Court File and Parties

COURT FILE NO.: YC-21-0053-00 DATE: 2024-06-14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King T. Jukes, for the Crown

• and -

Z.M.L. G. Labine, B. Rogers, for Z.M.L. Accused

HEARD: April 25, 2024, at Thunder Bay, Ontario

BEFORE: Mr. Justice F. B. Fitzpatrick

WARNING

A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 110 OF THE YOUTH CRIMINAL JUSTICE ACT

Reasons on Sentence

Overview

[1] I will be providing a written copy of these reasons to the parties by the close of business today. These reasons should be entered as the next Exhibit on this trial.

[2] On January 26, 2023, I released my decision in this matter following a multi-day trial held in October 2022. I found Z.M.L. guilty of the offence of manslaughter. I found Z.M.L. was liable as a joint principal under s. 21(1)(a) of the Criminal Code. I found that Z.M.L. had participated in a violent group assault that caused the death of William Wapoose, and that ZML’s acts of repeatedly punching and kicking Mr. Wapoose constituted an unlawful act which was a contributing cause of Mr. Wapoose’s death beyond a de minimus range.

[3] The background facts of the matter and my reasons for decision were contained in a written judgment reported as R. v. Z.M.L., 2023 ONSC 682. I note that the judgment had a typo in the style of cause. The trial was in 2022 not 2021. I also note there is a typo in paragraph 91, where “principal” is misspelled. There was an agreed statement of facts at the trial. I do not see the need to extensively repeat the facts and findings in the case other than by way of a short summary.

[4] In the very early hours of September 3, 2014, three young men came across an intoxicated Indigenous older man, Mr. Wapoose, lying beside a ring road in a popular public park in Thunder Bay. The park was deserted. Initially the group passed by Mr. Wapoose. Then they went back.

[5] I found on the evidence at trial that Z.M.L., together with J.M., began to brutally beat Mr. Wapoose at the roadside. The assault then continued into in a ditch beside the road in an area of tall grass. At that point I found that J.M. stabbed Mr. Wapoose in the throat. This stab wound through the throat and up into the mouth, which severed Mr. Wapoose’s tongue, and which caused severe bleeding, was most likely the primary cause of death. Mr. Wapoose received several stab wounds in this location. Mr. Wapoose was then left for dead by the group. The third young person, L.Z., stole Mr. Wapoose’s bike and the group left. Mr. Wapoose died shortly after the attack.

[6] Z.M.L. is being sentenced pursuant to the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”).

Personal Circumstances of ZML

[7] Z.M.L. is now 27 years old. On the date of the offence, he was about one month shy of his 18th birthday on October 6. The Crown has not elected to seek an adult sentence for Z.M.L.

[8] There were two Pre-Sentence Reports (“PSR”) provided to the court (with two supplementary reports for the YCJA PSR), as well as a psychiatric assessment report prepared pursuant to section 34 of the YCJA by a team of professionals who assessed Z.M.L. in November and December 2023. These reports were entered as exhibits on the sentencing hearing. The Crown did not seek leave to cross examine the authors of the s. 34 report further to section 34(8) of the YCJA.

[9] There was not a great deal of divergence in the descriptions of Z.M.L.’s personal circumstances as reported by the various writers who prepared reports for this matter.

[10] The s. 34 report opines that Z.M.L. has experienced considerable hardships and adverse events in his life. His childhood was fraught with neglect and physical, verbal, and emotional abuse by his mother. Z.M.L. has difficulty reading. He was diagnosed with ADHD at age 8. He attempted suicide at age 16 arising from his being afflicted with a Persistent Depression Disorder.

[11] The s. 34 report team assessed that Z.M.L. has a learning disability. Team member Dr. Shepperd assessed the presence of Post Traumatic Stress Disorder (“PTSD”) through psychological testing and clinical interviews. Dr. Shepperd opined that while Z.M.L. has experienced numerous traumatic events over his life, the most salient traumatic event with regard to his PTSD were the events that occurred the night of the offence.

[12] Z.M.L. did not do well in school as the result of developmental delays in reading, spelling and math. He does not have any friends with which he can associate in person although he has developed on-line gaming associates. Although he is socially isolated, he apparently plays online video games a great deal where he interacts with other players from around the world. Z.M.L. reports having difficulty trusting others.

[13] Z.M.L. has had issues with substance abuse and problematic use of alcohol.

[14] He has little work experience. He held one short term job as a teenager. He has had two longer term dating relationships, which Z.M.L. described as unhealthy and abusive.

[15] The s. 34 report writers did note positive aspects of ZML’s situation. He has expressed a willingness to engage in therapy once the sentencing process is complete. Z.M.L. has supportive family members. His average cognitive abilities provide an opportunity for further learning, and he has demonstrated some degree of empathy towards others as well as animals.

[16] Z.M.L. has complied with his terms of bail since his arrest.

Impact on the Victim and the Community

[17] The Victim Impact Statement of John Shawinimash, Mr. Wapoose’s father, was read into the record. At one point in the statement, Mr. Shawinimash said “My words may not seem much but the daily battle within myself takes its toll.”

[18] In my view, the words of Mr. Shawinimash mean a very great deal. I was particularly impressed with the eloquence and thoughtful way he described how he’s dealt with this unspeakable tragedy. Burying one’s own child, at whatever age, is a heart wrenching experience. His pain and loss, and that of his family, was heard. I also note the hope contained in Mr. Shawinimash’s words – the consideration of forgiveness and the reference to Christian scripture. I note the passage he cited from Ephesians continues to urge others to stand against evil and to trust in God. He referenced the concept of forgiveness and believes that his father – who played such an important role in Mr. Shawinimash’s son’s life – would have urged the same. These comments were uplifting and appropriate for the court to consider in this matter. The court thanks him for it.

[19] In my view there is a significant impact on the community as the result of what happened on the night of September 3, 2014. A defenseless Indigenous man was murdered. The crime was unsolved for many years. This community has had to struggle with the unsolved deaths of Indigenous persons, in particular, over the past number of years. It is a source of ongoing social tension in Thunder Bay. The concerns expressed by the Indigenous community about unsolved deaths of Indigenous persons are noteworthy. They cannot be ignored. When any member of society is murdered at night in a public place, and the murder goes unsolved for many years, this has a troubling and socially significant impact on the fabric of a community.

Legal Parameters on Sentence

[20] Z.M.L. is being sentenced pursuant to the provisions of the YCJA. In this regard, the provisions of section 3, 4, 38 and 42 of the YCJA provide the legal parameters for this sentencing decision. The sections are lengthy. I have included the full text of the sections as Schedule 1 to these reasons. While I have considered the entirety of these provisions, I will recite the particulars of an express section when it bears directly on a specific portion of this decision.

Position of the Crown

[21] The Crown is seeking a three-year sentence for Z.M.L. The Crown relies on section 42(2)(o) of the YCJA which provides:

42(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is 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:

o) in the case of an offence set out in section 239 (attempt to commit murder), 232, 234 or 236 (manslaughter) or 273 (aggravated sexual assault) of the Criminal Code, make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105.

[22] The Crown seeks the maximum sentence for Z.M.L. for manslaughter under section 42(2)(o) of the YCJA. The Crown submits that the sentence should be served as follows:

• twelve to eighteen months in an adult facility pursuant to section 89(1) of the YCJA as Z.M.L. is now 27 years old. Z.M.L. will be given credit for time served of 17 days enhanced at the rate of 1 to 1.5 against any period of custody;
• the balance of the three-year sentence to be served being conditionally supervised in the community in accordance with the provisions of section 105.

[23] The Crown submits that Z.M.L. has been found guilty of a serious violent offence. It relies on the statutory definition of serious violent offence in section 2 of the YCJA which provides:

serious violent offence means an offence under one of the following provisions of the Criminal Code:

(c) section 232, 234 or 236 (manslaughter);

[24] The Crown notes that section 39(1) of the YCJA provides that the court shall not commit a young person to custody under s. 42 unless the young person has committed a violent offence.

[25] The Crown submits that common sense dictates that a conviction of an offence that is statutorily defined as a “serious violent offence” eliminates the prohibition against a custodial sentence in the YCJA because the offence has occurred in a circumstance where the young person has committed a violent offence.

[26] The Crown submits the circumstance of the offence for which Z.M.L. was convicted was one where Z.M.L. perpetrated acts of serious violence against Mr. Wapoose which caused his death. Injury cannot interfere in any more of a substantial way than leading to a person’s death. The court found that Z.M.L. punched and kicked Mr. Wapoose. The assault was vicious and substantial. The punches and kicks contributed to Mr. Wapoose’s death. Mr. Wapoose was a vulnerable person. After the assault, in which Z.M.L. was a central actor, Mr. Wapoose died.

[27] The Crown submits that a Deferred Custody and Supervision Order (DCSO) as urged by the defence is not available on the law or the facts of this case. The Crown relies on section 42(5) of the YCJA which states:

42(5) Deferred custody and supervision order

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.

[28] The Crown submits that Z.M.L. has been clearly found guilty of acts that caused serious bodily harm to Mr. Wapoose.

[29] The Crown points out that it appears that Z.M.L. was not doing much of anything to be a productive member of society from the date of the offence to the day he was arrested in May 2019. Since his arrest, the Crown submits that his efforts to rehabilitate himself or present as a candidate for successful reintegration into society have been minimal. From the PSR, there is little evidence that Z.M.L. was engaged in much “pro-social activities” that bode well for his opportunities to be reintegrated into society. He only became interested in completing his post-secondary education in January 2024. He only recently became amenable to counselling.

[30] The Crown argues that the nature of the offence and the minimal actions towards positive rehabilitative behaviour taken since the offence date limits the sentencing options for Z.M.L. The Crown submits that the other sentencing options set out in section 42(2)(a) through (s) are not appropriate given the gravity of the offence committed and the lack of steps Z.M.L. has taken since the date of the offence in terms of being a productive member of society.

[31] The Crown submits principles of denunciation and deterrence are factors to be considered in sentencing Z.M.L. further to sections 38(2)(f)(i) and (ii) of the YCJA.

Position of the Defence

[32] In its submissions, counsel for Z.M.L. stresses the opportunity for rehabilitation. Z.M.L. seeks the imposition of a DCSO. Z.M.L. submits that what occurred on the night of September 3, 2014, was not an occasion of serious bodily harm being experienced by Mr. Wapoose. ZML’s involvement in the offence does not rise to a level of serious bodily harm. His participation was of a lower level in terms of culpability. The violence he exhibited was limited and of an uncharacteristic nature.

[33] Z.M.L. submits that the lengthy period he has been on bail since his arrest and release following his initial 17-day custody at the District Jail represents a significant penalty. He has in effect “served his penalty”. Counsel for Z.M.L. submits that a period of further incarceration would not be fair. Counsel referred to several authorities in support of the defence position which all predated the amendments to the Criminal Code in 2012 and the addition of the definition of “serious violent offence” to include manslaughter as set out in section 2(1)(c).

Mitigating and Aggravating Factors

[34] Z.M.L. has had prior interactions with the criminal justice system. Before he was arrested for this offence, but after the date of the offence at issue, in March 2016, Z.M.L. received an adult sentence for probation for assault on his girlfriend.

Principles of Sentencing

[35] The purpose of sentencing in the context of a YCJA sentence is to hold a youth accountable for an offence through the use of just sanctions that:

• have meaningful consequences;
• promote rehabilitation and reintegration; and
• thereby contribute to the long-term protection of society.

[36] The sentence must be proportionate to the seriousness of the offence and to the degree of responsibility of the youth for the offence. The sentence must be one that most likely will be rehabilitative and will serve to assist to reintegrate Z.M.L. into society. In evaluating the seriousness of the offence and in constructing a sentence that is proportionate to the seriousness of the offence, section 38(3) of the YCJA mandates that the court consider:

a) the degree to which Z.M.L. participated in the offence; b) the harm done to Mr. Wapoose and whether it was intentional or reasonably foreseeable; c) any reparations made by Z.M.L. to Mr. Wapoose or the community; d) time spent in detention; e) previous findings of guilt of ZML; and f) any mitigating or aggravating factors that are relevant to the purpose and principles set out in section 38.

[37] The sentence imposed must be the least restrictive possible. If it is a custodial sentence, it must not be greater than what would be imposed if Z.M.L. were an adult. A custodial sentence is permissible if the youth committed murder.

[38] The principles of sentencing in section 718 of the Criminal Code will not be applied in sentencing Z.M.L.

Disposition

[39] I agree with the submission of the Crown that a DCSO is not available for Z.M.L. in this case. I agree with the submission of the Crown that a three-year sentence with an eighteen-month custodial component in an adult facility (less time served of 26 days enhanced) followed by an eighteen-month period of conditional supervision in the community is a just sanction that has meaningful consequences. It is one that holds Z.M.L. appropriately accountable for the offence he committed. It will also most directly and effectively create and promote opportunities for Z.M.L. to be rehabilitated and reintegrated into society. I say so for the following reasons.

[40] In my view, defence counsel’s position on sentence continued to rely on the evidence Z.M.L. gave at trial. His interactions with the various report writers were also premised on his position taken at trial. To paraphrase his position at trial, Z.M.L. maintains, “I didn’t do it.” Z.M.L. is entitled to maintain this position. However, the court was entitled to find otherwise on all the evidence and did so find. Further counsel’s position on sentencing that “despite that the victim died, Z.M.L.’s involvement in the offence does not rise to a level of serious bodily harm” represents continued minimization of personal accountability on the part of Z.M.L. I disagree with the submission that Mr. Wapoose did not suffer serious bodily injury when he suffered blows and kicks from Z.M.L. that night. I found that Z.M.L. was standing in very close proximity to Mr. Wapoose when J.M. stuck his knife in Mr. Wapoose’s throat in a motion that went through his lower mouth and severed his tongue.

[41] In considering sentence, I consider the circumstances of the offence. Mr. Wapoose was a 32-year-old man at the time. On Wednesday September 3, 2014, he was drunk and alone in a public park after midnight. Mr. Wapoose was on the ground when Z.M.L. and the other two came upon him. He was defenseless. He wasn’t a threat to anyone. Mr. Wapoose was a fairly easy victim to rob, but the three young men did a lot more than that.

[42] In this sentencing, the court is focused on Z.M.L. I am mindful of the principle of diminished moral blameworthiness that is to be applied to a person who was one month away from no longer having that principle available to him at law. I note the provision of section 3(1)(b) and in particular subsections (iv) and (v), which state:

(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;

[43] Mr. Wapoose’s murder was a cold case from February 2015 until May 2019. The policy consideration of timely intervention and promptness directives of section 3(1)(iv) and (v) could not come in to play as the result of the passage of time in this matter.

[44] In my view, meaningful consequences in this case means a period of incarceration for a youth aged seventeen years and eleven months who was convicted of committing a heinous and cowardly attack on a defenseless person, which led to his death. If an adult sentence was under consideration the circumstances of the offence could have led the court to consider a penitentiary sentence as appropriate. The way this manslaughter occurred, at night, in a public yet isolated place, to a person who was incapable of defending himself and was clearly alone and vulnerable, is an event that should not be happening anywhere, or in Thunder Bay in particular. No one should die like that. Mr. Wapoose’s life was entitled to protection and dignity. This court has found Z.M.L. culpable for ending that life. Being of good behaviour while on bail is significant, but it does not supplant the need to have this sentence be meaningful in response to an offence that was so utterly shameful.

[45] A sentence that includes a period of incarceration will ensure that Z.M.L. has access to rehabilitative programs he clearly needs. His personal development has been delayed for a variety of reasons unrelated to his actions on the night of September 3, 2014. Nevertheless, I agree with the Crown’s submissions that Z.M.L.’s most recent acceptance of the idea he may need more direct professional help, coming as it did so close to the date of sentencing, is a factor that militates in favour of the imposition of a sentence which includes a custodial portion that will give great incentive to Z.M.L.’s participation in remedial programing. I also will be recommending, as suggested by the Crown, that Z.M.L. serve his sentence in the Algoma Regional Treatment facility because of the breadth of programing that is available there.

[46] In my view, societal concerns of safety are important in this case. At the same time, and more significantly, the court appreciates that Z.M.L.’s personal circumstances were and are, not good. He has had a difficult life. However, in my view this does not serve to justify what occurred that evening even in context of the diminished moral blameworthiness and culpability directed by s. 3(1)(b) of the YCJA. The court rejects the submission by Z.M.L.’s counsel that the period he has served on house arrest pursuant to his bail conditions represents “paying his penalty”. It appears that Z.M.L. was living life in a manner similar to house arrest even prior to his arrest. He had no job. He wasn’t going to school. He was staying at home playing video games. There is no question that the pace at which Z.M.L. was brought to trial following his arrest in 2019 was impacted by the COVID pandemic. However, since 2021 when society resumed its regular functioning and this matter came to the Superior Court, it got to trial in a year.

[47] Once the trial decision was handed down, on April 24, 2023, sentencing submissions were originally scheduled for August 28, 2023. In July 2023, the defence indicated it was going to apply to attempt to reopen the trial and submit fresh evidence. This application was abandoned on the date scheduled for the hearing. Sentencing submissions were again delayed by the preparation of the s. 34 report which was not requested by the defence until October 24, 2023. Z.M.L. did not use this intervening time from January 2023 to January 2024 in a particularly productive manner in my view. This sentence will help focus his efforts. Rehabilitation requires commitment from a person to want to be reintegrated into society. In my view, Z.M.L.’s minimization of his culpability for what he has done has, in part, prevented him from this necessary commitment.

[48] The court does not consider as appropriate, nor was it suggested by Z.M.L. during submissions, that other sanctions set out in s. 42(2) such as a reprimand, an absolute discharge, a fine, restitution, community service, forfeiture or probation should be imposed given the circumstances of this matter.

[49] Stand up please ZML.

[50] For the reasons stated, the court is sentencing you to a continuous period of custody and supervision for a total of 3 years pursuant to section 42(2)(o) of the YCJA.

[51] You are ordered to commence your sentence by serving eighteen months in custody, in an adult facility, with credit for time served of 17 days enhanced at the rate of 1 to 1.5, to be followed by eighteen months to be served under supervision in the community subject to conditions. I recommend the custodial portion be served in the adult facility at the Algoma Treatment and Remand Centre.

[52] Further to the provisions of section 42(2)(o), and the operation of section 105 of the YCJA, the provincial director of Ontario shall cause you to be brought before the youth justice Court at least one month before the expiry of the custodial portion of your sentence. At that time, you will be given an opportunity to be heard and the court will then set the conditions of your period of conditional supervision.

[53] Pursuant to section 51(1) of the YCJA ZML shall be prohibited for 10 years from possessing weapons set out in that section. Further pursuant to section 487.051 of the Criminal Code ZML shall provide a DNA sample forthwith.

“originally signed by”

The Hon. Mr. Justice F.B. Fitzpatrick

Released: June 14, 2024