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:

Youth Criminal Justice Act Provisions

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED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Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

ONTARIO COURT OF JUSTICE

DATE: 2023 10 18 COURT FILE No.: Toronto Region 20-Y30208

B E T W E E N :

HIS MAJESTY THE KING

— AND —

D.M., a young person

Before: Justice M. Speyer

Heard on: June 8 and 9, July 28 and October 18, 2023 Reasons for Judgment released on: October 18, 2023

Counsel: Leslie Zamojc and Jonathan Smith ............................................... counsel for the Crown Tom Shoniker ............................................................... Counsel for the accused D.M.

SPEYER J.:

[1] On July 4, 2020, D.M. and an adult named Kwame Garwood shot Andre Charles to death. A third adult, Shamar Bailey, was a party to the shooting as the driver of the car used in the offence. Mr. Charles was completely unknown to his killers and no motive has ever been established. This was a senseless, premeditated, cold blooded murder. Following a trial, I found D.M. guilty of first-degree murder, as a co-participant.

[2] During the course of these proceedings, the parties requested that I order a s. 34 psychological and psychiatric report to assist in determining whether the Crown would pursue an adult sentence for D.M. Upon receipt and review of that report, the Crown abandoned its intention to seek an adult sentence. Although I received the report in April of 2022, I did not read it until I had rendered a verdict on this charge. The issue now is the appropriate sentence for D.M., in keeping with the principles of the YCJA.

[3] I begin by recognizing and highlighting the incredible pain this crime has inflicted on Mr. Charles’s family and his community. Mr. Charles’s partner Christine Pinel described the shock of that day and the pain she and their two teenaged sons have endured since the murder. One of Mr. Charles’s sisters was in the vicinity, heard the shots and ran to see the victim on the ground dying. She will be forever haunted by that scene.

[4] It is evident from the victim impact statements that Mr. Charles was a loving and supportive husband and father. He worked. He provided for his family. To quote his brother, Mr. Charles meant a lot to a lot of people. I was especially moved by the victim impact statement of the victim’s oldest son. It is clear that Mr. Charles was a wonderful, attentive and involved parent. His death has created a hole in the life of his family and the community that can never be repaired. I note that his sons have been very successful in school and athletics, notwithstanding this tragedy. It is a testament to Mr. Charles’ enduring love and guidance that his two boys have done so well.

[5] The contrast between the Charles family and D.M.’s family is stark. At the time of the murder, D.M. was barely 16 years old. He had been in the care of the CAS since the age of 10 and had run away from a number of foster homes. At the time, he was living with Kwame Garwood, a much older man who was heavily involved in crime and gun violence.

Childhood conditions that led to offending behaviour:

[6] The s. 34 assessment authored by Dr. Julia Vinik, chronicles the many challenges faced by D.M. from a very early age, including an unstable home environment where he was exposed to substance use, domestic violence, physical abuse, poverty and food insecurity. He grew up in a high crime neighbourhood and in a family where crime was normalized. His parents separated when D.M. was very young, following which his mother became involved in a number of abusive relationships. He frequently observed domestic violence against her and his siblings. His father was largely absent from his life. In D.M.’s words, his upbringing was “scary and sad”. He lacked both physical and emotional safety.

[7] Currently D.M. has a fractious relationship with his mother and has not seen her since 2018, although he occasionally speaks with her by phone. He has no relationship at all with his father. He remains close to his siblings and described his younger brother as his best friend.

[8] When he was 10, D.M. and his younger siblings were taken into the care of the CAS. This did not go well for him, as he struggled emotionally and behaviorally, resulting in being moved through a number of foster placements. During this time there was an unsuccessful attempt to reconnect with his biological father, but this too failed when his father returned D.M. to the care of the CAS. As observed by the authors of the s. 34 report, this continued the pattern of instability and lack of consistent bonds with caregivers. This made D.M. particularly vulnerable to the negative influences of older pro- criminal peers. He was offered a number of community-based programs for at risk and troubled youths, but he did not attend. After running away from a number of foster placements, D.M. couch surfed with older peers who were heavily involved in crime culture, including Kwame Garwood.

[9] Although school was a safer environment for D.M., he struggled there as well, both academically and socially. His learning disability was not diagnosed until 2019, but by that time he was increasingly disinterested in school and by grade 9 he stopped going all together. In February of 2020, he was placed in the Caring and Safe Schools programs but dropped out after making some initial progress.

[10] Socially, D.M. he had very few friends growing up. While in high school, he began to associate with gang related peers. It is reported that he was introduced to them by one of his mother’s partners. As stated in the s. 34 report, by the time of the murder, D.M. was “deeply entrenched in gang life and was not considering any alternative path for his life”. This was partly due to safety concerns if he left the gang, but also because of his pro- criminal values and glorified view of gang life.

[11] At the time of the murder D.M. was living with Kwame Garwood. As previously stated, Mr. Garwood was an older man who was fully involved in a violent, criminal lifestyle. It is evident from the s. 34 report and trial evidence that D.M. was Garwood’s subordinate in all ways. He took his orders from this man. D.M. told the s. 34 report authors, and I accept, that he was afraid of Garwood and now feels used by him. D.M.’s association with Garwood is not surprising given his low self-image, and lack of positive role models.

Progress in pre-trial custody:

[12] D.M. had no criminal record prior to this offence, although he was on a release for firearms related offences, which remain outstanding. He was arrested for this offence on July 24, 2020 and has remained in closed custody at various institutions since then. The s. 34 report and conduct records show that initially, D.M. continued to demonstrate a pro- criminal attitude. While at the Roy McMurtry Youth Centre and Sprucedale, he exhibited adjustment issues and was involved in a number of conflicts with other youths. However, over time and within the highly structured environment provided by the custodial facilities, his attitude started to change for the better. For example, he has obtained his high school diploma with impressive marks, notwithstanding his diagnosed learning disorder. He has participated in employment training programs and has demonstrated leadership qualities by volunteering with younger youths in the facility.

[13] Significantly, while in custody, D.M. has engaged in many hours of counselling and his values appear to have shifted. He has told his counsellors that he wants to leave his past criminal lifestyle and stop associating with criminal peers. He has expressed empathy for others and guilt about the pain he has caused the Charles family and others. He has expressed a strong motivation to move forward on a prosocial path. He is also learning to moderate his anger and aggression. As observed in the s. 34 report, D.M. can be, and often is, cooperative and compliant when given the opportunity to build a trusting relationship with others, as he has with his counsellors. He is learning coping strategies to address his anger issues, such as walking away from situations and not escalating to aggression. This suggests that with continued support, D.M. can be rehabilitated. I accept the conclusion of the s. 34 writers that D.M. is strongly motivated to make positive changes.

[14] According to the authors of the s. 34 report, at the time of the murder, D.M. was likely at a high risk for violence. However, with the positive gains he has made while in a highly structured environment and with the support and counselling he has received, his risk to commit violent offences is now at the moderate level. As outlined in the report, while D.M. has made significant progress in custody, he needs more time to continue his path towards rehabilitation before he can be safely reintegrated into the community. Aggression, anger, low self-esteem, lack of positive role models in the community and substance abuse issues continue to be a concern.

Mental illness:

[15] Psychiatrist Dr. Ana Lusicic has diagnosed D.M. with a number of mental health illnesses as outlined in the s. 34 report. Specifically, he suffers from a major depressive disorder, of moderate severity. This diagnosis was previously made in 2019 and was confirmed at the time of the s. 34 report in April of 2022. He also suffers from post- traumatic stress disorder due to exposure to violence and an unpredictable home environment during childhood and early adolescence. Moreover, the stress of his current detention has led to the development of some psychotic symptoms consistent with attenuated psychosis syndrome. While this is not a full-blown psychotic disorder, he is at increased risk for developing this illness and early intervention is beneficial. D.M. has been placed on medication to address these illnesses and it is reported that he is taking his medication as prescribed.

[16] While in the community, D.M. was using substances quite heavily, especially cannabis, in part to self-medicate for his mental health symptoms, but also to quiet his conscious when engaging in anti-social activities. He told the author of the s. 34 report that on the day of the murder, he had used cannabis, codeine, and alcohol. At the start of his placement in custody, D.M. tried to arrange to have marijuana brought into the institution. As noted by the authors of the s. 34 report, substance abuse continues to be a concern, especially once D.M. is in the community where he will have access to substances.

[17] Given these mental illnesses, D.M. meets the criteria for an Intensive Rehabilitative Custody and Supervision order (hereinafter referred to as IRCS). As outlined in the IRCS Suitability Assessment report, this is a “wraparound” program with dedicated funding that will address all of the issues identified in the s. 34 report. D.M. has been assessed as responding positively to treatment and has agreed to participate in the proposed plan, which is aimed at reducing the risk of recidivism.

[18] Based on the s. 34 report and following the viva voce evidence of Dr. Vinik and youth probation officers Colosimo and Gomes, both the Crown and defence counsel have jointly submitted that I make an IRCS order as part of this sentence.

Issues and Position of the Parties:

[19] The two main issues in this matter are first, the length and structure of the sentence that is appropriate in the circumstances of this offence and those of the young person; and second, how I should treat the time D.M. has spent in pretrial custody.

[20] The Crown’s position is that the appropriate sentence is one of 10 years in addition to the three years already spent in pre-trial custody. Crown counsel argues that a 10-year sentence from date of committal is necessary to reflect the nature, gravity, and moral culpability of the young person and to hold him accountable for his participation. The Crown submits that such a sentence is in keeping with similar sentences imposed in similar circumstances. Further, a 10-year sentence is required to provide the necessary time to rehabilitate D.M. so he can safely be reintegrated into the community. In this regard, the Crown proposes that I order D.M. to serve an additional 6 years in secure custody, followed by 4 years of conditional supervision.

[21] Defence counsel argues that a sentence of less than 10 years is appropriate in the circumstances of this case. He proposes a sentence of 4 years in custody and 6 years under conditional supervision, but with a deduction of 3 years from the custodial portion of the sentence, leaving a further 1 year in custody, followed by 6 years under conditional supervision. This position is based on D.M.’s tragic background, his mental illnesses, his particular vulnerability to negative adult influences should he be placed in an adult correctional facility and the substantial progress he has made while in custody.

General Sentencing principles under the YCJA:

[22] Section 3(a) of the YCJA sets out general principles that govern the youth criminal justice system, some of which apply to sentencing. Specifically, it holds that 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 to in the community to address the circumstances underlying their offending behaviour.

[23] Section 3(b) of the Act directs that the criminal justice system for young persons 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;

[24] Subsection 3(c) states that 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.

[25] Sentencing principles are also contained in section 38 of the Act which states:

• (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.
• (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;
  • (e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if
    • (i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1),
    • (ii) the young person will reasonably be able to comply with the condition, and
    • (iii) the condition is not used as a substitute for appropriate child protection, mental health, or other social measures; and
  • (f) subject to paragraph (c), the sentence may have the following objectives:
    • (i) to denounce unlawful conduct, and
    • (ii) to deter the young person from committing offences.
• (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.

1st Degree Murder Sentencing Provisions:

[26] Section 42 of the YCJA sets out the available sentences for each category of offence. In subsection 42(2), first degree murder is specifically enumerated. It states that when a youth justice court finds a young person guilty of first-degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate.

[27] Thus, sentences for first degree murder are governed by paragraph 42(q)(i) which requires the court to impose a sentence not to exceed 10 years comprised of:

• (A) committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed six years from the date of committal, and
• (B) a placement under conditional supervision to be served in the community in accordance with section 105

IRCS orders:

[28] IRCS orders are governed by subsection 42(2)(r) which states that subject to the conditions stated in subsection (7), the court may make an IRCS order in respect of the young person

• (ii) that is for a specified period that must not exceed, in the case of first-degree murder, ten years from the date of committal, comprising:
  • (A) a committal to intensive rehabilitative custody, to be served continuously, for a period that must not exceed six years from the date of committal, and
  • (B) subject to subsection 104(1) (continuation of custody), a placement under conditional supervision to be served in the community in accordance with section 105

[29] Thus, an IRCS order is meant to run concurrently and for the same length as a sentence for 1st degree murder.

[30] The preconditions of this type of order are set out in subsection 42(7) of the Act. Specifically, the young person must, (1) have been found guilty of a serious violent offence, (2) suffer from a mental illness or disorder, a psychological disorder or an emotional disturbance, (3) a plan of treatment and intensive supervision has been developed and there are reasonable grounds to believe that the plan will reduce the risk of the young person repeating the offence or committing other serious violent offences, and (4) the provincial director has determined that an IRCS program is available and that the young person’s participation in the program is appropriate.

[31] On the basis on the s. 34 report, the IRCS Suitability Assessment report, the viva voce evidence of Dr. Vinik and youth probation officers Colosimo and Gomes, and submissions of counsel, I am satisfied that such an order is available in this case. D.M. suffers from a diagnosed mental illness and has a learning disability. A comprehensive plan has been developed to deliver extensive programming and resources to D.M. to prepare him for eventual release into the community and to support him once in the community. D.M. has been assessed as responding positively to treatment and he has agreed to participate in the proposed plan. I am satisfied that the plan will reduce the risk of violent recidivism.

[32] The only issues that remain are the length of sentence, the structure of the sentence and whether I should deduct any credit for pretrial custody.

Analysis:

[33] Based on the case law provided to me, and submissions of counsel, I am satisfied that a sentence of 10 years in conjunction with a 10-year IRCS order is appropriate in this case. Given D.M.’s progress in pretrial custody, the sentence will be structured as 4 years in secure custody, and a placement under conditional supervision for 6 years.

[34] Dealing first with the length of sentence, as was observed by the Manitoba Court of Appeal in R. v. A.Z.Z., 2013 MBCA 33, in cases of first-degree murder, the sentencing range is narrow and usually calls for the maximum available sentence, less any pretrial custody if deemed appropriate. Given the seriousness of the offence, concepts of proportionality, meaningful consequences and retribution may be given precedence over rehabilitation, resulting in significant custodial sentences.

[35] The concept of accountability was discussed in the case of R. v. W.(M.), 2017 ONCA 22. At para. 100, Justice Epstein held that section 38(1) of the YCJA emphasizes that the purpose of any youth sentence is to hold the young person accountable for his or her offence. This is to be achieved by imposing sanctions that have meaningful consequences for the young person, and that promote his or her rehabilitation and reintegration into society.

[36] At para. 101 Justice Epstein held that the accountability analysis necessarily involves a consideration of proportionality and rehabilitation, with rehabilitation being "subject to" the proportionality principle. Under s. 38(1), consideration must be given to the sentence that has the greatest chance to rehabilitate the young person. Section 39(3) requires consideration of the youth's attitude toward rehabilitation, his or her history with rehabilitative programs and the availability of such programs.

[37] A central concept of the YCJA is that young persons have a lesser maturity than adults. Thus, the analysis of what is a proportionate sentence that holds the young person accountable for their actions must be founded on the principle of diminished moral blameworthiness or culpability.

[38] In R. v. A.O., 2007 ONCA 144, the OCA held that accountability in the context of the YCJA is equivalent to the principle of retribution in the adult sentencing. At para 47 the court concluded that for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, "the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct.

[39] In 2012 the s. 38(2) of YCJA was amended to state that, subject to principles of proportionality, a sentence may serve to denounce the conduct of a young person.

[40] In the case before me, D.M. is guilty of the most serious offence in our society: an unprovoked, planned killing of an innocent member of our community. The murder was carried out in broad daylight, with two firearms, in the middle of a residential neighbourhood. There was no motive for the murder. As observed by Mr. Charles’s sister, it was simply an act of terror designed to terrorize a community.

[41] I found that D.M. was a co-participant in the planning and carrying out of the killing of Andre Charles. Before the killing, D.M. participated by concealing his face and hands and stealing a licence plate to put on the car driven by Bailey, so it could not be traced. He also took steps to conceal his identity during the shooting, by wearing a mask over his face and a hood over his head. D.M. and Garwood carried out the shooting in a cold and deliberate manner. D.M. fired multiple times at the victim, even as he collapsed to the pavement and was crawling away.

[42] Shortly before the killing, D.M. was involved in an incident in which he pulled a gun on a woman and threatened her in the presence of a child. There is evidence that he had access to firearms prior to this killing.

[43] After the shooting, D.M. actively participated in concealing the crime, including disposing of the firearms. He also took steps to change his clothing. He and Garwood and another associate went to a mall to shop for new clothes and shoes. This suggests he had little to no emotional response to the killing of another person.

[44] Given D.M.’s high moral culpability, the seriousness of the offence committed, and the grave consequential harm caused by him, I am satisfied that only a 10-year sentence will suffice to hold D.M. properly accountable for his crime and serve to denounce his conduct.

[45] At this stage of D.M.’s progress towards rehabilitation, additional time in secure custody is required to ensure he continues on this important path. As observed by Dr. Vinik, D.M.’s risk to reoffend violently was likely very high when he committed these offences. In the three years he has been in pretrial detention, this risk has been reduced to the moderate level. Dr. Vinik attributes this progress largely to the highly structured environment of the youth detention facilities where D.M. has been living. She testified that D.M.’s willingness to participate in rehabilitative programs and being away from his previously chaotic criminal lifestyle has been beneficial to reduce his risk of recidivism. However, D.M. requires more time and additional treatment and/or counselling to address his continuing issues with aggression, anger, substance abuse, trust, and self-esteem. He needs to continue to develop pro-social values through mentorship and coaching. While she could not give any definitive timeline for how long D.M. will need before the risk is further reduced, she concluded that given D.M.’s long standing trauma-related symptomology, extensive interventions are required.

[46] Therefore, given the seriousness of the offence, the harm caused by D.M., his moral culpability and the need for continued rehabilitation, I am satisfied that the maximum sentence permitted under the YCJA of 10 years is appropriate.

[47] I will next address whether any time should be deducted from this period for pretrial custody. D.M. has been in custody on this charge since July 24, 2020, or 3 years and 3 months. Under the YCJA, time spent in pretrial custody is not presumptively deducted as in s. 719 of the Criminal Code and R. v. Summers, 2014 SCC 26. Although a youth court judge must take presentence custody into account pursuant to s. 38(3)(d), the judge has the discretion to give no credit or reduced credit for the time spent in pretrial custody: see for example R. v. R.R.J., 2009 BCCA 580 at para. 60, R. v. M.B., 2016 ONCA 760 at para 9.

[48] A youth court justice may choose to not give any credit for pretrial custody where to do so would result in a sentence that is inadequate to meet the objectives of the YCJA. As observed in R. v. M.B., supra, at para 11:

The reasons why a sentencing judge might choose to exercise discretion in this manner are apparent, when considering the sentencing objectives under the YCJA. Youth sentencing judges are mandated under the YCJA to impose the least restrictive sentence capable of achieving the purposes expressed in the YCJA, and to impose the sentence most likely to rehabilitate the young person and reintegrate him or her into society (YCJA, s. 38(1), 38(2)(e)). Requiring youth court judges to give credit for pre-sentence custody could reduce their ability to meet these objectives because, in some instances, deducting pre-sentence custody could lead to a conclusion that the youth sentence would be of insufficient length to hold the youth accountable.

[49] The Crown submits that only an additional 6 years of secure custody followed by 4 years under conditional supervision will achieve the objectives of the YCJA. They point to the s. 34 report which concludes that while D.M. has made some gains, he is still a risk to reoffend violently and will require extensive supports and interventions to achieve rehabilitation. Based on the case law, the factors set out in s. 38(1)(e) of the Act and the s. 34 report, the Crown submits that granting credit for presentence custody would inhibit, rather than promote D.M.’s rehabilitation and would not adequately promote responsibility for his actions or reflect the harm done to the community and the victim’s family.

[50] Defence counsel points out that D.M. is now 19. He will turn 20 next year, at which point he will be subject to the s. 93 of the YCJA which states that upon reaching that age, a youth may be transferred to an adult custodial facility. He points to the evidence of senior youth probation officer Colosimo who testified that delivering the extensive programs available under an IRCS order in an adult jail will be very challenging. He also relies on the evidence of Dr. Vinik who testified that due to D.M.’s mental illness, his personal circumstances and background, placing him in an adult facility with adult criminals could have a negative impact on him.

[51] Defence counsel argues that a 10-year sentence, with 6 years to be served in secure custody, as the Crown wants, would be counterproductive. He argues that in light of D.M.’s progress while in detention, his tragic upbringing, his mental health needs, vulnerabilities, and the goals of rehabilitation and reintegration, the sentence must be structured such that D.M. spends less time in custody, particularly where that custody might be served in an adult facility. Counsel submits that I give D.M. credit for the full three years he has spent in pretrial custody and impose an additional 1 year in custody followed by 6 years under conditional supervision. He submits that such a sentence will achieve the goals of rehabilitation and reintegration while still holding D.M. accountable.

[52] I found the questions posed by the Manitoba Court of Appeal in R. v. A.Z.Z., supra at para 150 to be helpful in determining this issue.

• Will the young person be able to achieve the desired rehabilitation objectives if presentence detention is credited?
• Do the circumstances and consequences of the offence require the maximum sentence be imposed without giving credit for presentence detention?
• Will the youth sentence sufficiently hold the young person accountable (or be a “fit one”) if credit for presentence detention is granted?
• Can the presentence detention be taken into account by adjusting the type or severity of the sentence?
• How long has the youth spent in pretrial detention, what was the reason for the delay and was the young person able to access programs and services while in presentence detention?
• Was there a joint submission and/or extensive negotiations concerning the rehabilitative needs of the young person?

With these questions in mind, I am satisfied that the 10-year sentence can be structured to reduce the custodial portion to 4 years, followed by 6 years under conditional supervision. Based on the progress he has made thus far; I am satisfied that such a sentence will achieve the desired rehabilitation objectives and sufficiently hold D.M. accountable for his actions.

[53] Although I have found that D.M. was an active participant in the crime, he was in all respects Garwood’s subordinate. His subordination to Garwood is tangible on the crime scene videos where D.M. is observed always following behind Garwood. It is also consistent with D.M.’s psyche and character as set out in the s. 34 report. It is clear to me that D.M. was a follower in this terrible tragedy, not the leader. This slightly diminishes his moral culpability.

[54] I have also taken into account the fact that D.M. has made progress while in custody. This is an important factor that should be reflected in the overall sentence. While rehabilitation may take a back seat to concepts of meaningful consequences, accountability, and proportionality, it is still a key sentencing objective.

[55] As Dr. Vinik testified, D.M.’s progress is difficult to measure with any precision, as is the length of time required for his safe reintegration back into the community. I have considered D.M.’s conduct reports while in custody as a factor in assessing how much additional time D.M. should spend in custody. To be clear, I am not using these reports as aggravating factors, but rather as a measure of how D.M. has progressed while in custody and his rehabilitative potential. I note that initially there were a number of serious misconduct reports, including for aggressive behaviour and contraband. However, over time, those incidents have decreased. In the past year, he has been the subject of 3 positive reports where he demonstrated maturity and leadership.

[56] Crown counsel have advocated for an additional 6 years in custody. They rely on the case of R. v. W.(M.), supra, in that case, the young persons were found guilty of first- degree murder and were sentenced as adults. They were not the actual killers but were significantly involved in creating and implementing the plan to kill the victim. On appeal, the Ontario Court of Appeal overturned the adult sentence and imposed a 10-year youth sentence on top of 6 years they had spent in pretrial custody and while serving the adult sentence.

[57] I point out that in R. v. M.(W.), the young persons requested that the maximum youth sentenced be imposed with no credit for pre-appeal custody. Moreover, the court sentenced the second youth in that case, T.F., to a 10-year sentence with 4 years of custody and 6 years under conditional supervision with an IRCS order. T.F. had a very similar background to D.M. and also suffered from mental illness. Like D.M. he achieved his high school degree in custody and was remorseful for his conduct. The court held that in the light of T.F.'s rehabilitative potential, as demonstrated by his progress in custody, a sentence of 10 years with an IRCS order in which the first four years was ordered to be spent in custody and the remainder under conditional supervision was appropriate.

[58] Defence counsel argues that given D.M.’s vulnerability to negative adult influences, any positive gains he has made to date are at risk if he is transferred to an adult facility when he reaches the age of 20 next year. I do not accept this submission as a reason to further reduce the length of secure custody required in this matter. I must consider the circumstances of the offender who is before me today and the seriousness of his conduct. There is a process under the YCJA for transferring youths to an adult facility. There is also a process for this court to review D.M.’s sentence over time. Counsel’s concerns about how D.M. will do in an adult facility should be addressed at those proceedings.

[59] In conclusion, I am satisfied that a 10-year sentence, 4 years of which will be in secure custody and 6 years under conditional supervision, will address the various goals set out in the Act, including rehabilitation. This is the least restrictive sentence that can be imposed, taking into account the aggravating, and mitigating factors. This sentence, in conjunction with a 10-year IRCS order, means that D.M. will have intensive treatment and counselling for the next 10 years, something he responds positively to. While no sentence can ever reduce the pain felt by Mr. Charles’s loved ones, I am satisfied that the sentence imposed in this case serves to hold D.M. accountable for his actions, promote his rehabilitation and reintegration, and thereby contribute to the long-term protection of the public.

[60] Ancillary orders as follows: DNA; s. 52 weapons prohibition; and s. 742.31, re communication with anyone known to the young person to be a member of the Charles family for duration of sentence.

Released: October 18, 2023 Signed: Justice M. Speyer