, made a U-turn, ran a red light, crashed, and ran from the scene with his passenger, leading to a foot pursuit and arrest. Police found a Glock 26 in his pant leg loaded with 32 rounds in the magazine and one in the chamber; the pistol had an auto-sear that made it fully automatic. Nearby, officers recovered a blue bag containing a second loaded magazine and drug-trafficking paraphernalia, and a search of the vehicle yielded $33,260 and 165.4 g of powdered cocaine. Garcia-Reeleder admitted possession for the purpose of trafficking. He was 24 at sentencing. The court accepted that he had no criminal record at the time of these offences, and noted his background: a supportive family; a father with a Master of Science who was working on a PhD; and his completion of high-school credits while in custody. He had left school after Grade 11 following his father's death; he was single and had no children. The court imposed a global sentence of five years' imprisonment, apportioned as: two years for the s. 95(1) offence; one year consecutive for the prohibited device; one year consecutive for P4P cocaine; one year consecutive for possession while prohibited; and six months concurrent for the dangerous-operation count.

30Additionally, Justice Pinto referenced the overarching principles for consideration in sentencing gun and drug cases:

62 I adopt the comment of Nishikawa J. in Mitchell :

28The Supreme Court of Canada has observed that s. 95(1) of the Criminal Code casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82, aff'g 2013 ONCA 677, 117 O.R. (3d) 401. In Nur, the Supreme Court upheld a 40-month sentence in relation to a 19-year-old first offender for one count of unlawful possession of a firearm under s. 95(1).

29The Ontario Court of Appeal has held that "[m]ost s. 95 offences will attract a penitentiary term.": R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19. For individuals who bring guns into public spaces, a sentence of greater than three years is generally imposed: R. v. Mohaidin, 2021 ONCA 122, 2021 CarswellOnt 2447; R. v. Camara, 2019 ONSC 115, 2019 CarswellOnt 2202, aff'd 2021 ONCA 79, 400 C.C.C. (3d) 490.

30Handguns are a menace to society. When located with drugs, they are properly seen as tools of the trade: R. v. St. Clair, 2018 ONSC 7028, 2018 CarswellOnt 19731, at para. 47. As the Court of Appeal stated in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 68:

Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder.... A person who carries a concealed, loaded handgun in public undermines the community's sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society. [Citations omitted.]

31I find that were S.D. an adult he would likely receive a sentence greater than 2 years custody in relation to the firearms offences. As such, custody is an available sentence pursuant to s.39(1)( c) .

32If I am wrong in this conclusion, I rely upon the decision of R. v S.G., 2023 BCPC 278 wherein Justice Sidhu wrote:

38 Section 39(1)(d) states:

39 (1) A youth justice court shall not commit a young person to custody under section 42... unless

39 The application of s. 39(1)(d) is a two-stage process. At the first stage, a determination must be made as to whether the circumstances of the offence are aggravating. At the second stage, a determination is to be made as to whether, in those circumstances, the imposition of a non-custodial sentence would be inconsistent with the purpose and principles of s. 38.

40 I have been provided with authorities by the Crown, which include several cases where the possession of a firearm by a young person constituted an exceptional case. Cases provided by the Crown include: R. v. R.E.W., [2006] OJ No. 265; R. v. T.C. 2012 ONCJ 849; R. v. T.D.M, 2015 SKPC 147; and R. v. D.T. 2018 ONCJ 998. S.G. relies on the case of R. v. Angelov 2013 ONCJ 117.

41 I have also reviewed R. v. H.M. 2019 ONCJ 790 and R. v. S.T. 2009 BCCA 274.

42 R.E.W. was one of the earlier cases which looked at the application and interpretation of s. 39(1)(d). In that case, the young person was convicted of being an accessory after the fact to a very gruesome murder. In sentencing the young person to a jail sentence, the youth court judge held that the nature of the crime and the substantial involvement of the young person in its commission satisfied the condition set out in s. 39(1)(d). A custodial sentence was imposed. The young person appealed the sentence and argued that the youth court had erred in its application of s. 39(1)(d).

43 The Ontario Court of Appeal took the opportunity to clarify the scope of s. 39(1)(d). The court held that this section was to be given a narrow interpretation so as not to undermine Parliament's intention to move away from the broad and discretionary regime in the Young Offenders Act to a more structured approach under the YCJA. At paragraphs 39 and 40, the court stated:

39There are two primary reasons why para. (d) of s. 39(1) should similarly be given a narrow interpretation. First, paras. (a)û(c) of s. 39(1) already encompass the overwhelming majority of cases where custody would be expected as a reasonable outcome. Paragraph (a) applies where the young person has committed a "violent offence" now interpreted in R. v. C.D.; R. v. C.D.K, supra, as "an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm"... Paragraphs (b) and (c) focus on the young person's prior history. Paragraph (b) applies to the young person who has failed to comply with non-custodial sentences. Paragraph (c) applies to the offender with a serious criminal history, indicating "a pattern of findings of guilt". Section 39(1)(d) acts as something of a residual category and should not be interpreted so as to render the limits implicit in the other parts of subsection (1) ineffectual...

40Second, s. 39(1)(d) is focused solely on the circumstances of the offence and not the character or history of the offender. See R. v. J.E.C., 2004 BCSC 1341, [2004] B.C.J. No. 2244... at para. 63. The circumstances of the offence must be so aggravating that nothing less than custody will vindicate the purpose and principles set out in s. 38. The YCJA is generally focused on the best interests of the young person and s. 38, in particular, encompasses the least restrictive measure and last resort principles. Section 38 also requires the court to take into account the principles set out in s. 3 which have rehabilitation as a prime focus.

44 The court further held that s. 39(1)(d), the exceptional case gateway, could only be used in the rarest of cases, where the circumstances of the offence were so extreme that anything less than custody would not reflect societal values. The court found that an example of an exceptional case was where the community was shocked by the circumstances of the offence (at para. 43).

45 The Ontario Court of Appeal agreed with the youth court sentencing judge that custody under s. 39(1)(d) was available and upheld the sentence.

46 R.E.W. was considered by our Court of Appeal in R. v. S.T. In S.T. , the young person was convicted of theft over $5,000 and arson after he drove a stolen pickup truck while intoxicated. Taking into consideration the young person's inability to comply with an undertaking and the nature of the offence, which the youth court judge characterized as a horrendous property crime, the young person was sentenced to a custodial sentence. S.T. appealed his sentence and argued that the preconditions in s. 39(1)(b) or (d), allowing for a custodial sentence, had not been satisfied.

47 The appeal court held that while s. 39(2), which required a judge to consider all other alternatives to custody, did not expressly referred to s. 39(1)(d); a judge sentencing a young person under s. 39(1)(d) was still required to consider all available sanctions other than custody reasonable in the circumstances by application of s. 38(2).

48 In S.T. , the Crown relied on R.E.W. It submitted that the focus of s. 39(1)(d) was on the nature of the offence, not the young person's circumstances or antecedents. At paragraph 46, the court held:

46While I agree with the basic premise of those remarks, I would frame the analysis differently. As I read s. 39(1)(d), in "exceptional cases" the aggravating circumstances of the offence render a non-custodial sentence inconsistent with the purpose and principles of s. 38 because factors such as proportionality, responsibility and rehabilitation demand a custodial sentence. That determination will necessarily involve an assessment of the young person's circumstances and background. However, in the final analysis under s.39(1)(d) the aggravating circumstances ultimately outweigh those "other relevant considerations" and, in that sense, render them irrelevant in the resulting imposition of a custodial sentence.

49 In conclusion, while the Court of Appeal agreed that the requirements in s. 39(1)(b) had not been met, it concluded that custody was justified under s. 39(1)(d), as the case was exceptional and the circumstances of the offence were aggravated.

50 There are a number of cases in which s. 39(1)(d) was held to apply to situations where young persons were found in possession of firearms.

51 In R. v. T.C., the 13-year-old young person made a video of himself handling an unloaded handgun while in his residence. The young person also made a second video featuring him and his 17-year-old cousin, where they were smiling while posing with and pointing the handgun. The young persons racked and discharged the unloaded firearm and uttered threatening street jargon.

52 The court acknowledged that while the possession of the handgun did not automatically result in a custodial sentence, that generally, circumstances in which a young person possessed a firearm, even unloaded, were aggravated and that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles of sentencing under s. 38. The court sentenced the young person to a six-month deferred custody and supervision order.

53 In R. v. T.D.M., in sentencing the young person, the court found that the possession of a loaded firearm constituted an exceptional case with aggravated circumstances as per s. 39(1)(d). The 16-year-old young person was stopped by the police in downtown Saskatoon in the early morning hours. He was in possession of a backpack, which, upon search, contained a sawed-off 22-calibre rifle. The firearm was unloaded, but three rounds of ammunition were located in the clothing of the young person and the backpack. The young person told the police that he was homeless and that he had agreed to transport the gun for an adult in exchange for money.

54 At the time of sentencing, the young person was living with his father at the Big River First Nation. It was accepted that many of the circumstances which led to the young person's offending arose due to his lack of supports and supervision in Saskatoon. While the young person still had some difficulties, the Pre-Sentence Report was positive and indicated that he had made strides and was engaged in prosocial activities.

55 The court held that the circumstances were aggravated and so shocking as to threaten the widely shared community values. The court held that the gateway to custody under s. 39(1)(d) was open and imposed a custodial sentence.

56 The case of R. v. D.T. reached a similar conclusion. In D.T. , the police conducted a search warrant at the young person's residence he shared with his mother. The police located a loaded 12-guage sawed-off shotgun and a large amount of ammunition, including 33 rounds of 12-guage shotgun shells. There was no explanation as to how the young person obtained possession of the firearm and for what purpose he possessed it.

57 The young person was 17 years of age at the time of the offence and did not have a criminal record. He grew up in an unstable environment where he witnessed and was victim to violence in the home. He also struggled academically and behaviourally at school. Despite those difficulties, the young person had considerable potential. He had graduated from high school, was gainfully employed, and had future goals.

58 The court held that the case was an exceptional case within s. 39(1)(d) and that a non-custodial disposition was inconsistent with the purpose and principles of sentencing. Taking into account the aggravating and mitigating factors, the court imposed a six-month deferred custody and supervision order, followed by probation.

59 In R. v. H.M., the 16-year-old young person was found in possession of a loaded handgun tucked into the waistband of his pants.

60 H.M. had a challenging childhood and suffered from cognitive defects and possibly ADHD. However, he was motivated to complete high school and had engaged in counselling.

61 The Crown sought a nine- to 12-month sentence of imprisonment. The young person submitted that an absolute or conditional discharge was appropriate due to Charter breach findings by the court.

62 The court held that s. 39(1)(d) applied, as the case was exceptional and the circumstances aggravated. The court noted that the offence was serious, and although the gun was not in a public place, the young person was in a vehicle with three other individuals in a parking garage of a downtown Toronto apartment. The court found that there was no reason for the young person to possess the loaded firearm other than to cause harm or threaten others. The circumstances of the possession of loaded handgun was shocking and threatened widely shared community values. The court held that neither an absolute discharge, conditional discharge, nor a lesser sanction was appropriate and consistent with the purpose and principles of sentencing. The court imposed a six-month deferred custody and supervision order, followed by probation.

63 Finally, in R. v. J.M., the young person was found in possession of loaded handgun while he was in a vehicle. The handgun had the serial number scratched off and the young person had sandpaper in his possession. He told the police that he had received the gun from a friend a few days earlier for protection. He reported that he had been the target of an attempted shooting.

64 The young person was 17 years of age, complied on bail, and had no criminal record. Although he struggled academically and behaviourally in school, he had the support of his family and prospects for rehabilitation.

65 The court held that the possession of the gun was planned and deliberate and had serious potential for harm. The court found that the case was exceptional and that the circumstances were aggravating. He was sentenced to eight months of open custody and four months of community supervision.

33I find that custody is available pursuant to s.39(1)(d) YCJA in relation to the firearms offences.

34With respect to the CDSA offence, I find that an adult would not likely receive a sentence of two years or more custody, and as such custody is not an available sentence herein pursuant to s.39(1)( c).

35With respect to the CDSA offence, I find that the circumstances of the offence are so aggravating that nothing less than custody will vindicate the purpose and principles set out in s. 38 YCJA. Mid-level trafficking, with loaded firearm enforcement, in a moving vehicle, with a youth passenger, is an exceptional case within s. 39(1)(d) YCJA and a non-custodial sentence is inconsistent with the purpose and principles of sentencing therein.

36I find that custody is available pursuant to s. 39(1)(d) of the YCJA.

B. Is custody appropriate?

37I find that the offences are serious and S.D.’s degree of responsibility is high. His trafficking is indicative of a mid-level. He had $17,000 cash, multiple cell phones and a loaded firearm for use. He was the driver of the vehicle, the second youth the passenger. He and his co-accused, seen together consistently, had a variety of narcotics available to them to sell, packaged and ready to go.

38The former co-accused received a custodial sentence for similar offences.

39I find that an ISSP order would not:

(1) Hold the young person accountable, nor be proportionate to the seriousness of the offences and his degree of responsibility.

(2) Uphold societies values.

(3) Result in meaningful consequences to this young person, who has expressed a lack of impact and appreciation for counselling to date, been incarcerated and continued to engage in violence, breached probation, prohibition and release orders.

40I find that the provincial Crown’s position of a 10-month custodial sentence is in fact the least restrictive sentence possible to meet the principles of sentencing identified in the YJCA.

41I am concerned about the young person complying with a non-custodial sentence given his breach of release conditions while on release for these offences and his continued offending behaviour while in both youth and adult facilities. This is coupled by the lack of impact from the 10 counselling sessions in 2024 and the discontinued involvement in therapeutic supports since that time, despite having the familial resources to obtain same. While I appreciate that he has strong familial supports, I am mindful that each of his offences have occurred while living at home and under his parents care. Moreover, while he enjoys positive sibling relationships, he put those in great jeopardy by maintaining a firearm, ammunition and narcotics in the same residence.

42I find that the federal Crown’s position of a 12-month ISSP order is insufficient to meet the purpose and principles of sentencing identified in the YCJA, nor would it assist in the rehabilitation or reintegration of the young person given his diagnosis of ADHD, dyslexia, cannabis use disorder. While it is possible that the ISSP order might assist with the conduct disorder diagnosis, the benefit is outweighed by the other sentencing purposes and principles. A term of probation with a counselling condition can assist with rehabilitation.

43Sentencing is an individualized process. While I am aware that the former co-accused was sentenced for the CDSA offence to an ISSP order, I am not aware of his personal circumstances, prior convictions, if any, rehabilitative efforts etc.

CONCLUSION

44On each firearm count a sentence of 300 days custody, to be served concurrently, is imposed.

45On the count of possession for the purpose of trafficking, a sentence of 90 days custody, to be served consecutively to the firearms sentence, is imposed.

46The total custodial sentence is 390 days, to be served as 260 days in custody and 130 days in community supervision.

47This is to be followed by 18 months probation. A s.51 order for 2 years is also imposed.

Released: January 14, 2026.

Signed: Justice Angela L. McLeod