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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Durham Region
Between:
Her Majesty the Queen
— and —
K.H.
Before: Justice B. Green
Heard on: July 9, 2019
Reasons for Judgment released on: July 16, 2019
Counsel:
- Mr. Morgan, for the Crown
- Mr. Davoudi, for the defendant
Judgment
A. Introduction
1Mr. K.H. pled guilty to two serious violent offences of robbing a convenience store and then a Subway while armed with a loaded restricted gun on the same night. It was conceded that a youth sentence of custody is statutorily available. These offences are punishable by life imprisonment, so the total maximum available sentence is 3 years.
2The Crown requested a sentence of 18 months of secure custody to be followed by 18 months of probation because of the serious nature of the offences, the need to protect the public and to hold this youth fully accountable through meaningful consequences. Counsel for the defence initially sought a sentence of deferred custody to be followed by a period of probation. In the alternative, Counsel urged the Court to impose the most lenient appropriate sentence that reflects the tragic circumstances of this youth's background and the remarkable rehabilitative steps that he has taken since he was arrested and released on bail.
3This is a very challenging sentencing because of the obviously aggravating features of the offences and the uniquely mitigating circumstances of this offender. If Mr. K.H. was an adult, he would undoubtedly be sentenced to a lengthy period of incarceration in the penitentiary. However, he is a youth which permits significantly more flexibility with respect to the appropriate sentence and the guidance of different sentencing principles. The difficulty in this case is achieving a balance between diametrically opposed considerations without overemphasizing any individual factor. There is an overwhelming concern for public safety with gun offences which are scourge in our community and cry out for a custodial sentence. There is also the competing consideration that a sentence of custody will be counter productive for this bright, vulnerable youth who has taken significant strides towards rehabilitation.
4To achieve a just result, it is essential to understand the circumstances of the offence and the offender, the applicable sentencing principles for youths and any sentencing cases with similar offences and similar offenders.
B. Facts and Legal Analysis
i. The robberies and victim impact:
5On the 18th of November at approximately 8:10 p.m., three weeks before Mr. K.H.'s 18th birthday, he walked into a Hasty Market located at 1822 Whites Road in Pickering with his face covered by a bandana and wearing a hoodie. He asked the lone clerk, Mr. Wahidi, for an item and the clerk asked him for identification. Mr. K.H. took out a gun and pointed it at the clerk. Initially, Mr. Wahidi thought that it was a joke but when he saw bullets in the barrel of the gun, he realized that K.H. was serious. Mr. K.H. told the clerk to give him money. Mr. Wahidi did not give it to him immediately so Mr. K.H. came around the counter carrying a small back pack. He handed the back pack to Mr. Wahidi, instructed him to open the cash register and Mr. K.H. placed the cash in the back pack. After taking the money, K.H. asked Mr. Wahidi where the cigarettes were, and he took some. Mr. K.H. left the store on foot. The total loss to the Hasty Market was $1058.53.
6Mr. Wahidi filed a brief victim impact statement. He indicated the following:
"the incident truly shocked me terribly. I never had a gun pointed at me and I feared for my life. After the incident I have become apprehensive about going to the store as I fear the same will happen again. Likewise, my sleep was disturbed for several weeks due to nightmares."
7Mr. Wahidi called the police as soon as Mr. K.H. left the store. Police responded and began an investigation. While the police were at the Hasty Market, they received a second dispatch to respond to another armed robbery in progress at a Subway store a couple of kilometers away at 705 Kingston Road in Pickering. There is no evidence about how K.H got from one store to the next one.
8Ms. Tanveer, a 23-year-old employee of the Subway, was in the back making bread when she heard the doorbell to the store ring. Mr. K.H. went to the cash and called out "hello" aggressively. He was wearing a bandana covering his face and a hoodie. Ms. Tanveer greeted him. K.H. pulled out a gun and pointed it at her stomach. She was not sure if the gun was real, but she did not want to take any chances. Mr. K.H. demanded that she give him all the change that she had in the store. As she opened the cash register, another co-worker fortuitously entered the store. Mr. K.H. tucked the gun under his clothes. This co-worker is an incredibly brave woman. She told Ms. Tanveer to close the till, pushed her into the back-prep area and told her to call the police in another language.
9While Ms. Tanveer called the police, the coworker, Ms. Arora engaged Mr. K.H. in a conversation. She was aware that Mr. K.H. tucked a gun in his pants. She looked around for the keys to the till and told Mr. K.H. that she couldn't find them. He asked her what was taking so long and whether Ms. Tanveer was calling someone. Ms. Arora asked him if he wanted her to check on Ms. Tanveer. He asked Ms. Arora to show him her pockets first. He told Ms. Arora that he sold some drugs and a lady was looking for him with a gun on his head. He said that he needed $2000 and asked Ms. Arora "what can you help me with". Ms. Arora went back into the prep area a second time to see what was taking so long for the police to arrive. She returned to the front counter and stalled Mr. K.H. until police responded to the scene.
10The police arrived at the Subway while Mr. K.H. was still inside. They observed the employee and the male wearing bandana. They drew their firearms. Mr. K.H. looked back at the female employee and then walked outside towards the police. He initially placed his hand on the front of his waist band. The police yelled at him to put his hands up. He complied with police commands and was immediately thrown to the ground and arrested.
11The police recovered a restricted handgun incident to K.H.'s arrest. It was a colt 32 special which was loaded with 6 rounds of ammunition. The serial number on the gun was partially removed. Mr. K.H. was subject to prohibition order at the time of these robberies. There was no evidence called about who this gun belonged to or whether the police were able to determine its origin.
12The Subway employees did not provide victim impact evidence despite several attempts by the Crown to reach out to them.
13An armed robbery with a loaded firearm is inherently violent and incredibly dangerous. Mr. K.H. victimized very vulnerable store clerks who are just trying to make a living and are deserving of special protection from this Court. While this is not a mitigating fact, there is an absence of some aggravating factors. None of the victims were verbally threatened or subjected to any gratuitous violence. The robberies appeared to be impulsive and ill-planned. During the second robbery, Mr. K.H. did not persist with pointing the firearm even though he knew one of the clerks was in the back room. He resorted to pleading with the employee to give him some money to pay off a drug debt.
ii. The circumstances of the offender:
14Mr. K.H has prior convictions as a youth. He was convicted of possession of a weapon in December of 2016 and received a sentence of probation for 12 months with 20 hours of community service work. He completed that community service work. In April of 2017, he was convicted of an armed robbery and threatening. He received 2 months of deferred custody and 18 months of probation and a prohibition order. The Crown advised that this conviction for armed robbery was a street level confrontation. Mr. K.H. was convicted as a party because his co-accused was armed with a knife during a theft.
15Mr. K.H.'s probation order had just expired when he committed this offence. His probation officer advised that, while his reporting habits were not perfect, he was "apologetic about missed appointments""personable""talkative" and "showed strong communication skills with adults". She was concerned about negative peer associations and substance abuse.
16I ordered a section 34 assessment and obtained the benefit of a lengthy, in-depth and informative family court clinic assessment. The report detailed Mr. K.H.'s difficult life experiences, his mental health challenges, his prognosis and future risk, and the remarkable progress he has made in the past 8 months while on house arrest in the care of his paternal grandparents.
17Mr. K.H.'s mother is a loving parent. She immigrated to Canada from Somalia as a child with her family. Although she is Muslim, she is not currently practicing her faith. She met K.H.'s father and they had a volatile relationship. While she was pregnant with K.H. and after he was born, K.H.'s father was physically, emotionally and verbally abusive to his mother. After they separated, he continued to be abusive. K.H.'s father was rarely a part of his life. He was a neglectful absentee parent. When K.H. was in grade 9, in 2016, his father had a child and stopped seeing K.H. completely. He neglected his son for years and then replaced him with a new family. K.H. became more angry, emotional and contemplated suicide. K.H. has recently had more contact with his father but his father has serious outstanding charges and he is facing a significant period of incarceration. He is not in any way a role model for K.H.
18The abandonment of K.H. by his biological father was exacerbated by a similar traumatic experience with his step-father. When K.H. was a small child, his mother met a new partner and there is some indication that K.H. was also exposed to domestic violence during this relationship. From the ages of 4 to 16 years old, his step father was a part of his life and they had a close relationship.
19K.H.'s mother became pregnant three years ago and gave birth to a severely disabled and very ill child who has a short life expectancy. K.H.'s step-father could not handle the situation with their baby and he left the family home. He also abandoned K.H. when he needed a parental figure the most because his mother's time and attention were devoted to his baby sister. K.H. is very angry with his step-father. All these life altering events, the rejection by his biological dad, the abandonment by his step dad, the absence of his mother occurred around the same period of time.
20K.H.'s mom was interviewed, and she was very candid. She feels a great deal of guilt for not being available to her son over the past few years. She was with her daughter at the hospital and K.H. was often left unsupervised at a time in his young life when he desperately needed the attention of a parent. She recognized that her son's behavioural issues became significantly worse recently and she did not have the time or energy to devote to her son.
21It is not surprising that Mr. K.H.'s criminal convictions commenced when his life was in such turmoil. Ms. H. tried her best to assist her son. She called C.A.S., she sought the assistance of family members and she sent her son to stay with her parents, but nothing worked. K.H. was defiant and out of control. He was hurting and lashing out.
22The assessment clinician who prepared the section 34 report summarized K.H.'s background as a "chaotic family life with traumatic loss and disruptions in his key attachments". K.H.'s abandonment by his father and then his step father has resulted in feelings of "anger, sadness, rejection". He has witnessed domestic violence against his mother by both male role models "for much of his life".
23K.H. described himself in very negative terms in the report. He explained that he was a "bad kid" with a temper especially in school. He has been diagnosed with attention deficit and hyperactivity disorder, oppositional defiance disorder and learning disabilities. School and professional records confirm that Mr. K.H. struggled in school and he had fluctuating moods. He was irritable, excitable, unable to focus and explosive. He was eventually expelled from school. Prior to these offences, he displayed "longstanding behaviours of an antisocial nature".
24K.H. described the impact that poverty and the absence of a father figure has had on him. His mother cannot work because she must care for his sister. As he got older, he saw the material things that other students had and the benefits of having a father in the home. He acted out at home, in school and began associating with negative peer groups. He also began to abuse substances. He started with marijuana but began abusing more serious drugs like Xanax and molly and combining his drug abuse with alcohol abuse.
25Mr. K.H related that he committed these two robberies because he was desperate for money to pay off a drug debt and he wanted to help his mother. A friend suggested that he "hit up" a store and he was so heavily under the influence of drugs on that night that he decided to do it. He expressed significant and genuine remorse for his actions and did not try to excuse or minimize his conduct. He acknowledged that he hurt the victims and that what he did was wrong regardless of why he did it or whether he was high at the time.
26Mr. K.H's paternal grandfather and his wife have been in contact with him throughout his life. They took a chance on him and secured his release on a $150000 surety house arrest bail. He was taken away from his mother's home in Pickering and all the negative peer influences and went to live with his grandparents in Peel. The move away from Durham has lead to remarkable changes in the path this young man was following prior to these offences.
27Since K.H. was arrested in November, every professional who dealt with him spoke about him in very positive terms. While spending time in pretrial custody, he cooperated with all assessments. He shared feelings of stress and being overwhelmed by his family situation, his terminally ill sister, financial pressures and abandonment by his father and step father. He was described as "emotional but polite and easy to engage"
28After he went to live with his paternal grandparents, he attended the Fresh Start Program, an expulsion program with Peel District School Board. A social worker with the program described K.H. as "a pure joy to have in the program". He "steers clear of negative issues and focuses on himself and his work". He is grateful for the opportunity and he "followed every recommendation" that the social worker made to him. He has been so successful in the alternative school that his expulsion from the regular school stream has been lifted. He achieved excellent grades, received an "award of excellent attendance" and an "award of community spirit". The social worker who works with him expressed "grave concerns that should K.H. go into custody, he will possibly go backward especially if he is reconnected to his former negative peer group."
29K.H.'s teachers in Peel described him as "always in positive spirits and shows up daily ready to engage and motivated to work." He is one of the older youths in the program and "acts as a leader in the group". When peers talk about inappropriate topics, he redirects them. At school, he has "a polite, loving and warm demeanor". He followed all directions, worked hard and participated fully in the social skills and treatment components of the program. He had a positive connection with all staff and they "really liked him and enjoyed his presence in the program."
30In addition to working with a social worker and teachers, K.H. participated in the concurrent disorder program at the Peel Children's Centre. To date, he attended a few sessions and the clinical coordinator sent a letter of support to the Court. He wrote that K.H. "now realizes that his substance abuse and his connection to substances has been the main source of his problems". K.H. has made the decision to change his friends and the negative influences that pushed him away from his life goals. While in group sessions, he was "fully engaged and committed to the process". He also stepped into a "mentorship role with other youth in the group and shared generally and appropriately the very negative impacts of his substance use." He is welcome to continue with the program, but it is in Peel and K.H. will be returning to Durham to reside with his mother.
31Counsel filed various exhibits of the awards that Mr. K.H has received in the past 8 months, his report card, letters of support and confirmation that he also participated in the Youth Job Connection program at the Brampton Multicultural centre.
32Mr. K.H.'s grandparents acknowledged that he is a troubled young man and that he struggles with "a lot of anger inside". Living with a frustrated teenager under house arrest was not easy for them but, they described him overall as "doing well". He was "respectful, polite, following all court conditions and attending school as required". During the sentencing hearing, they advised me that they had reached the point that they simply could not have Mr. K.H. living with them anymore. K.H.'s grandfather's wife has health issues and K.H.'s presence in the home has been stressful. They asked to be relieved from their obligations as sureties.
33I was very concerned that this change in circumstances would be a significant set back for Mr. K.H. for two reasons. First, considering his issues with male parental figures abandoning him, he may interpret this as another abandonment by his grandfather. Secondly, the only other option was to return him to his mother's care in Pickering. She cannot offer the support and supervision that he needs because of caring for her daughter and he is right back into a neighbourhood with significantly negative peer associations.
34The difference this time will be that, when K.H. lives with his mother, there will be a structured probation order, intensive monitoring and intervention and various available resources. Prior to these offences, the assessment clinician who prepared the section 34 report noted that K.H. and his family "were not involved with community supports prior to his involvement with the criminal justice system". Once he became involved in the criminal justice system, he has engaged in some counselling support but "nothing of an intensive nature". She concluded that "what has been presented thus far depicts a largely antisocial and seemingly high-risk young person. While his past behaviours and the details of his criminal involvement can obviously not be changed, his recent positive changes must also be highlighted." After reviewing all his significant efforts to change and his unique challenges, she concluded that K.H. "will require a great deal of intensive clinical support as well as mentorship to avoid reconnection with his former antisocial peers and lifestyle and to continue his desired path to change".
35A psychiatrist and psychologist were also consulted, and they diagnosed K.H. with a multitude of treatable disorders. They determined that K.H. requires "comprehensive and intensive counselling" to address his issues.
36The family court clinic assessment ultimately recommended that K.H. is a suitable candidate for the Intensive Support and Supervision Program (hereinafter referred to a ISSP ) as an alternative to a custodial sentence. He meets the eligibility criteria because of his mental health diagnoses and he would benefit from the "intensive, clinically focused, community based, individualized program". It was recommended that he participate in the following programs and services:
The diverse reintegration youth program through the community justice alternatives of Durham. This program's objective is to hold youths accountable for reparation of harm done and providing opportunities for the young person;
The reintegration support outreach program through the Murray McKinnon Foundation which assists with lowering the risk of reoffending;
The youth addiction and concurrent disorders services offered by the Centre for Addiction and Mental Health in Toronto;
The transitional youth program at the Pinewood centre;
Connection with a Psychiatrist;
Involvement with the Durham Family Court Clinic's youth gang strategy; and
Continued attendance at an alternative school like the Durham Alternative Secondary School and the collaborative day treatment program to provide additional therapeutic support.
37I asked the Crown to obtain confirmation that K.H. was not only eligible for the ISSP programs but that there is also funding available to ensure his admission into these programs. I was assured that that there will be no issue with available funding.
38K.H. was assessed as a moderate risk for reoffending however, the section 34 report concluded that many of the risk factors are amenable to change. There is significant hope that the very positive changes that K.H. has made to his life already is the beginning of a path towards rehabilitation and becoming a positive contributing member of society.
iii. Available sentences:
39I must consider all available sentencing options that are appropriate in the circumstances. The sentence of deferred custody that was advocated by defence is not available in this case. The Ontario Court of Appeal found in R. v. V.W., 2008 ONCA 55, [2008] O.J. No. 234 at paras. 4 and 37 that:
None of the victims sustained any physical injury. However"serious violent offence" is defined by the YCJA, s. 2(2) to mean "an offence in the commission of which a young person causes or attempts to cause serious bodily harm" and, as I will explain below"serious bodily harm" has been interpreted to include "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant".
And further at para. 37:
The appellant pointed what appeared to be handgun while masked in a dark location, an act obviously intended to instill intimidation and fear in the victim. To make an SVO designation, the judge need not find that the offender actually caused serious bodily harm: the designation can also be based on a finding that the offender attempted to cause serious bodily harm. In my view, any challenge to the allegations of trauma in the victim impact statements lacked an air of reality and there was no prospect that through cross-examination on the victim impact statements the appellant could have avoided a finding of harm or attempted harm sufficient to support an SVO finding.
40Section 42 of the Youth Criminal Justice Act (hereinafter referred to as the YCJA) has been amended since this decision and no longer refers to "serious violent offence". Subsection 42(5) states, in part, that a deferred custody sentence is only available if "the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm". K.H. caused psychological harm to one of the victims and I infer that he attempted to cause, at the very least, psychological harm to the other vulnerable victim by pointing a loaded handgun at her while his face was masked. His conduct was intended to intimidate and terrify the victims into complying with his demands for money.
41Since a deferred custody sentence is not available, the Crown forcefully submitted that the circumstances of the offence demand a denunciatory sentence of custody to achieve a meaningful consequence. The Crown focussed almost entirely on the circumstances of the offence without regard to the circumstances of the offender or other countervailing principles of sentencing.
42Sentencing is a highly individualized process that is dependent on the unique facts of the offence and the offender, but it is also guided by a number of applicable legal principles.
iv. Guiding legal principles:
43The YCJA carefully details the guiding principles that must be relied on when interpreting provisions within the Act:
3 (1) 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
(2) 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).
44These principles in section 3 inform the purposes of sentencing youths that are detailed in section 38 of the YCJA:
38 (1) 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.
Sentencing principles
(2) 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; 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.
Factors to be considered
(3) 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.
45The Crown repeatedly emphasized the need "to protect the public" considering that this offence involved the use of a loaded restricted handgun. There is a difference between denunciation and deterrence. A Court can express condemnation for an offender's conduct without making an example of him or her in order to protect the public. The statutorily identified purpose of protecting the public is not a euphemism for general deterrence. I cannot consider what, if any, impact the sentence I impose on K.H. may have on other like-minded youthful offenders. The Supreme Court of Canada directed in R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941 at paras. 33 and 34, that the principle of general deterrence does not apply to youth sentences:
In the same way, when the statute speaks of "accountability" or requires that "meaningful consequences" be imposed, the language expressly targets the young offender before the court: "ensure that a young person is subject to meaningful consequences" (s. 3(1)(a)(iii)); "accountability that is consistent with the greater dependency of young persons and their reduced level of maturity" (s. 3(1)(b)(ii)); "be meaningful for the individual young person given his or her needs and level of development" (s. 3(1)(c)(iii)). Parliament has made it equally clear in the French version that these principles are offender-centric and not aimed at the general public: e.g., s. 3(1)(a) speaks of "le système de justice pénale pour adolescents vise à prévenir le crime par la suppression des causes sous-jacentes à la criminalité chez les adolescents ... et à assurer la prise de mesures leur offrant des perspectives positives".
In my view, the words of the statute can only support the conclusion that Parliament deliberately excluded general deterrence as a factor of youth sentencing.
46Following this decision, Parliament amended the YCJA to include denunciation and specific deterrence as a relevant sentencing consideration. However, general deterrence was not added and remains excluded as a factor to consider during a youth sentencing. In R. v. H.A.H., [2018] O.J. No. 635 at para 7 (Ont.C.J.), Justice Fairgrieve observed that:
While the YCJA was later amended to include among the applicable sentencing principles a statement that a youth sentence could properly consider the objectives of denouncing the unlawful conduct and deterring the young person from committing offences, it has not been suggested that the Supreme Court's prohibition against taking general deterrence into account is not still binding. Section 50(1) has not been amended, and still excludes from application to the YCJA s. 718(b) of the Criminal Code, which recognizes that deterring "other persons" apart from the offender, is a legitimate objective when sentencing an adult.
47Robbery with a loaded firearm is an extremely serious offence that carries with it the possibility of a life sentence for an adult. Even though it is evident from the facts that K.H. had no intention of using that firearm, it was incredibly dangerous criminal conduct. He could have accidentally or unintentionally shot one of the store clerks, he could have shot himself, the police could have been shot or they could have shot him. K.H. is solely responsible for these offences that he committed back to back without any apparent consideration for the potential harm to these vulnerable employees.
48The Crown urged the Court to consider that there is a need for denunciation and specific deterrence. Most importantly, he submitted that the only means of protecting the public and proportionately holding this youth accountable is by incarcerating him. I disagree for several reasons.
49All alternatives to custody that will accomplish the purposes of sentencing must be considered prior to incarcerating a young person. Section 38(2) of the YCJA states:
Alternatives to custody
(2) 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.
Factors to be considered
(3) 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.
50There is an alternative to incarceration in this case that has been proposed by various mental health professionals that is "reasonable" because:
A very structured probation order with restrictive terms will promote the rehabilitation of this youth whereas a sentence of incarceration may adversely impact his prosocial progress;
While on probation, he will have access to extensive programing which will reinforce respect for societal values and he will be required to take steps to address the harm done to the victims and the community;
The consequences will be meaningful for this young person because of his unique needs and experiences and will involve various community, educational and social agencies;
The least restrictive sentence that will hold him accountable and protect society is a non-custodial sentence because his rehabilitation and integration into a pro-social lifestyle will promote the long-term protection of the public. Incarcerating K.H. may be contrary to the long-term protection of the public;
K.H. has fully acknowledged the harm done and he has done everything possible since his release from custody to establish his potential to be a contributing member of society. He is truly remorseful and fully committed to change;
He has complied with previous non-custodial sentences and he complied fully with his restrictive bail conditions for a period of 8 months. I have some assurance that he can and will comply with a non-custodial sentence.
51I acknowledge that I must also consider parity of sentencing and whether the alternatives to custody being considered by me have been used in respect of young persons for similar offences committed in similar circumstances.
v. Case law:
52I was unable to find a reported decision that involved the sentencing of a similar youth for similar offences.
53The Crown provided four decisions to support the position that a significant custodial sentence is called for considering the serious nature of the offences and the youth's prior record. I did not find that any of these cases aided me with determining the appropriate sentence because they were all factually distinguishable. Each case had either significantly more aggravating facts or the absence of mitigating facts or both. In addition, none of the Courts considered the alternative to custody offered by an ISSP. For example:
R. v. J.S., [2006] O.J. No. 2654 (Ont.C.A.): a youth had been convicted of a violent home invasion committed with a group of youths. The youth court referred to it as "a horrendous crime". When assessing the appropriateness of the sentence, the Court of Appeal noted at para 48 that "the defence at trial did not put forward any alternatives to a custodial sentence".
R. v. A.O., 2007 ONCA 144, [2007] O.J. No. 800 (Ont.C.A.): the accused and another youth plead guilty to committing six well-planned, gratuitously violent and terrifying corner store armed robberies. Four of the store clerks sustained serious knife wounds. Professionals who assessed one of the youths found that the behavioural issues were so deeply ingrained that it would take years to rehabilitate him. While the facts are distinguishable, some of the sentencing principles discussed in this case were helpful.
R. v. M.N., [2013] O.J. No. 2777 (O.C.J.): the youth and another unidentified person committed an armed robbery of a spa with an imitation firearm. A struggle ensued with an employee and the youth was injured. He was identified using DNA analysis of blood at the scene. The youth's DNA was only available because, after the first robbery, he was convicted of another robbery as an adult and sentenced to custody. He was already incarcerated in an adult facility when he was convicted of the youth offence. The Court specifically found that there was no evidence of progress or insight into the serious nature of the youth's offending behaviour.
54Similarly, the cases provided by Counsel were distinguishable and none of them addressed the sentencing option of an ISSP.
55I do not have any sentencing precedent wherein a young person committed robberies of vulnerable store clerks while armed with a loaded handgun and received a non-custodial sentence. Considering the individualized nature of each sentencing hearing, it is challenging to achieve proportionality or parity. Nevertheless, I found the following decisions to be instructive:
R. v. J.S., [2009] O.J. No. 4842 at paras 1, 4 and 5 (Ont.C.A.):
This was a serious crime. The respondent and an accomplice robbed the lone operator of a convenience store late at night. They both wore masks and black clothes. The respondent threatened the store clerk with an imitation firearm, while his companion was in possession of a knife. The youth court justice's disposition of 12 months' probation failed to recognize the seriousness of this offence. It also failed to properly address the requirement that the respondent be held accountable for his actions and that meaningful consequences for the respondent flow from the sentence imposed. As a result, the youth court justice erred in principle and her disposition was unfit.
The Court of Appeal granted the appeal with respect to the sentence of one year of probation but went on to find that:
Crimes of this nature normally call for a significant custodial term. However, the record establishes that the respondent is committed to and has made exceptional rehabilitative progress during the nine months since his sentencing hearing. Throughout, he has enjoyed the steadfast support of his father, who again attended court today with the respondent. In our view, the respondent is fortunate to have that support, which undoubtedly has contributed positively to the turnaround in the respondent's life. The respondent's rehabilitative transformation, the extent of which the Crown did not challenge in this court, merits significant consideration in mitigation.
In all these circumstances, the Crown responsibly proposes that the probationary disposition imposed by the youth court justice be set aside and that a disposition of three months' deferred custody, followed by one year probation, be substituted in its stead. We regard this proposal as eminently reasonable and fit on the facts of this case.
R. v. H.A.H., [2018] O.J. No. 635 at para 32 (O.C.J.): a youth was convicted after trial of possessing a loaded prohibited firearm in a motor vehicle.
Given the sentencing policy dictated by the YCJA, however, the default position is not to assume that serious offences like the ones committed by H.A.H. necessarily warrant a custodial sentence. The opposite is true. As Rosenberg J.A. explained, the statute has in fact enacted a prohibition against making such a leap, regardless of whether one might have justifiably expected a jail term for an adult offender who committed the same offences. General deterrence, to repeat it, is not to be taken into account here.
56A sentence that is unprecedented is not necessarily unprincipled. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 58 explained that:
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:
A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.
57These offences are serious but, the facts are not so aggravating that anything less than a custodial sentence will fail to reflect societal values or fail to protect society. I have to consider this youth's reduced maturity and moral sophistication. In R. v. D.B., 2008 SCC 25, [2008] S.C.J. No. 25 at para. 44, the Supreme Court recognized that the YCJA was designed in part to "to reduce over-reliance on custodial sentences for young offenders".
58I also recognize that I have before me a young black man from an impoverished family who has no father to act as a positive male role model. His biological father rejected him and he is a criminal who is about to be incarcerated. His step father abandoned him. His grandfather loves him but does not have the energy or emotional resources to continue to care for him.
59The Y.C.J.A. encourages sentencing courts to "respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements". K.H. has special requirements because of his mental health issues and his personal circumstances. I have also considered a recent series of decisions that have taken remedial steps to address the overrepresentation of young black people in custody. In R. v. Jackson, 2018 ONSC 2527, [2018] O.J. No. 2136 (Ont.S.C.J.), Justice Nakatsuru eloquently stated:
About making change, let me quote Dr. Martin Luther King Jr.: "Take the first step in faith. You don't have to see the whole staircase, just take the first step."
So it is with sentencing Mr. Jamaal Jackson, a Black man. Too many African Canadians are serving time in jail. Something more needs to be done. In this case, I hope to take a small step in changing that.
He went on to observe at para. 143 that:
The problem of the over-jailing of African Canadians starts with young people. How they come into the criminal justice system. How we treat them. The Honourable Roy McMurtry and Dr. Curling connected racism to an over-representation of young Blacks in the criminal justice system:
"...it is apparent to us that all of the immediate risk factors for violence involving youth can easily arise from the diminished sense of worth that results from being subject to racism, and from the often accurate inference of what that racism means for the hopes of advancing, prospering and having a fair chance in our society. When, as is so often the case, racism is combined with poverty and other sources of serious disadvantage...its central role in the issue that concerns us is all too evident." [emphasis mine]
60Change must start somewhere. It starts with a fair and compassionate justice system that recognizes that sometimes incarceration is counter productive and may not result in a just sentence. A number of jurists have taken steps to ameliorate the over representation of young black people in custody by exploring creative alternatives to lengthy periods of incarceration. Justice Nakatsuru commenced his judgement with the sage words of Dr. Martin Luther King. Dr. King also said that "injustice anywhere is a threat to justice everywhere". The injustice of the continued overrepresentation of young black people in custody is a threat to our fundamental notions of an equitable justice system.
61K.H. is a black teenager struggling with a diminished sense of self worth, a fractured family, overwhelming stress with a dying baby sister, poverty and an over burdened mother. There is however, significant hope for his future based on his recent behaviour. K.H. is standing at a cross-road between a road towards rehabilitation, reparations and redemption and another road towards a life of crime and disappointment. He needs to be held accountable for his crimes and guided along the right path that he already started to take over the past eight months. This sentence will address all the principles of sentencing and, hopefully, will influence Mr. K.H. to continue with the positive steps he has taken and accept the help that he is being offered by various professionals. K.H. does not have to allow his past to define his future.
62As a Youth Court Justice, I have the ability to continue to monitor Mr. K.H.'s progress and provide him with incentives that will also encourage his ongoing commitment to rehabilitation. Unlike an adult sentence, a Youth Court Justice is not functus once the offender has been sentenced. Section 59(1) of the YCJA allows for reviews of sentences that don't involve custody:
Review of youth sentences not involving custody
59 (1) When a youth justice court has imposed a youth sentence in respect of a young person, other than a youth sentence under paragraph 42(2)(n), (o), (q) or (r), the youth justice court shall, on the application of the young person, the young person's parent, the Attorney General or the provincial director, made at any time after six months after the date of the youth sentence or, with leave of a youth justice court judge, at any earlier time, review the youth sentence if the court is satisfied that there are grounds for a review under subsection (2).
Grounds for review
(2) A review of a youth sentence may be made under this section
(a) on the ground that the circumstances that led to the youth sentence have changed materially;
(b) on the ground that the young person in respect of whom the review is to be made is unable to comply with or is experiencing serious difficulty in complying with the terms of the youth sentence;
(c) on the ground that the young person in respect of whom the review is to be made has contravened a condition of an order made under paragraph 42(2)(k) or (l) without reasonable excuse;
(d) on the ground that the terms of the youth sentence are adversely affecting the opportunities available to the young person to obtain services, education or employment; or
(e) on any other ground that the youth justice court considers appropriate.
Progress report
(3) The youth justice court may, before reviewing under this section a youth sentence imposed in respect of a young person, require the provincial director to cause to be prepared, and to submit to the youth justice court, a progress report on the performance of the young person since the youth sentence took effect.
63K.H. will return in front of me in two months for a review with a progress report to assess his compliance and vary the sentence to reflect any change in circumstances. If he is doing well and taking full advantage of this opportunity, I will vary his sentence and gradually loosen his restrictions over the next year. If he chooses to follow another path and fall back into his former ways, the continued restrictions on his liberty will serve to protect the community and hold this youth accountable.
C. Appropriate sentence:
64The imposition of a non-custodial sentence in these circumstances, to quote the Supreme Court of Canada in R. v. D.B., supra, at para 93 "does not make young persons less accountable for serious offences; it makes them differently accountable." Accountability, meaningful consequences and the protection of society are better achieved with this youth for these offences through the intensive rehabilitation program that is offered by the ISSP and making reparations through community service work.
65K.H was in custody from November 18th to November 26th. He served a total of 9 days of pretrial custody which would be the equivalent of 14 days on a 1 for 1.5 credit. This PTC custody will be noted concurrently on both counts. In addition, he was removed from his mother's home and he has been observing house arrest bail conditions for 242 days or 8 months. He successfully attended school, job training and counseling while subject to these conditions, however he expressed significant sadness at being separated from his mother and sister. His liberty was substantially curtailed. It is unquestionably onerous for a young person, particularly a teenager, to follow a house arrest term for such a significant period of time. Accordingly, I will give him credit for a little bit more than 2 months for the 8 months of house arrest. In addition, he was removed from his mother's home and he has been observing house arrest bail conditions for 242 days or 8 months. He successfully attended school, job training and counseling while subject to these conditions, however he expressed significant sadness at being separated from his mother and sister. His liberty was substantially curtailed. It is unquestionably onerous for a young person, particularly a teenager, to follow a house arrest term for such a significant period of time. Accordingly, I will give him credit for a little bit more than 2 months for the 8 months of house arrest. In addition, there will be a period of probation of 24 months with the following terms and conditions:
Keep the peace and be of good behavior;
Appear before the Youth Justice Court when required to do so;
Report in person to a youth worker immediately and after that, at all times and places as directed by the youth worker;
Live at a place approved of by the youth worker and not to move from that address without the prior permission of your youth worker;
You must not reside or work in a place where firearms, imitation firearms, ammunition, restricted weapons, prohibited weapons or explosive substances are kept or stored;
Obey a curfew and be in your place of residence or on the property of your residence between the hours of 5 p.m. to 7 a.m. daily except:
- While in the direct company of your mother or one of your grandparents;
- While in the direct company of an adult approved of in advance in writing by your youth worker;
- for any medical emergency involving you or any member of your immediate family if written justification is provided to your youth worker within 72 hours of any such absence during curfew hours;
- while travelling directly to, directly from and while attending at a place of employment that has been approved of by your youth worker;
- while travelling directly to, directly from and while attending at a place of educational, vocational, counseling or treatment programs that have been approved of by your youth worker;
- while travelling directly to, directly from and while attending at a place that has been approved of by your youth worker to complete your community service hours; or
- with the prior dated written approval of your probation officer to be carried with you at all times while out of your residence during curfew hours
You shall attend and comply with the terms of the Intensive Support and Supervision Program (ISSP) for a minimum of 6 months, and thereafter as directed by the youth worker;
Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by the youth worker including but not limited to all the programs recommended in the family court clinic assessment and complete them to the satisfaction of the youth worker;
You shall sign any release of information forms to enable the youth worker to monitor your attendance at and completion of any assessment, counselling, or rehabilitative programs;
Do not associate or communicate in any way directly or indirectly with Mohammad Wahidi, Zoha Tanveer and Sehej Arora except:
- to write fulsome letters of apology to each of the three victims to the satisfaction of the youth worker. The letters of apology are to be completed within two months of the start date of this probation order; and/or
- to engage in mediation with any of the victims that has been arranged by the youth worker with the consent of the victims;
Do not be within 50 metres of any place where you know the above-named individual(s) to live, work, go to school, or frequent except:
- to engage in mediation with any of the victims that has been arranged by the youth worker with the consent of the victims;
Do not be within 50 metres of the Hasty Market located at 1822 Whites Road in Pickering or the Subway located at 705 Kingston Road in Pickering;
You are to write a letter to the Court prior to your first sentence review detailing all the steps that you have taken since your sentencing to rehabilitate yourself and what you have learned from this experience;
Attend an educational and/or vocational program approved of by the youth worker and complete them to the satisfaction of the youth worker;
Make reasonable efforts to seek and maintain suitable work approved of by the youth worker unless your youth worker determines that it would not be feasible considering the counseling and treatment programs contemplated by the family court clinic assessment;
Do not possess any weapon(s) as defined by the Criminal Code;
Do not buy, possess or consume any unlawful drugs or substances and do not possess any weigh scales, hydroponic growing equipment or other drug paraphernalia;
Do not buy, possess or consume any marijuana; and
You shall perform 240 hours of community service work. The work is to start no later than a week from the start date of this order and shall be completed at a rate of not less than 20 hours per month. You shall complete the work as directed by and to the satisfaction of the youth worker. The community service work may include mentorship programs or leadership programs approved of by the youth worker where you share your experiences with other youths.
66In addition to the ISSP as part of two years of probation, there will be the following ancillary orders:
DNA order on each offence with an execution time of 4 p.m.;
Mandatory weapons prohibition order for a period of 2 years pursuant to subsection 51(1) of the YCJA; and
Forfeiture of all items seized incident to his arrest;
67The Crown has requested a stand-alone restitution order of $1058.53 for the Hasty Market. I was not provided with any information about whether the loss was suffered by Mr. Wahidi or the store itself or whether the losses were covered by insurance. It is unlikely that Mr. K.H. will have the ability to pay restitution any time in the immediate future and, thereafter, any money that he makes will be devoted to supporting himself or his mother. As a result, I decline to make a restitution order.
Released: July 16, 2019
