Her Majesty the Queen v. K.C. [Indexed as: R. v. C. (K.)]

105 O.R. (3d) 1

2011 ONCA 257

Court of Appeal for Ontario,

O'Connor A.C.J.O., Simmons and Blair JJ.A.

April 4, 2011

Criminal law -- Young offenders -- Sentencing -- Serious violent offence -- Youth convicted as party to offence potentially subject to designation of "serious violent offence" -- Judge required to determine whether youth's role sufficiently linked to consequential or attempted harm -- Nexus sufficient if youth's role beyond trivial or insignificant cause of harm or attempted harm -- Accused youth pleading guilty to offences arising to two armed robberies -- Sawed-off shotgun used by co-offender to threaten victims on both occasions -- Victims suffering serious psychological harm -- Trial judge erring in declining to make serious violent offence designation with respect to second set of offences -- Offences meeting threshold for serious violent offence designation making deferred sentence unavailable -- No evidence on appeal regarding youth's activities during 16 months since sentencing -- Appeal court remanding to trial judge to impose appropriate sentence.

The accused youth pleaded guilty to a number of offences arising from two armed robberies committed about a week apart. On the first occasion, four or five males robbed a clothing store while one of the males, not the accused, pointed a sawed- off shotgun at one of the two female employees. The employees were bound, blindfolded and threatened. On the second occasion, two male victims were forced out of their own car and into another car by a group of men. One of the men, not the accused, pointed a sawed-off shotgun at them and demanded money. At one point, the accused started driving the victims' car. While the police were pursuing that car, a loaded sawed- off shotgun was thrown from the window. The sentencing judge dismissed the Crown's application to have the offences designated as "serious violent offences" ("SVO") under s. 42(9) of the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA"). While the victims were not physically injured, the sentencing judge found that he could draw an inference of serious psychological harm from the circumstances. However, he was not prepared to exercise his discretion to designate the offences as serious violent offences given the party nature of the accused's involvement and the insufficient nexus between the accused's conduct and the serious psychological harm suffered by the victims. The accused received a global sentence of three months' deferred custody and supervision, in addition to a three-month credit for 76 days of pre-trial custody, and 30 months' probation. The Crown appealed. [page2 ]

Held, the appeal should be allowed.

A serious violent offence designation is available to youths who are found to have committed offences as parties rather than as principals.

A judge must determine whether the role of the youth liable as a party "caused" the harm or potential harm at which the definition of serious violent offence in s. 2(1) of the YCJA. A sufficient nexus is proven if the youth's role was a significant cause -- meaning beyond de minimus or trifling of the harm or potential harm. There is no need to prove a heightened level of causation.

A judge has no discretion to find that the threshold requirements for making an SVO are satisfied if the evidence establishes the requirements. However, a judge may then exercise discretion not to make the finding of SVO if the purposes of the YCJA, including holding youths responsible and accountable for their acts, can be met without the use of the designation. Relevant factors in the exercise of this discretion include steps the youth has taken towards rehabilitation between the acts and sentencing. Although it is unnecessary to reach a conclusion on this point, it may be that the level of moral blameworthiness can be considered as part of the exercise of discretion. At least in relation to the second set of offences, the sentencing judge erred in failing to make an SVO designation. Despite his finding in his SVO ruling of an insufficient nexus between the accused's actions and the conduct that caused serious bodily harm, it was apparent from his reasons for sentence that he was satisfied that the accused's conduct on the second occasion amounted to aiding his fellow assailant in committing offences that caused serious bodily harm. Moreover, as the sentencing judge found that the harm done to the victims in the second set of offences was both intentional and foreseeable, foreseeability concerns could not have formed the basis for exercising his discretion not to make an SVO designation. Particularly having regard to the fact that the second incident was the second occasion in a period of just over a week that the accused was involved in a violent robbery involving the use of a sawed-off shotgun, a deferred custody sentence was insufficient to hold him accountable for his conduct. The second set of offences were designated as serious violent offences, and in light of that designation, the sentence of deferred custody was illegal. The deferred custody sentence was set aside and the matter was remitted to the sentencing judge.

APPEAL by the Crown from the sentence imposed by Wakefield J. of the Ontario Court of Justice dated June 10, 2009.

Cases referred toR. v. E. (M.), [2008] O.J. No. 919, 2008 ONCJ 99, 77 W.C.B. (2d) 102; R. v. Harbottle, 1993 71 (SCC), [1993] 3 S.C.R. 306, [1993] S.C.J. No. 58, 157 N.R. 349, J.E. 93-1672, 66 O.A.C. 358, 84 C.C.C. (3d) 1, 24 C.R. (4th) 137, 20 W.C.B. (2d) 602; R. v. McGuigan, 1982 41 (SCC), [1982] 1 S.C.R. 284, [1982] S.C.J. No. 9, 134 D.L.R. (3d) 625, 40 N.R. 499, J.E. 82-305, 66 C.C.C. (2d) 97, 26 C.R. (3d) 289, 7 W.C.B. 258; R. v. Nette, [2001] 3 S.C.R. 488, [2001] S.C.J. No. 75, 2001 SCC 78, 205 D.L.R. (4th) 613, 277 N.R. 301, [2002] 2 W.W.R. 1, J.E. 2001-2134, 158 B.C.A.C. 98, 96 B.C.L.R. (3d) 57, 158 C.C.C. (3d) 486, 46 C.R. (5th) 197, 16 M.V.R. (4th) 159, 51 W.C.B. (2d) 333; R. v. Nicholson, 1981 216 (SCC), [1981] 2 S.C.R. 600, [1981] S.C.J. No. 104, 130 D.L.R. (3d) 577, 39 N.R. 611, [1982] 1 W.W.R. 385, 13 Man. R. (2d) 91, 64 C.C.C. (2d) 116, 24 C.R. (3d) 284, 7 W.C.B. 49; R. v. Paquette, 1976 24 (SCC), [1977] 2 S.C.R. 189, [1976] S.C.J. No. 62, 70 D.L.R. (3d) 129, 11 N.R. 451, 30 C.C.C. (2d) 417, 39 C.R.N.S. 257; R. v. Smithers, 1977 7 (SCC), [1978] 1 S.C.R. 506, [1977] S.C.J. No. 58, 75 D.L.R. (3d) 321, 15 N.R. 287, 34 C.C.C. (2d) 427, 40 C.R.N.S. 79, consd Other cases referred to R. v. B. (D.) (2008), 92 O.R. (3d) 399, [2008] 2 S.C.R. 3, [2008] S.C.J. No. 25, 2008 SCC 25, EYB 2008-133366, J.E. 2008-1070, 374 N.R. 221, 77 W.C.B. (2d) 524, 231 C.C.C. (3d) 338, 237 O.A.C. 110, 293 D.L.R. (4th) 278, 56 C.R. (6th) 203, 171 C.R.R. (2d) 133; [page3 ][cf2]R. v. D. (C.); R. v. K. (C.D.), [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79, 2005 SCC 78, 261 D.L.R. (4th) 257, 343 N.R. 1, [2006] 5 W.W.R. 195, J.E. 2006-64, 54 Alta. L.R. (4th) 67, 376 A.R. 258, 203 C.C.C. (3d) 449, 34 C.R. (6th) 323, 67 W.C.B. (2d) 867; R. v. F. (E.), [2007] O.J. No. 1000, 2007 ONCJ 113, 157 C.R.R. (2d) 189, 73 W.C.B. (2d) 581; R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 2003 SCC 46, 230 D.L.R. (4th) 296, 308 N.R. 333, [2004] 2 W.W.R. 393, J.E. 2003-1825, 186 B.C.A.C. 161, 19 B.C.L.R. (4th) 243, 177 C.C.C. (3d) 97, 13 C.R. (6th) 205, 58 W.C.B. (2d) 154; R. v. Maciel, [2007] O.J. No. 1034, 2007 ONCA 196, 222 O.A.C. 174, 219 C.C.C. (3d) 516, 47 C.R. (6th) 319, 73 W.C.B. (2d) 235; R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72, [1991] S.C.J. No. 69, 128 N.R. 299, J.E. 91-1496, 49 O.A.C. 47, 66 C.C.C. (3d) 517, 7 C.R. (4th) 314, 14 W.C.B. (2d) 61; R. v. S. (J.) (2006), 2006 22101 (ON CA), 81 O.R. (3d) 511, [2006] O.J. No. 2654, 213 O.A.C. 274, 210 C.C.C. (3d) 296, 70 W.C.B. (2d) 194 (C.A.); R. v. T. (V.J.), [2007] M.J. No. 122, 2007 MBCA 45, [2007] 7 W.W.R. 326, 214 Man. R. (2d) 94, 218 C.C.C. (3d) 563, 73 W.C.B. (2d) 583 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 17 [as am.], 21, (1), 231(5), 753(1) Interpretation Act, R.S.C. 1985, c. I-21, s. 11 Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 2, (1), (2), 3, 34, 38(2), (c), 39, (1), 42(2)(p), (r), (5), (7), (9) Authorities referred to Bala, Nicholas, Youth Criminal Justice Law (Toronto: Irwin Law, 2002) Bala, Nicholas, and Sanjeev Anand, Youth Criminal Justice Law, 2nd ed. (Toronto: Irwin Law, 2009) Driedger, Elmer A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)

Holly Loubert, for appellant. Raymond Boggs, for respondent.

The judgment of the court was delivered by

SIMMONS J.A.: -- I. Overview

[1] This appeal raises an issue concerning the proper test to be used when the Crown applies under s. 42(9) of the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA") for a "serious violent offence" designation in relation to an offence committed by a young person found guilty as a party. [See Note 1 below] [page4 ]

[2] The respondent pleaded guilty to eight offences arising out of his involvement as a party to two armed robberies. In relation to the first armed robbery, he was found guilty of robbery with a firearm, unlawful confinement, possession of a prohibited weapon and possession of stolen property valued at over $5,000. In relation to the second armed robbery, he was found guilty of robbery with a firearm, unlawful confinement, uttering threats and failing to stop for police.

[3] The sentencing judge dismissed the Crown's application to have the offences designated as serious violent offences. He said that he was not prepared to exercise his discretion to do so, "given the party nature [of the respondent's involvement and] given the greater removal of nexus between [the respondent's] choices and actions" and the serious psychological harm the sentencing judge inferred was suffered by the victims.

[4] Ultimately, the sentencing judge imposed a global sentence of three months' deferred custody and supervision, in addition to three months' credit for 76 days of pre-sentence custody, together with 30 months' probation requiring 120 hours of community service.

[5] On appeal, the Crown submits that the sentencing judge failed to apply the proper legal test for determining whether the respondent's offences should be designated as SVOs, that the sentencing judge's SVO ruling is unreasonable and that, in any event, the global sentence imposed is unfit.

[6] For the reasons that follow, I would allow the appeal, make an SVO designation in relation to the second set of offences, set aside the global sentence imposed by the sentencing judge and remit the matter to the sentencing judge for sentencing. II. Background (i) The offences

[7] The first set of offences occurred on January 19, 2007; the second set on January 27, 2007. The sentencing proceeded on the basis of an agreed statement of facts. The gist of the agreed statement of facts is as follows.

[8] On January 19, 2007, at approximately 3:00 p.m., the accused and four to five other males entered a clothing store in Ajax, [page5 ]Ontario. After looking around the store for a few minutes, one of the males (not the respondent) pointed a sawed-off shotgun at the left temple of one of the two female employees who were working that day. Three of the males took the two victims to the basement of the store where they bound the victims with duct tape, blindfolded them and threatened them. The males filled garbage bags with clothing and then left the store, taking the computer that holds the video surveillance footage for the store with them. They fled the scene in a car that police later determined had been stolen from the Ajax GO Station parking lot.

[9] One of the respondent's fingerprints was discovered on a garbage bag left behind at the clothing store. Following his arrest in relation to the January 27, 2007 incident, the respondent gave an inculpatory statement to the police in which he claimed that he acted as a lookout during the January 19, 2007 robbery. One of the victims of that robbery identified a different person in a photo line-up as being the person with the sawed-off shotgun.

[10] On January 27, 2007, two male victims, O.M. and K.D., travelled to a parking lot near the Pickering Town Centre to meet two young women with whom one of the male victims had been chatting online. The meeting turned out to be a set-up. Soon after the victims arrived at their destination, they were approached by a group of males that included the respondent. One of the males (not the respondent) pointed a sawed-off shotgun at the victims and demanded money. The victims were then forced out of their car at gunpoint and pushed into the back seat of their vehicle. The males took the victims' wallets, identification and money.

[11] The male who was armed with the sawed-off shotgun then got into the back seat of the car with the victims. He kept the gun pointed at them and threatened to shoot them. Two other males, both armed with knives, got into the front seat. One of the victims, O.M., offered to withdraw money from his bank account in an effort to satisfy the males. The group drove to a bank machine, where one of the males attempted to withdraw money from O.M.'s bank account without success. O.M. was instructed to get money from a relative and was told that if the males did not get their money, K.D. would be killed. Once O.M. was away from the suspects, police were notified and officers dispatched.

[12] Meanwhile, the males returned to the parking lot near the Pickering Town Centre with K.D. Some of the males got into another vehicle, at which point the respondent took over as the driver of the victims' car. K.D. made numerous calls in an [page6 ]attempt to get money for the males. The male with the shotgun remained in the back seat with the victim.

[13] After being told by the male with the shotgun that he had to see his child's mother, the respondent drove the victims' car to Highway 401 and then onto the Don Valley Parkway. Police located the car and began a pursuit that eventually involved three different police forces. At one point during the pursuit, the police attempted a rolling block stop. However, the respondent struck two police cruisers, causing minor damage, and continued to flee. A lone OPP officer eventually stopped the vehicle.

[14] The respondent got out of the car and attempted to escape on foot, but he was caught by the police officer. The other males were never apprehended. With the assistance of K.D., police found the sawed-off shotgun, which was thrown from the car window during the pursuit. The shotgun was loaded and operable when it was recovered. On searching the respondent incident to his arrest, the police found a yellow shotgun shell. (ii) The trial Crown's position on sentence

[15] Following the respondent's guilty plea and the findings of guilt, the trial Crown indicated she would be asking that the offences be designated as serious violent offences and that a three-year custodial sentence be imposed -- the maximum sentence allowable under the YCJA for these offences.

[16] None of the victims of the two sets of offences suffered physical injuries. Accordingly, the trial Crown relied on serious psychological harm as the basis for the SVO designations.

[17] Further, because none of the victims filed victim impact statements, the trial Crown relied on the circumstances of the offences as creating an irresistible inference of serious psychological harm.

[18] Finally, the trial Crown relied on statements made by the respondent during a s. 34 YCJA assessment indicating that he appreciated that the victims must have been traumatized as supporting the availability of an inference of serious bodily harm. III. The SVO Provisions of the YCJA and the Significance of an SVO Designation (i) The SVO provisions of the YCJA

[19] Section 2(1) of the YCJA defines "serious violent offence" as meaning "an offence in the commission of which a young person causes or attempts to cause serious bodily harm". [page7 ]

[20] Section 42(9) of the YCJA sets out the circumstances in which a sentencing judge may designate an offence as a serious violent offence:

42(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly.

[21] The term "serious bodily harm" is not defined in the YCJA. However, under s. 2(2) of the YCJA, "[u]nless otherwise provided, words and expressions used in [the YCJA] have the same meaning as in the Criminal Code".

[22] In R. v. D. (C.); R. v. K. (C.D.), 2005 SCC 78, [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79, Bastarache J. observed that the Criminal Code meaning of the term "serious bodily harm" was determined in R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72, [1991] S.C.J. No. 69. He said, at para. 20, that he saw no reason why that definition should not also be used for purposes of the definition of serious violent offence in the YCJA:

In R. v. McCraw, [citation omitted] Cory J., writing for a unanimous Court, relied on this definition of "bodily harm", as well as the dictionary definition of "serious", to interpret the meaning of "serious bodily harm" for purposes of s. 264.1(1)(a) of the Criminal Code as it was worded before February 15, 1995. Specifically, Cory J. held that "serious bodily harm" is "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" (p. 81). I see no reason why this definition of "serious bodily harm" should not also be used for purposes of the YCJA, and, in particular, for purposes of the definition of "serious violent offence" that is found in s. 2(1) of the Act.

[23] Similarly, it appears to be generally accepted that the designation applies to parties and not just to principals. For example, in R. v. T. (V.J.), 2007 MBCA 45, [2007] M.J. No. 122, 218 C.C.C. (3d) 563 (C.A.), Steel J.A. said, at para. 26, "the designation may be made against either a principal or a party". She went on to hold, "[i]t is necessary to consider the different degrees of complicity of each party and assess their respective roles in the offence". Bloomenfeld J. reached similar conclusions in R. v. E. (M.), [2008] O.J. No. 919, 2008 ONCJ 99. (ii) The significance of an SVO designation

[24] An SVO designation has two important consequences for a young person found guilty of an offence. First, it means that the sentencing option of a deferred custody and supervision order, the YCJA counterpart to a conditional sentence, is not available. [page8 ]

[25] Section 42(2)(p) of the YCJA provides authority to make a deferred custody and supervision order of up to six months' duration. However, s. 42(5) stipulates that the court may make a deferred custody and supervision order where the young person is found guilty of an offence that is not a serious violent offence -- effectively precluding a deferred custody order where a young person is found guilty of an offence that is a serious violent offence.

[26] Accordingly, although an SVO designation does not make an actual custodial sentence mandatory, in practical terms, having regard to the inherent seriousness of an SVO, it means that, absent exceptional circumstances, an actual custodial sentence will be the only realistic sentencing option.

[27] The second important consequence of an SVO designation is that it makes available the sentencing option of an intensive rehabilitative custody and supervision order under s. 42(2)(r) of the YCJA where certain conditions are met, including that the young person has been previously found guilty at least twice of a serious violent offence and where an adult would be liable to imprisonment for more than two years for the offence attracting a third SVO designation: s. 42(7). [See Note 2 below] An intensive rehabilitative custody and supervision order serves as an alternative to standard custody and supervision orders where a young person has mental health problems. The order places a young person in a secure facility for treatment, followed by a high level of supervision and support in the community: see Nicholas Bala and Sanjeev Anand, Youth Criminal Justice Law, 2nd ed. (Toronto: Irwin Law, 2009), p. 600. [See Note 3 below] IV. The Sentencing Judge's Reasons (i) The SVO ruling

[28] The sentencing judge accepted the trial Crown's submission that he should draw an inference of serious psychological harm from the circumstances. However, he rejected the Crown's argument that he should rely on comments made by the respondent during interviews for the s. 34 assessment, indicating he [page9 ]appreciated that the victims must have been traumatized, as supporting the availability of an inference of serious psychological harm. In the sentencing judge's view, those comments indicated only that the respondent realized the degree of trauma suffered by the victims at the time he was being interviewed. Moreover, the fact that the respondent may not have appreciated the potential consequences to the victims at the time the offences were committed was a factor to be considered in determining whether to make an SVO designation.

[29] As for the significance of the respondent's liability for the offences as a party, the sentencing judge noted the comments of Bloomenfeld J. in R. v. E. (M.), to the effect that "legal liability as a party to an offence in which serious bodily harm is caused or attempted does not provide an automatic or irresistible foundation for a serious violent offence determination": para. 11. Rather, Bloomenfeld J. concluded that "the inquiry extends beyond the legal elements of the offence committed to the precise nature of the young person's role in causing or attempting to cause serious bodily harm in perpetrating the offence": para. 12.

[30] Further, Bloomenfeld J. stated, "the definition of 'serious violent offence' in s. 2(1) of the YCJA explicitly creates an additional condition, namely that the young person not only 'commit' the offence but that, in doing so, he or she cause or attempt to cause serious bodily harm": para. 13. Moreover, "[w]here a young person is a party to an offence and there is an insufficient nexus between his or her actions and the consequent or an attempt to cause serious bodily harm, the definition of serious violent offence has not been met and a judicial determination of serious violent offence should not be made": para. 19.

[31] In this case, the sentencing judge appears to have adopted Bloomenfeld's J.'s approach and concluded that there was an insufficient nexus between the respondent's conduct and the serious psychological harm the sentencing judge inferred had been caused to warrant an SVO designation. In his words, he "was not prepared to exercise [his] discretion" to make the designation:

In the circumstances of the case at bar, notwithstanding s. 21 of the Criminal Code, and looking at specifically the analysis of the nexus between the actions and the consequent or an attempt to cause serious bodily harm in the situation [the respondent] was in, and the agreed statement of facts, I am not prepared to exercise my discretion to categorize this as a serious violent offence given the party nature, given the greater removal of nexus between [the respondent's] choices and actions, and the actual inferred psychological harm which I have no difficulty in inferring in the facts of this case. (Emphasis added) [page10 ] (ii) The sentence imposed

[32] In imposing sentence, the sentencing judge reviewed the various principles of sentencing set out in the YCJA, the circumstances of the offence and the circumstances of the offender.

[33] Concerning the offence, the sentencing judge noted that "the statement of facts cumulatively set out a cascade of aggravating factors to amount to the worst case" and that while the respondent was "a party to the first incident, in the second incident, he took a direct role assuming control of the car and could have terminated the offence at any time by bringing the car to a safe stop". Further, he found that "the harm done to the victims was both intentional and foreseeable, if perhaps not as much for this defendant in the first incident, clearly so in the second, where he knew of what his colleagues were capable".

[34] Concerning the offender, the sentencing judge found that the pre-sentence report and the s. 34 assessment demonstrated that the respondent is not the worst offender. He referred in particular to the turmoil and disruption experienced by the respondent upon his parents' separation and to the challenges the respondent faces in a regular school environment. The sentencing judge also noted the respondent's growing insight into the impact of the offences on the victims; his acknowledgement of responsibility and shame for his involvement in these offences; the consensus concerning the respondent's relatively low risk to re-offend and the recommendation in the s. 34 assessment indicating that a custodial disposition could be detrimental to the respondent. In addition, the sentencing judge referred to the respondent's efforts to make reparations to the community by advocating against violence and to the respondent's pre-sentence detention. He noted that on the usual 1.5:1 basis, the respondent would receive 114 days' (or just under four months') credit for 76 days of pre-sentence secure custody.

[35] The sentencing judge went on to say that, had the sentencing occurred within six months of the offence, he would have had no hesitation in imposing a two-year secure custody sentence less credit for pre-sentence custody. However, because of the lack of timely intervention (the reasons for sentence were delivered on June 10, 2009, about 2[cents] years after the offences took place and about nine months after the respondent pleaded guilty on September 17, 2008), he concluded that such a sentence would be inappropriate. He said:

However, the effluxion of time can ameliorate the severity of sentence if that time is being used positively, as it has been in this matter, and as a sentencing factor where we have lost that opportunity to reinforce "the link between the offending behaviour and its consequences" when we lost timely intervention. [page11 ] . . . . .

I am brought to the conclusion that a meaningful consequence and fair and proportionate accountability for who this defendant is today and the rehabilitative progress he has demonstrated over the past two years, having experienced secure custody during the pre-sentence custody, having been subjected to and successfully complying with bail restrictions amounting to house arrest, is to impose the maximum deferred custody permitted by the Act. . . . . .

As such, there will be noted 76 days of pre-sentence custody concurrent on each charge, with a further three months deferred custody concurrent on each charge[.]

V. The Positions of the Parties on Appeal (i) The Crown

[36] In oral argument, the Crown acknowledged that its position has shifted concerning the proper test to be used when considering whether to make an SVO designation in relation to an offence committed by a person found guilty as a party.

[37] Whereas, following the enactment of the YCJA, the Crown initially took the position that a finding of party liability in relation to an offence that resulted in serious bodily harm met the SVO threshold, the Crown now adopts the test set out in R. v. E. (M.). Accordingly, a proper assessment of whether to make an SVO designation requires considering the nature of the particular offender's participation to assess whether there is a sufficient nexus between the offender's role and the consequent or attempted serious bodily harm.

[38] In response to a question posed during oral argument about the meaning of the word "cause" in the phrase "in the commission of which a young person causes or attempts to cause serious bodily harm", the Crown relied on the standard meaning of causation in criminal law cases, apart from constructive first degree murder cases -- significant contributing cause. Put another way, the test is framed as a contributing cause "outside the de minimis range" or "a contributing cause that is not trivial or insignificant". See R. v. Smithers, 1977 7 (SCC), [1978] 1 S.C.R. 506, [1977] S.C.J. No. 58; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, [2001] S.C.J. No. 75.

[39] Concerning the January 19, 2007 incident, the Crown argued that the respondent's participation in an offence involving group intimidation that resulted in serious psychological harm was sufficient to meet the threshold of significant contributing cause. As for the January 27, 2007 incident, the Crown asserted that the respondent's direct participation through continuing to drive the car while his counterpart in the back seat [page12 ]pointed a loaded sawed- off shotgun at one of the victims satisfied the necessary threshold.

[40] Taking account of these circumstances, the Crown argued that the sentencing judge erred in failing to make an SVO designation; that the sentence imposed was therefore illegal; and that a substantial period of custody should be substituted.

[41] In oral argument, the Crown also acknowledged that s. 42(9) of the YCJA has been interpreted as conferring discretion on sentencing judges, such that a sentencing judge may decline to make an SVO designation even though the threshold test has been satisfied. However, as I understood the submissions, the Crown did not concede that that interpretation is correct. (ii) The respondent

[42] The respondent submits that to meet the threshold for designation as an SVO, a young person found guilty as a party to an offence that results in serious bodily harm must perform an act that is a direct cause of serious bodily harm to the victim or that constitutes an actual attempt to cause serious bodily harm. Alternatively, the threshold will be met where the young person masterminded the conduct that actually caused serious bodily harm or constituted an attempt to cause serious bodily harm.

[43] As I understand the respondent's position, he submits that party liability to the underlying offence is insufficient to support an SVO designation and adopts more of a Harbottle [See Note 4 below] approach, arguing that a participant's actions must be a direct contributing cause of serious bodily harm or they must constitute an actual attempt to inflict serious bodily harm.

[44] The respondent contends that, on the trial judge's findings, the victims suffered serious psychological harm only as a result of being threatened with a sawed-off shotgun. As the respondent did not engage in or attempt to engage in this conduct, and as the Crown did not demonstrate that the respondent masterminded this conduct, his participation in the offences does not meet the threshold for designation as an SVO. The appeal should therefore be dismissed. [page13 ] 43. Analysis (i) Interpretation of the SVO provisions of the YCJA

[45] The definition of an SVO set out in s. 2(1) of the YCJA establishes the threshold for designating an offence as an SVO and requires a two-step analysis. First, it is necessary to identify the offence that the young person committed. In doing so, a court may apply the ordinary rules governing party liability. The second step requires a court to determine if the young person's offence caused bodily harm. I will discuss the meaning of "cause" in this context below.

[46] Once a court is satisfied that the threshold established by the s. 2 definition for making an SVO designation has been met, s. 42(9) of the YCJA gives the court a discretion concerning whether to make an SVO designation.

[47] The starting point for interpreting the definition of "serious violent offence" in s. 2(1) and for interpreting s. 42(9) of the YCJA is the modern principle of statutory interpretation as set out in Elmer A. Driedger's Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

[48] I will repeat the SVO provisions of the YCJA for ease of reference:

2(1) "serious violent offence" means an offence in the commission of which a young person causes or attempts to cause serious bodily harm. . . . . .

42(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly.

[49] On a plain reading of these provisions, the SVO definition contained in s. 2(1) of the YCJA creates a preliminary threshold that must be met before an SVO designation can be made, while s. 42(9) gives sentencing judges discretion concerning whether to make the designation in cases where the preliminary threshold is satisfied.

[50] I will begin with the definition of "serious violent offence" and the question of how it applies where a young person is found guilty as a party to an offence. I will then turn to the issues of causation and the discretion under s. 42(9). [page14 ] (a) The definition of serious violent offence and party liability

[51] As I see it, the issue about whether and how the s. 21 of the Criminal Code party liability provisions apply to the SVO definition arises, at least in part, because of the use of the words "an offence in the commission of which [a young person causes or attempts to cause serious bodily harm]" in the SVO definition.

[52] Section 21(1) of the Criminal Code sets out three ways in which a person can be a party to an offence: (i) by "actually commit[ting] it"; (ii) by doing or omitting to do anything "for the purpose of aiding any person to commit it"; or (iii) by "abet[ting ] any person in committing it".

[53] On a strict reading of s. 21(1) of the Criminal Code, one could interpret the SVO definition as applying only to principals, as they are the only ones who actually "commit" the offence.

[54] Thus, in R. v. Paquette, 1976 24 (SCC), [1977] 2 S.C.R. 189, [1976] S.C.J. No. 62, the Supreme Court of Canada interpreted the words "a person who commits an offence" in s. 17 of the Criminal Code as making the statutory defence of duress available only to principals (persons who actually "commit" an offence) and not to parties. In reaching this conclusion, the court stated, at p. 194 S.C.R.:

[Section 17] uses the specific words "a person who commits an offence". It does not use the words "a person who is a party to an offence." This is significant in the light of the wording of s. 21(1) which, in para. (a), makes a person a party to an offence who "actually commits it". Paragraphs (b) and (c) deal with a person who aids or abets a person committing the offence. In my opinion s. 17 codifies the law as to duress as an excuse for the actual commission of a crime, but it does not, by its terms, go beyond that. R. v. Carker [1966 39 (SCC), [1967] S.C.R. 114.], in which reference was made to s. 17 having codified the defence or excuse of duress, dealt with a situation in which the accused had actually committed the offence. (Emphasis added)

[55] However, in its subsequent decisions in R. v. Nicholson, 1981 216 (SCC), [1981] 2 S.C.R. 600, [1981] S.C.J. No. 104 and R. v. McGuigan, 1982 41 (SCC), [1982] 1 S.C.R. 284, [1982] S.C.J. No. 9, the Supreme Court confined the Paquette interpretation to situations where Parliament's intention concerning the restricted meaning of the word "commit" is clear.

[56] In particular, in R. v. Nicholson, the Supreme Court of Canada held, at p. 604 S.C.R., that as offences are generally defined in terms of those who commit them, offences using commission of an offence terminology should not generally be interpreted as excluding s. 21 of the Criminal Code unless Parliament's intent in that regard is clear: [page15 ]

The Code generally defines offences in terms of those who commit them and, save where the definition is clearly limited to those committing, it has never been applied to exclude culpability of a person as a party under s. 21. I do not find that paras. 83(1)(a) or (d) have this limited effect.

[57] Importantly, in McGuigan, the Supreme Court also held that where "commit" is used in the broader sense of including party liability, it was unnecessary that a person charged with using a firearm while attempting to commit an indictable offence actually use the firearm so long the person met the requirements for party liability.

[58] While I accept that the SVO designation has serious consequences for young persons and that a cautious approach should therefore be used in interpreting the SVO provisions (see R. v. K. (C.D.) and R. v. T. (V.J.)), [See Note 5 below] I see nothing in the SVO provisions or elsewhere in the YCJA that indicates a clear parliamentary intention that s. 21 should not be available to support an SVO designation for offenders who are found to have committed offences as parties.

[59] On the contrary, where a young person is found guilty as a party to an offence that causes serious bodily harm, it seems entirely consistent with the objectives of the YCJA that the young person be eligible for an SVO designation. Although one of the purposes of youth sentencing is to reduce the overuse of custody for non-violent young offenders and although the scheme of the YCJA sentencing regime makes custody a last resort, [See Note 6 below] the [page16 ]principles of youth sentencing, as expressed in ss. 3 and 38(2), also include

-- ensuring that a young person is subject to meaningful consequences for his or her offence"; and

-- ensuring that a sentence is "proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence" (emphasis added). (b) Causation

[60] I now return to the meaning of "cause" in the SVO definition.

[61] In my view, the proper meaning of cause is that set out in the Smithers/Nette formulation -- significant contributing cause -- meaning a contributing cause beyond de minimis or a contributing cause that is not trivial or insignificant.

[62] I would not adopt the Harbottle-like test proposed by the respondent. On my reading of R. v. Harbottle and the subsequent decision of the Supreme Court of Canada in R. v. Nette, the decision to adopt the Harbottle test flowed from two considerations -- the specific language of s. 231(5) of the Criminal Code, and the severity of the crime and the high degree of moral blameworthiness associated with it.

[63] Section 231(5) provides, in part, as follows:

231(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when death is caused by that person while committing or attempting to commit an offence under one of the following sections[.] (Emphasis added)

[64] In my view, the language of the SVO definition is sufficiently different from that of s. 231(5) to justify rejecting a Harbottle-like test.

[65] Moreover, in Harbottle, the Supreme Court held that, in determining whether to classify a murder as first degree murder under what is now s. 231(5) of the Criminal Code, a higher test for causation was appropriate. "The gravity of the crime and the severity of the sentence, both indicate," wrote Cory J., at p. 323 S.C.R., "that a substantial and high degree of blameworthiness, above and beyond that of murder, must be established [page17 ]in order to convict an accused of first degree murder" (emphasis in original).

[66] Further, in R. v. Nette, at para. 64, the Supreme Court of Canada indicated that the Harbottle test is used in a very particular context "to indicate a higher degree of legal causation" and "only comes into play at the stage of deciding whether the accused's degree of blameworthiness warrants the increased penalty and stigma of first degree murder". Accordingly, the Supreme Court in Nette rejected the argument that the substantial cause test should be used to describe the requisite degree of causation for second degree murder.

[67] Although an SVO designation subjects a young person to consequences that are potentially more severe than would otherwise be the case, the increase in consequences is not so great and the stigma associated with an SVO designation is not so severe to warrant a departure from the Smithers/Nette "significant contributing cause" test, as opposed to the higher "substantial cause" test in Harbottle.

[68] Similarly, I would not adopt the sufficient nexus test proposed by the Crown as an additional component of the test for either party liability or causation. Offences such as assault causing bodily harm and unlawfully causing bodily harm do not require that the Crown demonstrate "a sufficient nexus" between the actions of a person charged as a party to the offence and the bodily harm caused in the commission of the offence. Rather, the ordinary rules of causation and party liability apply.

[69] Whether the tests proposed by the Crown and the respondent are viewed as addressing causation or participation, I see nothing in the language of the SVO definition or in the added consequences of an SVO designation that justifies a departure from the standard criminal law test for causation or that requires a heightened level of participation to support an SVO designation for a person found guilty as a party to the underlying offence.

[70] That said, I do think that it may be arguable that some level of foreseeability of bodily harm is a necessary component of determining whether a young person is sufficiently morally blameworthy to meet the threshold for an SVO designation.

[71] However, in arguing this appeal, the parties did not address the issue of foreseeability of bodily harm as a component of the SVO threshold and I do not find it necessary to do so. As I point out below, the trial judge concluded, in effect, that the respondent had subjective foresight of bodily harm with respect to the second set of charges. That level of foresight would clearly satisfy any level of foresight that may be found to be necessary at the threshold stage of the analysis. I would add that if [page18 ]foreseeability of bodily harm is found not to be a component of the SVO threshold, in my view, it is a factor that can be considered as part of the exercise of discretion as to whether to make an SVO designation or not.

[72] I turn now to the designation of an offence as an "SVO" under s. 42(9). (c) Discretion under s. 42(9) of the YCJA

[73] As I have said, in my view, s. 42(9) gives a court discretion not to impose an SVO designation even though the threshold for making an SVO designation has been met. Although this issue was not the subject of extensive argument on the appeal, I will touch on it briefly, as the sentencing judge spoke in terms of exercising his discretion in relation to making the designation.

[74] Section 11 of the Interpretation Act, R.S.C. 1985, c. I- 21 provides that "[t]he expression 'shall' is to be construed as imperative and the expression 'may' as permissive". Although "may" can also be construed as conferring a power that can be coupled with a duty to exercise that power once the statutory criteria for doing so are met, I see no indication in the language of s. 42(9) or elsewhere in the YCJA of a duty to make an SVO designation: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, at para. 17.

[75] On the contrary, the conclusion that the use of the word "may" in s. 42(9) gives a court discretion concerning whether to make an SVO designation appears consistent with the twin objectives of the YCJA of reducing the overuse of custody for young persons while holding young persons accountable when they commit serious offences. The discretion not to make an SVO designation allows a court to achieve the former objective when an SVO designation is unnecessary to achieve the latter.

[76] Moreover, in my view, the wording of s. 42(9) is similar to the former s. 753(1) of the Criminal Code, which provided that a sentencing judge "may . . . find the offender to be a dangerous offender".

[77] In R. v. Johnson, the Supreme Court of Canada held that the exercise of discretion under the former s. 753(1) of the Criminal Code "must be guided by the relevant principles of sentencing" set out in the Criminal Code and that "one factor that a sentencing judge must consider is the possibility that [less restrictive sanctions] would be sufficient to achieve the objectives that the dangerous offender provisions seek to advance": paras. 27-28.

[78] Similarly, it seems to me that at least one factor a sentencing judge must consider in deciding whether to designate an offence as a serious violent offence is whether the consequences of an SVO designation are necessary to achieve the purposes of [page19 ]youth sentencing. Depending on the circumstances of the particular case, this in turn could bring into play the whole panoply of factors relevant to youth sentencing.

[79] In this case, one such factor could be whether the appellant actually foresaw that the offences in which he participated would likely cause bodily harm that was more than transient or trifling. This factor is relevant because it addresses the appellant's level of moral blameworthiness for the serious bodily harm caused by the offences.

[80] Another such factor could be the appellant's efforts at rehabilitation between the offence and the date of sentencing. If, in the end, a sentencing judge is satisfied that it is unnecessary to impose an SVO designation to achieve the purpose of holding "a young person accountable . . . through the imposition of just sanctions that have meaningful consequences", it seems to me that it would be open to the sentencing judge to decline to make an SVO designation. [See Note 7 below] (ii) The sentencing judge erred in failing to make an SVO designation

[81] In his SVO ruling, the sentencing judge concluded that the victims of these offences suffered serious bodily harm in the form of serious psychological injuries but that there was an insufficient nexus between the respondent's conduct and that harm to meet the threshold for an SVO designation. At least in relation to the January 27, 2007 offences, I conclude that the sentencing judge erred in failing to make an SVO designation.

[82] In reading the sentencing judge's reasons for his SVO ruling, it appears that the conduct that led him to infer psychological harm sufficient to meet the threshold of serious bodily harm was pointing the sawed-off shotgun at the victims:

Again, I am dealing with admitted facts that include having a shotgun put to a person's head. I accept that I can indeed draw the inference that the type of trauma that would flow from that fits the definition of [serious bodily harm].

[83] However, despite the sentencing judge's finding in his SVO ruling of an "insufficient nexus" between the respondent's actions and the conduct that caused serious bodily harm, it is apparent from his reasons for sentence that, at least in relation to the January 27, 2007 incident, the sentencing judge was satisfied that [page20 ]the respondent's actions amounted to aiding his fellow assailant in committing offences that caused serious bodily harm:

I must also factor in this youth's degree of participation in the two incidents, the second of which more clearly demonstrates direct participation. I find the harm done to the victims was both intentional and foreseeable, if perhaps not as much for this defendant in the first incident, clearly so in the second, where he knew of what his colleagues were capable. (Emphasis added)

[84] Accordingly, based on the sentencing judge's reasons for sentence, the threshold for making an SVO designation was clearly met in relation to the second set of offences.

[85] Moreover, as the sentencing judge found that the harm done to the victims in the second set of offences was "both intentional and foreseeable", foreseeability concerns could not have formed the basis for exercising his discretion not to make an SVO designation.

[86] In his SVO ruling, the sentencing judge gave no other reason for declining to exercise his discretion to make an SVO designation in relation to the second set of offences. However, to the extent that his reasons for sentence may indicate that he declined to exercise his discretion because he was satisfied that a deferred custody sentence would satisfy the purposes of youth sentencing in the circumstances, and that an SVO designation was therefore unwarranted, I would hold this exercise of discretion to be unreasonable.

[87] Due to the operation of s. 42(2)(p), the maximum available deferred custody sentence was a sentence of six months' duration (less credit for pre-sentence custody). Particularly having regard to the fact that the January 27, 2007 incident was the second occasion in a period of just over a week that the respondent was involved in a violent robbery involving the use of a sawed-off shotgun, a deferred custody sentence was simply insufficient to hold the respondent accountable for his conduct -- conduct that on the sentencing judge's findings was a significant contributing cause of serious psychological trauma to at least one of the victims of the January 27, 2007 incident.

[88] I reach this conclusion even taking account of the positive steps the respondent took towards his rehabilitation following his arrest, the opinion expressed in both the pre- sentence report and the s. 34 assessment that he has a relatively low risk of re-offending, and the concerns expressed in the s. 34 assessment that a custodial disposition could expose him to more delinquent associates and therefore have a negative impact on his rehabilitation.

[89] In addition to reducing overuse of custody for non- violent young persons, the YCJA has, as one of its purposes, holding [page21 ]young persons accountable for their offences by imposing meaningful consequences. Further, one of the principles of youth sentencing is that the sentence "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). As I have said, in my opinion, the deferred custody sentence imposed by the sentencing judge was simply insufficient to hold the respondent accountable for the extremely serious January 27, 2007 set of offences.

[90] I am also inclined to the view that the SVO threshold was met in relation to the first set of offences. It was undisputed that the appellant knew his cohorts in both sets of offences were armed with a sawed-off shotgun. In these circumstances, it appears that the appellant was a party to underlying offences that caused serious bodily harm.

[91] To the extent that the sentencing judge "declined to exercise his discretion" to make an SVO designation based on the insufficient nexus test, he was in error. There is no discretion involved in determining whether the SVO threshold, as set out in the SVO definition, is satisfied.

[92] That said, based on his reasons for sentence, it appears that the sentencing judge may have declined to exercise his discretion to make an SVO designation in relation to the first set of offences because he was not satisfied the appellant was actually aware of what might unfold. Given my conclusion on the second set of offences and the impact that will have in relation to the global sentence imposed, I consider it unnecessary to review that determination.

[93] In the result, I would set aside, in part, the sentencing judge's ruling in which he dismissed the Crown's SVO application, and I would substitute an order designating the January 27, 2007 offences as serious violent offences. As a result of this finding, the deferred custody sentence for the January 27, 2007 offences amounted to an illegal sentence and it is therefore necessary to revisit the global sentence that was imposed.

[94] Although approximately 16[cents] months had elapsed between the date on which the respondent was sentenced and the hearing date of this appeal, we were provided with no information about his current status.

[95] In these circumstances, although I think the two-year custodial sentence originally proposed by the sentencing judge was a reasonable global sentence, it seems to me that the interests of justice require that the matter be remitted to the sentencing judge to permit further evidence to be adduced concerning the respondent's circumstances in the intervening period. [page22 ] VII. Conclusion

[96] In the result, I would allow the appeal, make an SVO designation for the January 27, 2007 offences, set aside the global deferred custody and probation sentence imposed by the sentencing judge, and remit the matter to the sentencing judge to complete the sentencing. The terms of the DNA order and weapons prohibition imposed by the sentencing judge shall remain in full force and effect.

Appeal allowed. APPENDIX 'A' Youth Criminal Justice Act, S.C. 2002, c. 1

Preamble . . . . .

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

2(1) The definitions in this subsection apply in this Act. . . . . .

"serious violent offence" means an offence in the commission of which a young person causes or attempts to cause serious bodily harm. . . . . .

3(1) The following principles apply in this Act: (a) the youth criminal justice system is intended to (i) prevent crime by addressing the circumstances underlying a young person's offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public; (b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (i) rehabilitation and reintegration, [page23 ] (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time; (c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and (d) special considerations apply in respect of proceedings against young persons and, in particular, (i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. . . . . . [page24 ]

38(1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(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; and (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.

(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. [page25 ]

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 failed to comply with non- custodial sentences; (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 findings of guilt 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.

(2) If any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (a) the alternatives to custody that are available; (b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and (c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances. . . . . .

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: (a) reprimand the young person; (b) by order direct that the young person be discharged absolutely, if the court considers it to be in the best interests of the young person and not contrary to the public interest; (c) by order direct that the young person be discharged on any conditions that the court considers appropriate and may require the young person to report to and be supervised by the provincial director; (d) impose on the young person a fine not exceeding $1,000 to be paid at the time and on the terms that the court may fix; [page26 ] (e) order the young person to pay to any other person at the times and on the terms that the court may fix an amount by way of compensation for loss of or damage to property or for loss of income or support, or an amount for, in the Province of Quebec, pre-trial pecuniary loss or, in any other province, special damages, for personal injury arising from the commission of the offence if the value is readily ascertainable, but no order shall be made for other damages in the Province of Quebec or for general damages in any other province; (f) order the young person to make restitution to any other person of any property obtained by the young person as a result of the commission of the offence within the time that the court may fix, if the property is owned by the other person or was, at the time of the offence, in his or her lawful possession; (g) if property obtained as a result of the commission of the offence has been sold to an innocent purchaser, where restitution of the property to its owner or any other person has been made or ordered, order the young person to pay the purchaser, at the time and on the terms that the court may fix, an amount not exceeding the amount paid by the purchaser for the property; (h) subject to section 54, order the young person to compensate any person in kind or by way of personal services at the time and on the terms that the court may fix for any loss, damage or injury suffered by that person in respect of which an order may be made under paragraph (e) or (g); (i) subject to section 54, order the young person to perform a community service at the time and on the terms that the court may fix, and to report to and be supervised by the provincial director or a person designated by the youth justice court; (j) subject to section 51 (mandatory prohibition order), make any order of prohibition, seizure or forfeiture that may be imposed under any Act of Parliament or any regulation made under it if an accused is found guilty or convicted of that offence, other than an order under section 161 of the Criminal Code; (k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years; (l) subject to subsection (3) (agreement of provincial director), order the young person into an intensive support and supervision program approved by the provincial director; (m) subject to subsection (3) (agreement of provincial director) and section 54, order the young person to attend a non-residential program approved by the provincial director, at the times and on the terms that the court may fix, for a maximum of two hundred and forty hours, over a period not exceeding six months; (n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period -- which is one half as long as the first -- be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, [page27 ]the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order; (o) in the case of an offence set out in subparagraph (a)(ii), (iii) or (iv) of the definition "presumptive offence" in subsection 2(1), 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; (p) subject to subsection (5), 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; (q) order the young person to serve a sentence not to exceed (i) in the case of first degree murder, ten years comprised of (A) 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, and (ii) in the case of second degree murder, seven years comprised of (A) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed four years from the date of committal, and (B) a placement under conditional supervision to be served in the community in accordance with section 105; (r) subject to subsection (7), make an intensive rehabilitative custody and supervision order in respect of the young person (i) that is for a specified period that must not exceed (A) two years from the date of committal, or (B) if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of committal,

and that orders the young person to be committed into a continuous period of intensive rehabilitative custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder under conditional supervision in the community in accordance with section 105, [page28 ] (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, and (iii) that is for a specified period that must not exceed, in the case of second degree murder, seven 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 four 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; and (s) impose on the young person any other reasonable and ancillary conditions that the court considers advisable and in the best interests of the young person and the public. . . . . .

42(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly.

Notes

Note 1: Section 21 of the Criminal Code, R.S.C. 1985, c. C-46 eliminates the common law distinctions between principals and accessories and puts perpetrators of crimes and those who aid or abet them on the same legal footing, labelling them all "parties" to the crime: R. v. Maciel, 2007 ONCA 196, [2007] O.J. No. 1034, 219 C.C.C. (3d) 516 (C.A.), at para. 85. Nonetheless, as a matter of ordinary usage, the term "party" is often used to denote parties to an offence who are not principals. As a matter of convenience, unless I specifically indicate otherwise, throughout these reasons I will use "party" to mean a party to an offence who is not a principal.

Note 2: See Appendix 'A' for the full text of all YCJA provisions referred to in these reasons.

Note 3: Prior to R. v. B. (D.) (2008), 2008 SCC 25, 92 O.R. (3d) 399, [2008] 2 S.C.R. 3, [2008] S.C.J. No. 25, the result of a third SVO designation was that a youth court was required to impose an adult sentence unless the young person could show that the youth sentence was sufficient to hold him or her accountable. The Supreme Court concluded that the reverse onus was unconstitutional.

Note 4: In R. v. Harbottle, 1993 71 (SCC), [1993] 3 S.C.R. 306, [1993] S.C.J. No. 58, the Supreme Court of Canada confirmed that, in cases of constructive first degree murder under what is now s. 231(5) of the Criminal Code, the phrase "when the death is caused by that person" includes both perpetrators and those who assist in the murder, where they are a "substantial cause" of the victim's death. "Substantial cause" means that a person's acts must have been an essential, substantial and integral part of the killing: R. v. Nette.

Note 5: In R. v. D. (C.); R. v. K. (C.D.), Bastarache J. adopted a narrow interpretation of the term "violent offence", which is an undefined term in the definition section of the YCJA. Particularly because commission of a violent offence is one of the four gateways to custody under the Act, he concluded it was important to ensure that that term not be interpreted too broadly, as that would be contrary to the object and scheme of the Act, and the intention of Parliament, in attempting to reduce over-reliance on custodial sentences for young offenders.

Similarly, in R. v. T. (V.J.), at para. 19, Steel J.A. adopted the comments of Prof. Nicholas Bala in Youth Criminal Justice Law (Toronto: Irwin Law, 2002) to the effect that the definition of a serious violent offence is intended to be relatively narrow:

It is, however, submitted that the definition in section 2 [serious violent offence] of the YCJA is intended to be relatively narrow, with the serious violent offence being distinguished from the ordinary violent offence. The impact of such a determination on the life of a youth may be profound and, consequently, the discretion to make such determinations should be exercised with caution.

Note 6: As was observed by Blair J.A. in R. v. S. (J.) (2006), 2006 22101 (ON CA), 81 O.R. (3d) 511, [2006] O.J. No. 2654 (C.A.), at para. 45, the "thrust of the sentencing regime under the Act is that options other than custody are to be given priority and that custody is a last resort". Moreover, s. 39 "reinforces this concept by prohibiting a youth court justice from committing a young person to custody under the youth sentences provisions of s. 42 unless one of the four gateway[s]" to custody, set out in s. 39(1), applies.

Note 7: See, contra, R. v. F. (E.), [2007] O.J. No. 1000, 2007 ONCJ 113, at para. 47, in which MacLean J. held that rehabilitative successes should not be taken into account in determining whether to exercise the discretion.