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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Date: November 18, 2020

Court File No.: 19-Y190560

Between:

Her Majesty the Queen

— and —

D.T., a young person

Before: Justice Alex Finlayson

Submissions Respecting Sentencing Heard on: September 8, 2020

Reasons for Judgment Released on: November 18, 2020

Counsel:

• Sarah De Filippis — counsel for the Crown
• Melody Izadi — counsel for the accused D.T.

PART I: NATURE OF THIS JUDGMENT

[1] On various dates in 2019 and 2020, I presided over a Youth Court trial concerning D.T. I found D.T. not guilty of one count of attempt to commit murder, but guilty of one count of aggravated assault.

[2] I heard submissions respecting D.T.'s sentencing on September 8, 2020. Both the Crown and the defence rely on various written material. There are an assessment prepared pursuant to section 34 of the Youth Criminal Justice Act, a pre-sentence report, a victim impact statement, and other documentation before the Court respecting sentencing. Each side made oral submissions. This is my Judgment respecting D.T.'s sentence.

PART II: THE PARTIES' POSITIONS

[3] The Crown's position is that the Court should impose a 9-month custody and supervision order. However, following his arrest, D.T. spent 2 days in pre-trial detention, and then was subject to restrictive bail conditions (ie. house arrest) for 914 days (ie. a little over 2 ½ years).

[4] The Crown asks that D.T.'s pre-trial detention be noted on the record. The Crown is also content that the custody and supervision order be reduced by between 30 and 60 days, for the time D.T. spent under house arrest. The Crown would not oppose the custodial portion of his sentence being served in an open custody facility.

[5] After the period of custody and supervision, the Crown says the Court should impose 14 months of probation. The Crown also proposes various terms and conditions for the community portion of D.T.'s sentence, 35 hours of community service, various ancillary orders, including a 5-year weapons prohibition order, and a DNA order.

[6] The defence's position is that a 4-month custody and supervision order would be appropriate. However, counsel submits that D.T. should not serve any time in custody at all, on account of the time he spent in pre-trial detention, followed by his lengthy house arrest. The defence also raises arguments about Covid-19 as further militating against a custodial sentence in this case.

[7] Therefore, the defence submits that the Court should instead impose probation of two years, which would include 6 months of a curfew, 50 hours of community service and continued counselling. The defence does not take issue with the various other terms and conditions of the sentence suggested by the Crown. Nor does the defence take issue with any of the ancillary orders proposed by the Crown.

PART III: APPLICABLE LEGAL PRINCIPLES

A. General Principles and Canada's Policy With Respect to Young Persons

[8] As Abella J. said in R. v. D.B., 2008 SCC 25, [2008] 2 SCR 3 at ¶ 1, "[y]oung people who commit crimes have historically been treated separately and distinctly from adults. This does not mean that young people are not accountable for the offences they commit. They are decidedly but differently accountable."

[9] Because of their age, young people have "heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability". This presumption warrants the unique approach to punishment in the YCJA. See R. v. D.B. at ¶ 41.

[10] This presumption of diminished moral blameworthiness or culpability is a principle of fundamental justice recognized by section 7 of the Charter of Rights and Freedoms. It is also a legal principle that finds expression in the United Nations Convention on the Rights of the Child. See R. v. D.B. at ¶ 60, 68-69. And it is a principle that was incorporated into text of the YCJA after R. v. D.B., in its preamble.

[11] Other principles recognized in the preamble of the YCJA include that:

(a) Members of society share a responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood;

(b) Communities, families, parents and others concerned with the development of young persons should, through multi-disciplinary approaches, take reasonable steps to prevent youth crime by addressing its underlying causes, to respond to the needs of young persons, and to provide guidance and support to those at risk of committing crimes; and

(c) Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons.

[12] The YCJA's declaration of principle in section 3 sets out Canada's policy with respect to young persons. This policy informs the sentence that I must impose in this case. The germane portions of section 3(1) read:

Policy for Canada with respect to young persons

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

(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.

B. Specific Sentencing Principles

[13] Section 38 of the YCJA sets out the specific sentencing principles that I am to consider and apply. Pursuant to section 38(1), the purpose of sentencing is to hold D.T. accountable for the offence that I have found him guilty of, through the imposition of just sanctions that have meaningful consequences for him, and that promote his rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

[14] Pursuant to section 38(2), I am to determine the sentence in accordance with the principles set out in section 3 that I have highlighted above. In addition:

(a) The sentence must not result in punishment that is greater than that which would be appropriate for an adult 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) I must consider all available sanctions other than custody that are reasonable in the circumstances;

(e) The sentence must be the least restrictive that is capable of holding D.T. accountable through the imposition of just sanctions that have meaningful consequences and that promotes his rehabilitation and reintegration into society, that is the most likely to rehabilitation and reintegrate D.T. into society, and that promotes a sense of responsibility into him and acknowledges the harm done to victims and the community; and

(f) Subject to the proportionality principle and recognizing D.T.'s degree of responsibility, the sentence may also denounce unlawful conduct and deter him from committing offences.

[15] Moreover, pursuant to section 38(2)(e.1), any condition that the Court attaches to D.T.'s sentence may only be imposed if it is necessary to hold D.T. accountable through the imposition of just sanctions that have meaningful consequences and that promotes his rehabilitation and reintegration into society, if D.T. will reasonably be able to comply with the condition, and the condition cannot be used as a substitute for appropriate child protection, mental health or other social measures.

[16] Finally, pursuant to section 38(3), I must take into account a number of factors. Those are: D.T.'s degree of participation in the commission of the offence; the harm done to any victims and whether it was intentional or reasonably foreseeable; any reparation made by D.T. to the victim or the community; the time D.T. has already spent in detention as a result of the offence; any previous findings of guilt; and any other aggravating and mitigating circumstances related to D.T. or the offence that are relevant to the purpose and principles set out in section 38.

C. Specific Statutory Provisions Relating to a Custodial Sentence

[17] Pursuant to section 39(1) of the YCJA, D.T. may not receive a custodial sentence unless one of four circumstances are engaged. One of those is where the young person has committed a violent offence. See section 39(1)(a).

[18] A "violent offence" is defined in section 2 of the YCJA. Among other things, it includes an offence committed by a young person, that includes as an element the causing of bodily harm.

[19] Pursuant to section 39(2), this Court must not impose a custodial sentence unless it has considered all alternatives to custody, raised at the sentencing hearing, that are reasonable in the circumstances, and unless it has determined that there is not a reasonable alternative, or combination of alternatives, that accord with the purpose and principles set out in section 38.

[20] If there is to be a custodial sentence, then pursuant to section 39(8), in determining its length, I must also be guided by the purpose and principles set out in section 38, and I am not to take into account that the supervision portion of the sentence may not be served in custody, nor that the sentence may be reviewed under section 94. Finally, pursuant to section 38(9), I am also required to state in these reasons why a non-custodial sentence is not adequate to achieve the purpose set out in section 38(1).

D. The Available Sentences

[21] Section 42(2) lists the sentences that the Court may impose. The Court may impose more than one sanction, provided that they are not inconsistent with each other. I have considered all of the available sanctions enumerated in the legislation, in light of the principles that I must apply. But based on the submissions, reports and other material filed in respect of sentencing, I have specifically considered sections 42(2)(i) (community service), 42(2)(k) (probation), and 42(2)(n) (a custody and supervision order).

[22] I note that a deferred custody and supervision order is not an available sanction in this case, given that D.T. has caused serious bodily harm to the victim, A.G. See sections 42(2)(p) and 42(5). As such, I am unable to consider this as an alternative to a custody and supervision order.

PART IV: ANALYSIS

A. Whether a Custodial Sentence is Available

[23] I have found D.T. guilty of aggravated assault. Aggravated assault has, as an element of the offence, the causing of bodily harm. See section 268 of the Criminal Code. As I have already found in the judgment following this trial, and as I will summarize again later in this sentencing decision, D.T. not only caused bodily harm to A.G., but significant bodily and other harm. It is open to the Court to impose a custodial sentence upon D.T. under section 39(1)(a) of the YCJA.

[24] Moreover, I note that both counsel agree that a custodial sentence would be appropriate, but for the time that D.T. spent under house arrest. Where they depart is not only as to the length of a potential custodial sentence, but also about the extent to which D.T.'s house arrest is mitigating in this case. The defence says the latter is a significant mitigating factor warranting a non-custodial sentence, where as the Crown takes a more conservative approach.

B. The Circumstances of the Offence

[25] In the trial Judgment dated March 27, 2020, I found that on March 7, 2018, D.T. had lured A.G. out of his home, ostensibly to meet near the area of D.T.'s home. He did this via text message. The purpose of the meeting was supposedly to engage in a drug and gun transaction.

[26] But when A.G. arrived at D.T.'s residence, D.T. texted him, telling him to return home. D.T. claimed that he could not come out to meet A.G. Meanwhile, I found that D.T. had actually left his home already with another person. That person is unknown to the police, but was referred to during the trial as J.

[27] I found that D.T. and J. then encountered A.G. on the street, as he was returning home. I found that after a brief conversation between the three persons, they walked off the street and towards a garage for some privacy. It was there that A.G. was then stabbed twice.

[28] I made findings of fact about how the stabbings occurred. I found that when the three were over by the garage, initially D.T. walked away from A.G. A.G. became suspicious and looked towards J. It was at that point that A.G. was stabbed for the first time by J. Then D.T. returned back towards A.G., and stabbed him the second time.

[29] I specifically found that D.T. stabbed A.G. in the neck on his left side. I found the injuries that A.G. sustained as a result of the attack were serious. They included significant injuries to his neck, to his face and to his inner mouth. A.G. had to undergo surgery.

[30] Photographs of A.G. taken in the hospital revealed a stab mark on the left side of A.G.'s neck, that his neck was closed together with stiches or staples, he had swollen eyes, a cut mark on his lip, stiches around his mouth, and dried blood on his face and nose. Officer Ghazarian, who interviewed A.G. in the hospital soon after this attack occurred, testified that A.G. had difficulty speaking at that point. He also testified that he had a severe cut to the moustache area of his mouth, and a cut inside his mouth.

[31] It is based on those circumstances that I am characterizing this offence as a very serious one. Pursuant to section 38(3), D.T. was an equal participant in the attack itself, and a principal participant in luring A.G. out of his home.

[32] Regarding the harm done to A.G., it was great, and it was intentional. Moreover, A.G. is a vulnerable victim. He suffers from opioid addiction. He testified that he had struggled with addiction for about 3 years at the time of trial.

[33] More particularly, A.G. uses fentanyl, crack cocaine and marijuana. He explained that he had taken methadone on the day of the stabbings itself, but that he had otherwise been using fentanyl every couple of days. Indeed, the very purpose of meeting with D.T. on March 7, 2018, was to pay D.T. the money he owed him for a past drug transaction, and to obtain additional crack cocaine from him.

[34] A.G.'s victim impact statement describes that his life has been "hell" since the stabbing. In it, he describes the injuries he sustained. He told the Court that he thought he was going to die that day. He describes a subsequent PTSD diagnosis, and how that has affected him. He tells the Court that his drug use became worse after the incident.

[35] The Court must make a strong statement of disapproval of D.T.'s conduct. These factors militate heavily in favour of a sentence that includes a period of custody and supervision.

C. The Circumstances of this Young Person

[36] However, the above factors must also be weighed along side D.T.'s circumstances. This is D.T.'s first finding of guilt. That is a mitigating factor.

[37] D.T. has been completely compliant during his release on bail and while under house arrest. That is a factor for which I am prepared to give weight, and which I address in more detail below.

[38] The Court has before it a positive assessment report dated June 19, 2020, prepared pursuant to section 34 of the YCJA, as well as a pre-sentence report dated June 22, 2020. I have considered both reports.

[39] The reports reveal that D.T. currently resides with his mother, his step-father and his brother. Both reports note that D.T. enjoys a close relationship with his mother. D.T. also reported a close relationship with his brother. D.T.'s mother reported that D.T. is compliant with rules and expectations in her home.

[40] Mental health is a significant area of concern for D.T. He also has a learning disability.

[41] In particular, it is reported that D.T. was diagnosed with ADHD and Social Anxiety Disorder in grade 4. Also beginning in grade 4, D.T. began to experience academic struggles. An individualized education plan was created for him in that year. By grade 8, D.T. was diagnosed with a learning disability.

[42] There is a significant history of mental health concerns in D.T.'s family. The author of the section 34 assessment notes this makes him more at risk for developing further mental health problems.

[43] Following his arrest, D.T. experienced a significant decrease in his mood. He took a low dose of anti-depressant medication for a period of time. D.T. underwent a psychiatric assessment at Youthdale in 2018. Dr. Scharf diagnosed D.T. with Major Affective Disorder, Generalized Anxiety Disorder, and Social Anxiety Disorder, with mild to moderate features of Agoraphobia.

[44] Regarding school, D.T. reported that he found high school challenging. Reports from the school indicated some concerns about non-compliant behaviour, swearing and other inappropriate comments, and peer conflict. D.T. explained that he felt nervous and uncomfortable at school, and frequently like he would have a panic attack.

[45] Despite these mental health and academic struggles, D.T. has managed to complete high school since the arrest, and even notwithstanding the school disruptions on account of Covid-19. D.T. has expressed a desire to get a job and wants to study welding.

[46] D.T. has already taken steps in that regard. For example, counsel for the defence tendered an invoice confirming that D.T. has enrolled in a welding course this fall. At the sentencing hearing, the Crown indicated that she would consent to vary D.T.'s bail conditions, to enable D.T. to more easily pursue this goal. By subsequent email dated September 10, 2020, sent to me with the consent of the defence, the Crown confirmed that D.T.'s bail had been varied.

D. D.T.'s Expression of Remorse

[47] I accept that the expression of remorse may be a mitigating factor. Its absence is not an aggravating factor. See R. v. Ellacott, 2017 ONCA 681 ¶ 26.

[48] I do have some concern about D.T.'s expression of remorse in this case. D.T. has minimized both his actions and his degree of participation in the offence. To the author of the section 34 assessment, D.T. denied either having a weapon, or stabbing the victim. He said he was in "the wrong place at the wrong time". He said he was hanging out with the wrong friends. He claimed that his friend appeared to punch the victim, and that he only found out later that the victim had been stabbed. To this I would note that D.T. has not made any reparations to A.G., such as by way of a letter of apology, which the Crown suggested could have been done.

[49] Nevertheless, D.T. said that he takes responsibility for his poor decision of spending time with negative individuals, and for making the bad decision to get involved in the situation. He said that he feels bad for the victim and his family. He also felt badly for his own family. The author of the section 34 assessment report writes that D.T. expressed what appeared to be genuine regret and remorse, and empathy for the victim.

[50] Despite the concerns that I have articulated, I would find that D.T.'s expression of remorse in this case is a mitigating factor, but only somewhat mitigating.

E. The Risk of D.T. Re-offending

[51] D.T.'s behaviour is also linked, in part, to negative peer influence. D.T. reported that beginning in grade 9, he began associating with negative peers. There was a period of time during which he engaged in regular marijuana use, too. Indeed, D.T. reported being slightly under the influence of marijuana at the time of the assault.

[52] While under house arrest, D.T. experienced a significant restriction on his opportunities for social interaction with others. D.T. reported feeling isolated. He also reported that he learned the importance of disassociating himself from negative peers during this time.

[53] D.T. is a psychiatrically vulnerable youth. While the section 34 assessment states that it will be important to monitor his substance use to ensure that there is no relapse in terms of stress, the author of the section 34 assessment also notes that D.T. generally expressed positive and productive goals for the future.

[54] D.T. has been assessed to be at the low risk for continued behavioural difficulties. His needs are in the areas of educational support, substance use and personality/behaviour. However, the report also notes that most of the areas of need are secondary to his mental health struggles.

[55] Finally, the report states that it will be important for D.T. to engage in counselling, that will guide him towards fully taking responsibility for his actions. The report recommends other mental health supports and various other programming.

[56] I note that D.T. has already participated in 10 sessions of counselling through Turning Point, between December 2018 and September 2019. He reported that he found counselling helpful.

F. Case Law Concerning Similar Sentences

[57] Both sides helpfully supplied the Court with a number of decisions that demonstrate examples of youth sentences that have been imposed in cases involving aggravated assaults. Based on my review of these cases (and the summaries of certain other cases referred to therein), the majority do impose custody and supervision orders between 6 and 24 months, followed by probationary terms of different lengths. Two cases imposed a lengthy probationary period only, without any custody or supervision order. The sentence in one of those decisions was overturned by the Ontario Court of Appeal.

[58] These cases are helpful, in that the sentence the Court imposes must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence, committed in similar circumstances. See again section 38(2)(b) of the YCJA.

[59] That said, I do acknowledge that some of the decisions are from other regions. Each case has its own facts. And, it must always be remembered that the sentencing of young persons under the YCJA is an individualized process. See R. v. K.S., 2009 NCLA 46 ¶ 46(i); see also R. v. O. (A.), 2007 ONCA 144 ¶ 43.

[60] It would not be appropriate to impose a particular sentence, just because it falls within a range that appears to emerge from the case law.

(1) Cases in Which the Court Imposed Custody and Supervision Orders, Followed by Probation

[61] In R. v. A.A., 2009 ONCJ 321, A.A. and the victim got into an argument at school, which culminated in A.A. pulling out a knife and stabbing the victim once in the stomach. A.A. then fled the scene.

[62] A.A. was found guilty of aggravated assault and of failing to comply with a recognizance after a trial. The sentencing judge acknowledged that A.A. was a first-time offender and came from a warm, loving family. And while the pre-sentencing report was somewhat positive, the judge also found that A.A. tended to blame others for his problems, and had behavioural issues at school. Furthermore, A.A. was subject to a bail condition that prohibited him from possession weapons at the time of the offence, which he breached. The Court imposed a custody and supervision order of 9 months, and 14 months of probation.

[63] In R. v. C.N., 83 O.R. (3d) 473, a 17 year-old pleaded guilty to aggravated assault. He, along with three of his friends, stalked the victim, also a young person, as he walked on the street in downtown Ottawa. While the three friends pinned him to the ground, C.N. slashed and stabbed him with a box cutter. The victim suffered serious physical injuries and psychological trauma.

[64] C.N. was a first-time offender, with a supportive family. He had community support and the rehabilitation and reintegration processes were well-underway. He had attended counselling, was in college and expressed remorse for his actions.

[65] The sentencing judge imposed a sentence of two years probation. The Ontario Court of Appeal reversed that sentence and substituted it with a sentence of 9-months of custody and supervision (with the custodial portion to be served in open custody), followed by 6 months of probation.

[66] The Court of Appeal concluded that the original sentence was neither proportionate to the seriousness of the offence, nor to C.N.'s degree of responsibility for it. In particular, the Court noted the serious and violent nature of the assault, that a weapon had been used on a person rendered defenceless, that the offence was committed with a group of others, that C.N. was the ringleader, that the injuries the victim suffered were serious, and that C.N. had violated two bail conditions by the time of the sentencing hearing.

[67] In R. v. L.D., L.D. had challenged another person, X.G., to a fight via text message. X.G. agreed to the fight. L.G. then went with four or five others to X.G.'s home, some of whom were wearing ski masks and scarves. X.G.'s father went outside to try to calm the situation. They swarmed the father, punched, kicked and stomped on him, even as he lay defenceless on the ground.

[68] X.G.'s father suffered significant injuries and had permanent scars that were painful to touch. He suffered chronic pain, blurry vision, headaches and numbness in his hands and feet. He was unable to work because of ongoing medical issues. The Court described the factual circumstances surrounding the swarming of and assaultive behaviour towards the father as "extremely aggravating and serious". L.D. and another young person then assaulted X.G., causing him a black eye.

[69] L.D. (and two others, F.L. and C.P.) were found guilty of assault causing bodily harm. L.D. was a first-time offender. He had been in and out of foster care due to his mother's alcohol abuse issues. He suffered from learning difficulties from an early age. He expressed a goal to complete high school and to attend college for a framing program. He also minimized his involvement in the altercation.

[70] At ¶ 70-74, the Court found the aggravating circumstances to be so significant as to require a custodial sentence. The Court found that L.D. was the moving force behind the decision to go to X.G.'s house. The attack was planned and premeditated. The Court concluded that a 6-month custody and supervision order, followed by 15 months of probation, was an appropriate and proportional sentence.

[71] In R. v. M.A.H., 2013 ONCA 235, M.A.H. and his friend robbed another young person of his cell phone. When the victim tried to flee, M.A.H. and his friend chased him, caught up to him, and M.A.H. threw him to the ground. A group of M.A.H.'s friends then began to punch and kick the victim. During the assault, the victim was thrown against a fence and his finger was severed.

[72] M.A.H. was found guilty of robbery and aggravated assault after a trial. The sentencing judge acknowledged that M.A.H.'s pre-sentence report was positive, that he had the support of his family and that he expressed remorse. Nevertheless, the sentencing judge sentenced the offender to a 15-month custody and supervision order, broken down as 5 months secure custody for the aggravated assault, 5 months in open custody for the robbery and then 5 months of community supervision, followed by 12 months of probation. The Court of Appeal dismissed the appeal against sentence.

[73] R. v. W.R., 2015 ONCJ 441 concerned a young person, who was heavily intoxicated, and two others, who lured another young man out of his house to attack him in retaliation for a past robbery. During the attack, the victim's brother tried to intervene. He too was attacked, and the victim ended up stabbed in the torso. The victim required surgery and experienced pain for months afterwards.

[74] W.R. pleaded guilty to assault with a weapon and aggravated assault. Since his arrest, W.R. had found stable employment and family members reported his behaviour had remarkably improved. He did not express remorse for his actions in discussions with the author of the pre-sentence report, however. The Court imposed a custody and supervision order of 6 months, and 24 months probation.

(2) The Case in Which A Court Imposed A Community Disposition Only

[75] By contrast, R. v. S.K., 2009 NLCA 46 is the other case in which 20 months of probation was imposed. This sentence was upheld by the Newfoundland Court of Appeal. In this case, a 17 year old-female struck the victim in the face with a beer bottle, during a house party. S.K. struck the victim as her brother held him in a headlock. The victim suffered serious facial injuries. Even after extensive plastic surgery he remained permanently disfigured.

[76] S.K. was a first-time offender who had pleaded guilty to the aggravated assault. The judge in the Court of first instance found that she had acted impulsively while under the influence of alcohol, that she was amenable to rehabilitation and that she had a supportive family able to monitor her while in the community. The Newfoundland Court of Appeal found that the sentence was not demonstrably unfit in the circumstances. The conditions of the probation order addressed specific underlying causes of the behaviour and promoted rehabilitation.

G. Conclusions Respecting the Sentence

[77] On the one hand, regarding the Crown's proposal that there should be a custody and supervision order of 9 months, followed by probation, D.T. committed a violent assault against A.G., with another person. He was an equal participant in some respects, and a principal participant in another. The injuries that A.G. suffered were serious. A.G. is a vulnerable victim. As such, I do not have difficulty with the notion that a custodial sentence would hold D.T. properly accountable. And the sentence suggested by the Crown would 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.

[78] However, I would also agree with the Court's statement at ¶ 32 of R. v. W.R., in that a custodial sentence for D.T. is not required to assist in his rehabilitation and reintegration back into society. I have a considerable concern that it would have an adverse impact on him. Albeit while under the strict conditions of house arrest, D.T. has disassociated himself from negative peer influences. He reports that he has learned from the past. He has a plan for a productive future, which I understand he has started to implement. So in this case, having regard to the mitigating circumstances, these competing factors and principles can co-exist and be reconciled.

[79] I would therefore conclude that a non-custodial sentence is appropriate in this case.

H. Credit for Pre-Trial Detention and Downes Considerations

[80] D.T. was arrested on March 11, 2018. As set out above, D.T. spent 2 days in pre-trial detention, and so I would give him a credit of 3 days on the period of custody and supervision, at an enhanced rate of 1.5 to 1.

[81] During his house arrest, D.T. was allowed to leave his home only to go to school, or for counselling, or when in the presence of certain named individuals. As I have already said, D.T.'s house arrest remained in place until September 10, 2020. In total therefore, D.T. was subject to house arrest for 914 days.

[82] At ¶ 23-29 of R. v. Downes, 79 O.R. (3d) 321, Rosenberg J.A. discussed the different rationale for applying a credit for time spent in pre-sentence detention, versus time spent on bail, even when one is under stringent conditions such as house arrest.

[83] Rosenberg J.A. began by writing that it is well established that an offender should be given credit for pre-sentence detention. The rationale comes from the Criminal Code and from judicial recognition about the conditions under which it is served. But Rosenberg J.A. said that these rationales do not readily apply to time spent on bail for three reasons.

[84] First, there is no statutory provision that directly addresses the issue. Second, even the most stringent bail conditions, tend to allow the offender to work, attend school and medical appointments, conduct religious worship and tend to personal needs. And third, the impact of the bail conditions cannot be assumed. On the other hand, stringent bail conditions, especially house arrest, represents and infringement of liberty, inconsistent with the presumption of innocence.

[85] At ¶ 33-34, Rosenberg J.A. held that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, there will be variations in its potential impact and the attendant circumstances may dictate that little or no credit should be given for pre-sentence house arrest.

[86] The sentencing judge must state why he or she has decided not to take pre-sentence house arrest into account. The Court should not adopt a rigid formula since sometimes, the terms of the house arrest may impinge very little on the offender's liberty. For others, the accused may find himself confined to a small space, cut off from family and friends and unable to obtain employment.

[87] At ¶ 37, Rosenberg J.A. summarized the applicable principles as follows:

(a) time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor;

(b) as such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence;

(c) the failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle;

(d) the amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply;

(e) the amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest, the stringency of the conditions, the impact on the offender's liberty, and the ability of the offender to carry on normal relationships, employment and activity;

(f) where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[88] As counsel for the defence points out, in R. v. Downes, Mr. Downes received a sentence reduction of 5 months, for the 18 months he spent on house arrest. He received that even though the Court of Appeal noted that little information was provided to the Court as to the impact the bail conditions had on him.

[89] Two of the cases that counsel supplied me with during submissions touch upon how the Court should treat the time that D.T. spent on house arrest. One of the cases that counsel supplied is R. v. A.A., although to be clear, it deals with a credit for pre-sentence detention, as opposed to dealing with the time A.A. spent under house arrest.

[90] In that case, A.A. had spent 255 real days in pre-sentence detention (enhanced to 383 days at the rate of 1.5 to 1). I note that the Crown sought an additional sentence of 6 months of custody and supervision, after crediting A.A. for the time he spent in pre-sentence detention. The sentencing judge imposed an even more onerous sentence of an additional 9 months of custody and supervision, and 14 months of probation.

[91] It is important to note that in R. v. A.A., A.A. had been found guilty of more than one offence. The probation was ordered for the other offence, and so the length of the sentence, although greater than 2 years, conforms with section 42(15) of the YCJA. That said, the length of the sentence in R. v. A.A. would exceed the maximum available sentence in this case before me. See section 42(14) of the YCJA. And the Crown in this case before me only seeks a custody and supervision order of 9 months, subject to the Downes considerations. The Crown does not seek 9 months in addition to any Downes considerations.

[92] The second case is R. v. R.W. In R. v. R.W., the young person spent two days in pre-trial detention, and then was on bail thereafter pending the trial and sentencing. His bail had a house arrest condition, with exceptions for school, employment, counselling or while out with one of his sureties. At the time of sentencing, the bail conditions had been in place for 21 months. The Court gave R.W. only a modest reduction of the period of custody and supervision order. However, it appears that the evidence before the sentencing judge related primarily to an argument that house arrest is more onerous for a teenager, in general, as opposed to something more specific.

[93] In R. v. R.W., the Court referred to R. v. Ijam, 2007 ONCA 597. In R. v. Ijam, the accused had been on bail for 31 months, but only 5 weeks of that included house arrest. The Court of Appeal found that the sentencing judge did not err in declining to give the accused credit for that. In part, it cited the short length of the house arrest as compared to that in Downes and the lack of evidence of hardship or deprivation that the accused occasioned. But in short, the Court of Appeal found that the impact of the house arrest was outweighed by other sentencing considerations.

[94] On that latter point, I have also considered R. v. D.L. (No. 3), 2005 ONCJ 386. While the Court would have found a custody and supervision order to be appropriate in that case, it placed a considerable emphasis on the period of house arrest. The Court found that the reintegration process was already well underway, and that a custodial sentence would have negative effects on the young person. The Court stressed the importance of not undermining the reintegration and rehabilitation principles in the YCJA in so doing.

[95] Similarly, in R. v. S.K., 2003 BCCA 563, the British Columbia Court of Appeal reversed a 6 months custody and supervision order, in part because the young person had already spent 11 months under house arrest, plus approximately 3 months in custody between his sentencing, and the release of the appeal decision. Having regard to the sentencing principles in the YCJA, the Court referred to the young person as having already been "severely sanctioned".

[96] Unlike in R. v. Downes and in R. v. R.W., counsel for the defence did provide this Court with information about the impact of the house arrest on D.T. It was not really contested by the Crown. To the contrary, the Crown concedes that the house arrest is mitigating, just not to the extent advocated for by the defence.

[97] In the result, I will rely on several factors.

[98] First, the period during which D.T. has been subject to house arrest is very long. It is longer than in any of the cases that were supplied to me, or to which I have otherwise referred.

[99] Second, both D.T. and his mother have filed letters with the Court explaining the impact of these restrictions on D.T. D.T. discusses his anxiety, and the feelings of guilt that he has been experiencing. D.T.'s mother wrote that she witnessed her son's mental health go in a "downward spiral", and this scared her. She also says that his self-esteem has been affected greatly.

[100] Counsel for the defence estimated that the police had conducted over 50 bail compliance checks on D.T., many of which occurred late in the evening. The police often came in uniforms and marked police cars. The constant police checks have been embarrassing to D.T. D.T. also feels guilty about the impact of this on his family.

[101] I am mindful that D.T. is a young person. The conditions imposed on him were restrictive, particularly so during his teen years. But it is more than just that, in D.T.'s case, which warrants a more generous application of the principles in R. v. Downes. D.T. is also a vulnerable youth with mental health difficulties. I accept that the restrictive bail has impacted him, not only based on his self-reports, but also as documented in the section 34 assessment report.

[102] D.T. has already spent a long time with severe restrictions on his liberty. He has, in effect, already served an equivalent period to the custodial sentence proposed by the Crown. He has already experienced a meaningful consequence to hold him accountable. Therefore, I agree with the defence that D.T. should serve no further custody. A custodial sentence would disturb the progress that D.T. has made towards rehabilitation and reintegration. The Court wishes to encourage him to complete his education, and to work towards finding employment as a welder, as he has promised he will do. Under the circumstances, I need not address the defence's Covid-19 arguments, nor whether they would militate in favour of a non-custodial sentence in this case.

I. Conditions That Will Form Part of the Sentence

[103] The defence has suggested that D.T. be subject to a curfew for 6 months during his probation. I would not order that. There is nothing particular to this offence (ie. the assault occurred during the afternoon/early evening after school), that suggests a curfew is necessary to achieve a particular goal of sentencing.

[104] I would however order the maximum period of probation, which is 24 months. The probation sentence that I will impose has conditions. Pursuant to section 38(e.1), it is my view that these are necessary to achieve the purpose set out in section 38(1). I am satisfied that D.T. will reasonably be able to comply with them. And no condition is being imposed as a substitute for appropriate child protection, mental health or other social measures.

PART V: SENTENCE

[105] For those reasons, I impose the following sentence upon D.T.:

(a) Probation

D.T. shall be placed on probation for a period of 24 months on the following terms:

(b) Keep the Peace and Be of Good Behaviour

D.T. shall keep the peace and be of good behaviour;

(c) Court Appearances

D.T. shall appear before the youth justice court when required by the court to do so;

(d) Reporting to Probation Officer

D.T. shall report to a probation officer within 72 hours of the release of this decision, and thereafter as required;

(e) Residence

D.T. shall reside with his mother, or at such other address that the provincial director approves of. D.T. shall be amendable to the rules of the home;

(f) Change of Address or Employment

D.T. shall advise the provincial director, the clerk of this court or the youth worker assigned to this case of any change of address, or his place of employment, education or training;

(g) School or Employment

D.T. shall attend school and/or seek and maintain suitable employment;

(h) Weapons Prohibition

D.T. shall not possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as needed for, and while at school or work;

(i) Counselling and Treatment

D.T. shall attend any counselling, assessment or treatment as directed by the provincial director, and he shall sign any releases so that they may monitor his participation;

(j) Substance Use

D.T. shall not consume any illegal drugs, or marijuana. This term is not intended to prevent him from consuming prescription or over the counter medications;

(k) No Contact with Victim

D.T. shall not communicate directly or indirectly with A.G.;

(l) Releases

D.T. shall execute any releases as required by the provincial director so that the provincial director may monitor D.T.'s compliance with any of these terms;

Community Service

(m) Community Service

In addition, D.T. shall complete 50 hours of community service that shall be part of a program approved by the provincial director and for an organization which has agreed to its performance. The community service shall commence no later 30 days after the date of this Order, and it shall be completed at the rate of not less than 5 hours per month;

Weapons Prohibition and DNA

(n) Weapons Prohibition

Pursuant to section 51 of the YCJA, D.T. shall be prohibited from possession any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for 5 years from the date of this Order, except as needed for, and while at school or work;

(o) DNA Order

There shall be an order in the proper form for the taking of DNA samples from D.T. pursuant to section 487.051 of the Criminal Code; and

Release of Section 34 Report

(p) Release of Section 34 Report

The section 34 report shall be released to the provincial director. The provincial director may, in turn, release it to any person or program providing direct rehabilitative or treatment programming to D.T. Any further dissemination is strictly prohibited by the YCJA unless a further court order is sought.

[106] I wish to thank counsel for their assistance with this matter.

Released: November 18, 2020

Signed: Justice Alex Finlayson

Footnotes

[1] It has been suggested that the Ontario Court of Appeal may have retreated from this position. See R. v. Nghiem, 2009 BCCA 170 ¶ 12-16. Even if that is so, it does not change the analysis or the outcome in this case before me.

[2] See the previous footnote.

[3] Similarly, R.W. was found guilty of more than one offence.