WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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

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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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

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

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

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 11 07 COURT FILE No.: Brampton 23-Y3110738-03

BETWEEN:

HIS MAJESTY THE KING

— AND —

E.R., a young person

Before: Justice P.T. O’Marra

Heard on: April 22, September 27, and November 7, 2024 Oral Reasons for Judgment released on: November 7, 2024

Counsel: Aimee Gauthier................................................................................... counsel for the Crown Jasmine Mann....................................................................... counsel for the accused E.R.

P.T. O’Marra, J.:

Introduction

[1] On April 22, 2024, E.R. pleaded guilty to robbery, contrary to section 344(1)(a) of the Criminal Code of Canada (the “Code”). I ordered a psychological assessment report pursuant to section 34 of the Youth Criminal Justice Act (“the YCJA”). After I heard sentencing submissions on September 27, 2024, I reserved my judgment on the sentence and adjourned the matter to November 7, 2024 (today).

[2] These are the reasons for my decision regarding the appropriate sentence for this young person.

The Offence

[3] The facts that supported the plea are as follows:

(1) On October 10, 2023, at approximately 2:15 a.m., E.R. and two co-accused attended […] Drive, Brampton and broke into the residence by smashing through the front door to gain access.

(2) They wore hoodies to cover their identities and carried rods.

(3) N.T., R.S.T., A.K.T. and B.K.T. occupied the residence and were asleep at the time.

(4) Once inside, the three accused demanded the car keys; however, they were unsuccessful and left.

(5) They fled in a stolen black Audi Q7. A fourth individual drove the fleeing car.

(6) The same car was stolen in a similar home invasion earlier on October 10, 2023.

(7) None of the victims sustained any physical injuries.

(8) At 2:47 a.m., Peel Police located the stolen car with E.R. and the co-accused inside around Brandon Gate Drive and Keenan Crescent, Mississauga. The police conducted a takedown of the car, and all parties were arrested.

The Victim Impact

[4] All four victims provided compelling victim impact statements that detailed the significant effects that this home invasion had on all of them.

[5] N.T. described the sheer panic her mother displayed. Ms. N.T. has felt the effects of this horrible night on her education. It caused her to fail an exam shortly afterwards as she could not concentrate enough to study. She has had many sleepless nights, terrified about the slightest sound. When she does fall asleep, she often wakes up from the nightmare, reliving the home invasion all over again.

[6] R.S.T. was sound asleep when he heard the terrifying strikes to their front door. He ran down the stairs and saw his sister and mother shouting, and an unfamiliar voice shouting back at them. They hid in a room and called 911, distressed, shaken and worried that the assailants were still in their house.

[7] A.K.T. described hearing a huge noise, thinking that her daughter had fallen down the stairs, and ran out of her bedroom only to come face to face with her terrified daughter as the third blow shattered the door and men shouted at them. She described that the trauma of the event has changed everything for her. She feels paranoid and unsafe inside and outside of her house. She lives in fear that the assailants will return someday. A.K.T. cannot sleep, which has physically affected her health. She also mentioned a financial cost associated with the home invasion. They had to pay for their front door to be replaced, install additional locks on the doors to the house, and take further safety measures for their cars.

[8] B.K.T. wrote that he woke up to the terrifying sound of glass shattering. He will never forget seeing his granddaughter and daughter-in-law panicking and screaming. He cannot sleep at night anymore and fears that someone may try to hurt him and his family again.

E.R.’s Background and Circumstances

[9] Much of the information and family history is derived from submissions from counsel and the psychological assessment report.

[10] E.R. is currently 18 years old. He was 17 years old when he committed this robbery. He does not have a youth court record.

[11] He lives with his parents and his older brother. Since his release, E.R. has been subject to strict bail conditions, including house arrest.

[12] E.R. was born and raised in Brampton. He has had a stable upbringing. He described his relationship with his parents as positive. He characterized their parenting style as “flexible” but sometimes strict, especially regarding his safety.

[13] E.R. and his father denied any instances of family violence.

[14] There is no history of family involvement in the criminal justice system.

[15] No other family member has suffered from any mental health issues or has any substance abuse issues.

[16] E.R.’s father reported that E.R. never exhibited any emotional or behavioural dysfunctions while growing up. He described E.R. as an “obedient” child who demonstrated respect for his elders. E.R. did not display any anger management issues. However, his father acknowledged that E.R. has challenges with his attention. E.R. conceded that he has racing thoughts and overthinks.

[17] E.R. has experimented with cannabis and alcohol but does not use them. He has never used illicit drugs.

[18] E.R. completed high school and spent the summer taking additional classes at a private school to bring up his GPA.

[19] He worked with an electrical company during high school through his co-op placement.

[20] E.R. advised that he feels his parents and brother are supportive figures in his life.

[21] E.R. denied having any mental health concerns.

[22] E.R. has had multiple part-time jobs, including working at a grocery store. He recently completed a course on becoming a security guard.

[23] E.R. is focused on pursuing a career in the trades. He is currently enrolled in courses at a trade school and would like to become an electrician.

[24] In the psychological assessment report, Dr. Wong indicated that E.R.’s overall verbal abilities fell within the average range.

[25] With respect to personality and emotional functioning, E.R.’s responses indicated that he may be suffering from a moderate level of anxiety. However, he denied any concerns about depression and suicidal tendencies.

[26] Regarding his personality features, E.R. displayed sad, submissive, and conforming characteristics.

[27] With respect to assessing E.R.’s aggression, paradoxically, he fell within the average level for youths but tested high on verbal aggression. It was suggested in the report that E.R. may have been underreporting his feelings of anger.

[28] The results of the overall risk assessment disclosed that E.R. presents at moderate risk for future criminal activity. The factors that could exacerbate his risk of re-offending include contact with hostile peer groups, possible denial and discrete tendencies, historically having an anti-social / pro-criminal attitude, lack of parental control over his behaviour when E.R. goes out to socialize, and a short attention span.

[29] Regarding societal protective factors, E.R. has support from his family, has maintained part-time employment, has changed his attitude and perspective, and is committed to pursuing a career as an electrician, which he does not want to jeopardize.

[30] E.R. was asked about the circumstances surrounding the offence. He stated that around that time, he was experiencing the “wrong set of mind” then and was “wrongly influenced.” His co-accused were his friends at school. He thought the “wrong thing was fine; do it, try it out.” Money was the motivation, but he understood that it was the wrong choice.

[31] E.R. takes full responsibility for his offence. He knew what he did was wrong and did not blame anyone else. He regrets his actions. In retrospect, he should have avoided the whole situation and never gotten involved.

[32] E.R. understands that his actions were traumatizing for the victims.

[33] Dr. Wong concluded that based on the psychological assessment findings, E.R. did not meet the criteria for diagnosis of a mental disorder. However, some concerning characteristics in his profile should be monitored:

(1) symptoms of Attention Deficit Hyperactivity Disorder,

(2) anti-social attitudes that may be a concern as an adult, and

(3) handling emotions within the context of relationships.

[34] The report makes the following recommendations:

(1) E.R. would benefit from a probation period with strict conditions.

(2) Reside with his parents in their stable but structured home environment.

(3) Attend individual counselling and cognitive behavioural therapy to address the identified risk factors contributing to the offence.

(4) E.R. and his parents attend family counselling with a Punjabi-speaking therapist due to his parents’ English language limitations to address the offence's negative impact on the family.

(5) E.R. should undergo an additional psycho-educational assessment to strengthen his math and language skills.

(6) E.R. should benefit from the involvement of a reintegration worker to assist in keeping him on track while in the community.

The Position of the Parties

The Crown’s Position

[35] Ms. Gauthier, on behalf of the Crown, submits that the appropriate disposition for E.R. is a six (6) month custody and supervision order followed by eighteen (18) months of probation, an order under section 51 of the YCJA prohibiting him from possessing a weapon for two (2) years, and a further order of authorizing the taking of samples of bodily substances for DNA testing. The Crown recommended that I consider the restrictive bail conditions and give E.R. four (4) months of pre-sentence credit. There is no formula for determining the amount of credit to affix for stringent bail conditions pursuant to the principle in R. v. Downes (2006), 2006 ONCA 3957, 205 C.C.C. (3d) 488 (Ont C.A.). I agree that the appropriate credit for the approximately 12 months of stringent bail conditions is four (4) months pre-sentence credit. There was a minor issue while E.R. was on bail that I had been asked to overlook. However, because of the interruption in his bail order, E.R. spent seven (7) days in the Lindsay Jail.

[36] In the alternative, if I do not feel that a closed custody disposition is warranted, the Crown suggests that I impose a period of deferred custody and a supervision order for a period of up to six (6) months pursuant to section 42(5) of the YCJA. The Crown submits that this home invasion or aggravated break and entering, whereby serious violence was caused or intended, is eligible for deferred custody and supervision.

The Defence’s Position

[37] Ms. Mann, on behalf of E.R., submits that the young person should be sentenced to a period of two (2) years probation with several conditions, including a curfew. There is no opposition to the ancillary orders sought by the Crown.

The Guiding Principles in the YCJA

[38] The preamble of the YCJA states that 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 that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons. In R. v. K.O.M., 2017 ONCA 106, the Court, at para. 31, indicated that “a sentence which holds the young offender accountable must reflect, as does a retributive sentence, the moral culpability of the offender and the harm caused.”

[39] Section 3 of the YCJA sets out its declaration of principles. This declaration refers to rehabilitation and reintegration and the protection of the public.

[40] According to the YCJA, I must consider all sentencing options that are appropriate in the circumstances. The issue in this case is whether I should impose a custodial disposition.

[41] I must consider section 39(1) of the YCJA. It provides that:

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

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

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

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

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

[42] None of the paragraphs (b), (c) or (d) apply. Therefore, I can only sentence the young person to custody if I find that he committed a "violent offence." In section 2(1) of the Safe Streets and Communities Act, S.C. 2012, c. 1, the definition of "violent offence" is stated as:

(a) an offence committed by a young person that includes as an element the causing of bodily harm;

(b) an attempt or a threat to commit an offence referred to in paragraph (a); or

(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

[43] The offence of robbery has been deemed a violent offence. (See R. v. D.(C.), 2005 SCC 78.) While E.R. pleaded guilty to the offence of robbery, the facts suggest that this was a home invasion or a break-and-enter with very aggravating circumstances. Home invasion is not defined in the Code. However, a home invasion is a “violent offence” crime and fits within the meaning of section 39(1)(a) of the YCJA. The presence of occupants of the home, with the violation of their sense of sanctity and security in that place and the exposure to the threat of physical or psychological harm, sets the home invasion apart from the break and enter, robbery and other offences committed in relation to the home. (See R. v. J.S., 2006 ONCA 22101, [2006] O.J. No. 2654 at para. 30.)

[44] Since the statutory definition has been established, I am entitled to consider the imposition of a custodial sentence. However, I am bound to consider all reasonable alternatives to custody before incarcerating a young person. Parliament has set out the principles and factors in section 38(2) of the YCJA that must be considered in fashioning a fit and appropriate sentence. 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 principles set out in section 38(2) of the YCJA.

[45] Sentences in Youth Court must "be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence," s. 38(2)(c); and "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," s. 38(2)(d). In order to comply with s. 38(2)(c), the sentence must:

(i) be the least restrictive sentence that is capable of achieving the purpose set out in s. 38(1);

(ii) be the one that is most likely to rehabilitate the young person and reintegrate them 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," see s. 38(2)(e).

Further, a youth sentence, subject to s. 38(2)(c) may have the following objectives: (i) to denounce unlawful conduct and (ii) to deter the young person from committing offences, see s. 38(2)(f), which was added to s. 38(2) due to the 2012 amendments to the YCJA. General deterrence as a sentencing principle has no place in determining an appropriate youth sentence, even for violent offences. (See R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941 at paras. 33 and 34.)

[46] Although s. 38(2)(f) added the sentencing principles of denunciation and specific deterrence, general deterrence was not added and remains excluded as a factor to be considered during a youth sentencing.

[47] A Youth Court sentencing judge must consider the following factors in determining the appropriate sentence, pursuant to s. 38(3):

(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.

Analysis

[48] The thrust of the sentencing regime under the YCJA is that there are options other than custody to be given priority, and custody is the last resort. (See J.S. at para. 45.)

[49] There are 17 sentencing alternatives under section 42(2) of the YCJA. The custody and supervision order is the 14th sentencing option under subsection (n). The YCJA allows three types of custody and supervision orders to be imposed: open, secure or deferred (see R. v. D.W., 2011 NLCA 21).

[50] Under subsection (n), E.R. is subject to a maximum of three years in custody and supervision since he was found guilty of robbery, which carries life imprisonment as an adult. However, the fact that E.R. committed a “violent” offence does not mean that he necessarily be sentenced to custody.

[51] There are alternatives to open or closed custody that is reasonable and adequate in the circumstances to hold E.R. accountable for this offence and would have meaningful consequences for him. The Crown seeks a custodial sentence; however, if I decline to impose custody, the Crown has suggested in the alternative that a deferred custody and supervision order pursuant to section 42(5) of the YCJA is available. But is it?

[52] A deferred custody order has been described as “similar” in some respects to a conditional sentence of imprisonment under section 742.1 of the Criminal Code. (See R. v. B.T.L., 2020 BCPC 185 at para. 41.)

[53] The prerequisites for making a deferred custody and supervision order are set out in section 42(5) of the Youth Criminal Justice Act. That section states as follows:

The court may make a deferred custody and supervision order under paragraph (2)(p) if

(a) 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; and

(b) it is consistent with the purpose and principles set out in section 38 and the restrictions on custody set out in section 39.

[54] Section 42(2)(p) indicates that when a youth justice court "finds a young person guilty of an offence" it may "make a deferred custody and supervision order that is for a specified period not exceeding six months, subject to the conditions set out in subsection 105(2), and to any conditions set out in subsection 105(3) that the court considers appropriate". A deferred custody and supervision order constitutes the imposition of a custodial sentence, which is deferred if the young offender complies with the conditions imposed.

Is a deferred custody order and supervision order available in this case?

[55] The first prerequisite is that a young person has been found guilty of an offence other than one involving the causing or attempting to cause “serious bodily harm” to the victim(s).

[56] The words "serious bodily harm" are not defined in the YCJA or the Criminal Code.

[57] In an earlier version of section 42(5), the section referred to the requirement that the young offender had not committed a "serious violent offence" (see D.W. and the Safe Streets and Communities Act (S.C. 2012, c. 1)). A serious violent offence has been defined in the Youth Criminal Justice Act as an offence in the commission of which a young person "causes or attempts to cause serious bodily harm".

[58] In R. v. D.(C.), 2005 SCC 78, the Supreme Court of Canada considered this former provision. It held that the words "serious bodily harm", in the context of the definition of "serious violent offence", meant "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" (at paragraph 20). The Supreme Court adopted this definition from its earlier decision in R. v. McCraw, 1991 SCC 29, [1991] 3 S.C.R. 72. In R. v. B.S., 2017 MBPC 23, it was held that the Supreme Court of Canada's definition of the words "serious bodily harm" in D.(C.) could be applied to the words "serious bodily harm" in the present section 42(5) of the Youth Criminal Justice Act.

[59] In R. v. L.L., [2019] N.J. No. 60 (P.C.), Justice Gorman held the following at para. 27:

I conclude that for the purposes of section 42(5), the words "serious bodily harm" includes serious psychological harm. I would define "serious bodily harm" for the purpose of section 42(5) of the Youth Criminal Justice Act as "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".

[60] It is clear from the facts that E.R. did not commit an offence that caused or intended to cause serious bodily harm to the victims of this home invasion. However, the victim impact statements that were filed in the case described serious psychological harm that the victims felt and continue to experience.

[61] The victims were subjected to a frightening gang invasion into the sanctity of their home in the middle of the night as they slept. It is a reasonable inference that the intention to break down the front door in the middle of the night with a rod while disguised and demanding the car keys produced terror and alarm to the occupants.

[62] I am satisfied that the intended effect was to cause serious bodily harm. As a result, I do not have the authority to impose a deferred custody and supervision order. The Crown submitted that despite a recent decision from my colleague Justice Camara in R. v. T.M., [2024] O.J. No. 2382, declaring that sections 42(5)(a) and 42(2)(p) of the YCJA violate both sections 15 and 7 of the Charter of Rights and Freedoms and therefore invalid, the sentencing option is available since counsel did not file a notice of constitutional question to claim a constitutional remedy. Regardless of the constitutional question, I have already decided that I do not have authority for the reasons already stated. Does this mean that I must impose a custody and supervision order?

[63] Nothing in section 42 of the YCJA connects deferred and actual custody. These are free-standing sentencing options. There is no step-up principle as a judge can impose a less restrictive and intrusive sentence in appropriate circumstances. (See R. v. GDP, 2018 ABPC 278, at para. 35). Moreover, Parliament has not foreclosed the door for consideration for a non-custodial sentence in the form of probation for an offence where serious bodily harm has been committed. Before a sentencing judge imposes a non-custodial sentence, a custodial sentence must be considered and, if rejected, provide reasons. See R. v. C.C., 2018 NSPC 49, at para. 38.

What is the appropriate sentence?

[64] E.R. was involved in the commission of a violent offence. He was a member of a gang of youths that forcefully entered a residence while disguised, demanding the car keys. Although no one was physically injured, the victims in this matter suffered serious and profound psychological harm.

[65] I have the authority to impose a custodial sentence. However, should I impose a custodial sentence?

[66] After considering the factors set out in sections 39(2) to (5) and the principles as set out in section 38(2), I am satisfied that a custodial sentence is not warranted.

[67] E.R. has taken significant steps in rehabilitation by completing his high school diploma, enrolling in trade school, and maintaining employment while subject to stringent and restrictive bail conditions. Whatever sentence I impose, I am obligated to consider E.R.’s rehabilitation. E.R. is eighteen years old and has future employment and career goals. E.R. did not have a previous youth court record. He has not demonstrated a pattern of violent behaviour or failed to comply with court orders. He has complied with his bail order for over a year, except for a minor transgression. He spent seven (7) days in custody at the Lindsay Jail. Finally, Dr. Wong states there is a low risk of E.R. re-offending.

Conclusion

[68] I conclude, despite the serious nature of the offence that E.R. committed and based upon the rehabilitative steps and lack of criminal antecedents, there is a reasonable alternative to the imposition of a custodial sentence, which is a two-year probation period. I am satisfied that this sentence will promote E.R.’s rehabilitation and will be in keeping with the principles of the YCJA.

[69] E.R. will be subject to the following conditions while on probation:

(1) Keep the peace and be of good behaviour;

(2) Appear before the youth justice court when required.

(3) Report in person to a youth worker immediately and after that, always to the places as directed by the youth worker.

(4) Live at a place approved by the youth worker and do not move from that address without the prior permission of your youth worker.

(5) Obey a curfew and be in your place of residence or on the property of your residence between the hours of 9 p.m. to 6 a.m. daily, except:

• while in your mother, father, or brother's direct company.
• 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 a place of educational, vocational, counselling or treatment programs that have been approved of by your youth worker; or
• with the prior dated written approval of your probation officer to be always carried with you while out of your residence during curfew hours.

(6) 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 section 34 psychological assessment report, and complete them to the satisfaction of the youth worker.

(7) 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.

(8) Do not associate or communicate in any way directly or indirectly with your co-accused, Y.C., J.B. and D.S., except through legal counsel.

(9) Do not associate or communicate with anyone that you know has a youth court or adult criminal record.

(10) Do not attend within 500 metres of […] Drive Brampton.

(11) Attend an educational and/or vocational program approved by the youth worker and complete them to the satisfaction of the youth worker.

(12) 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 counselling and treatment programs

(13) Do not possess any weapon(s) as defined by the Criminal Code.

[70] There will be an order under section 51 of the YCJA prohibiting E.R. from possessing any weapons for a period of two (2) years. There will also be an order authorizing the taking of samples of bodily substances for the purpose of DNA analysis; robbery is a designated offence pursuant to section 457.051 and section 487.04 of the Criminal Code.

Released: November 7, 2024 Signed: Justice P.T. O’Marra