THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.

Court of Appeal for Ontario

Date: 20210916 Docket: C66374

Judges: Pardu, Paciocco and Nordheimer JJ.A.

Between: Her Majesty the Queen Respondent

and

S.K. Appellant

Counsel: Laura Remigio, for the appellant Justin Reid, for the respondent

Heard: September 1, 2021 by video conference

On appeal from the sentence imposed on March 24, 2017 by Justice Lucia Favret of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant seeks leave to appeal from sentences imposed for offences related to four home invasion robberies. The offences were committed over a period of approximately two months when the appellant was 17 and 18 years old. He was sentenced to a total term of imprisonment of nine years broken down as follows:

• Adult sentences
  • Three counts of robbery, and one count of forcible entry, contrary to s. 73 of the Criminal Code, R.S.C. 1985, c. C-46 – seven years concurrent on each count
  • Possession of a loaded firearm without a serial number- two years consecutive to the robbery sentences
  • Possession of a firearm without a serial number – two years concurrent
  • Possession of cocaine – 30 days concurrent
• Youth sentence
  • Robbery – one year concurrent to adult sentence

[2] At the sentencing proceedings the Crown sought a global sentence of 12 years for the adult offences; the defence suggested six to seven years would be adequate. For the youth sentence the Crown sought one year concurrent and the defence advocated for a sentence of three to six months, also concurrent.

Nature of the offences

[3] The home invasions took place between November 2014 and January 2015.

[4] The first offence was committed when the appellant was 17 years old in November 2014. He and one other person entered L.’s apartment and the appellant “caged her” with his arms and legs around her on a couch. He asked her where she kept her money. After they obtained some money and her cell phone, they left the apartment. L. was not injured and no other violence was used.

[5] On January 3, 2015, four males, including the appellant, forced their way into Z.’s home. One of them, not the appellant, hit Z. on the head and kicked her several times. Another, again not the appellant, had an imitation firearm in his possession. While the culprits searched the apartment, Z. escaped and shouted for help. The four males left. They stole $200-$300, an iPhone, and the keys to her apartment. Surveillance video recorded the men leaving the residence, one of whom was the appellant.

[6] Three weeks later, H.W. woke to find a man (not the appellant) armed with a knife in her bedroom. He demanded money and held the knife to her cheek, cut her on the face, and placed a comforter over her head. The victim could feel a large amount of blood flowing from the cut on her cheek and cried out. The man ran out of her room. The males who entered her apartment were not initially masked but donned masks after entering the apartment. Surveillance recorded that the appellant was one of the males who entered her home.

[7] The next day, L. was expecting a visitor. Lobby camera footage showed the appellant using the buzzer system to get into the building, with three other men. When L. heard a knock at her door, she opened it and four men forced their way in. She was hit on the head, had a bag placed over her head and was beaten and dragged to the bathroom. Another male entered the bathroom brandishing a firearm and asked where her money was. One of the males sexually assaulted her. There was no evidence identifying the appellant as the one who assaulted her or used the firearm. The men left after gathering two cell phones, purses, jewelry, and money.

[8] On March 2, 2015, about five weeks after the last robbery, a search warrant executed at the appellant’s home uncovered a loaded handgun, with an obliterated serial number and 8.05 grams of cocaine.

Plea

[9] The appellant pleaded guilty to the offences on October 6, 2016. An agreed statement of facts outlined the circumstances of each of the offences.

Analysis

[10] The sentencing judge made errors in principle which had an impact on the sentences imposed, and accordingly it falls to this court to determine a fit sentence: see R v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41-44; R v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 25-27.

[11] The sentencing judge did not differentiate in the principles to be applied when sentencing a youth under the Youth Criminal Justice Act (“YCJA”), S.C. 2002, c. 1 as opposed to an adult. A youth sentence must be the least restrictive sentence possible, while still holding the young person accountable: YCJA, ss. 38(2) (d), (e). General deterrence is not a relevant factor when sentencing a young person. The sentencing judge was under the mistaken impression that there was a joint submission for a one-year custodial sentence for this offence. She indicated that she would deliver reasons on the youth sentence at a later date, but those reasons were never delivered.

[12] The appellant was a youthful first offender. When dealing with the adult offences, the sentencing judge referred to rulings from this court indicating that “ordinarily for youthful offenders, as for first offenders, the objectives of individual deterrence and rehabilitation are paramount.” She then went onto say that that principle did not apply because of the “aggravating feature of the home invasion.” That was a misreading of this court’s authorities: see e.g. R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 32; R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.). Where a term of incarceration must be imposed because of the nature of the offence, for a young first offender, the term “should be as short as possible and tailored to the individual circumstances of the accused.” R. v. Priest at p. 12. In R. v. Kwakye, 2015 ONCA 108, [2015] O.J. No. 707 (QL) this court noted that rehabilitation remains an important factor, when sentencing a young first offender on any offence, including manslaughter. R. v. Jacko, 2010 ONCA 452, 101 O.R. (3d) 1 provides another example: perpetrators of a serious home invasion had their sentences reduced on appeal to two years less a day and a conditional sentence in order to better reflect their rehabilitative potential.

[13] This is particularly important when sentencing a youthful first offender to a first penitentiary sentence. This court noted in R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at para. 36:

Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth. In my view, the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. The trial judge's repeated references to the need to send a message and his statement that the sentence was meant to deter others who resort to guns make it clear that general deterrence and to a less extent denunciation determined the length of the sentence. In my view, this error led the trial judge to impose an excessive sentence for the aggravated assault.

[14] The appellant had the support of his family and community. The sentencing judge failed to give adequate weight to the appellant’s rehabilitative potential.

[15] Finally, the sentencing judge erred when she found that it was an aggravating factor that the appellant deliberately used his baby-faced appearance to dupe the victims into opening their doors. This was not an argument advanced by the Crown, and the evidence did not support this conclusion. In effect, the sentencing judge used the appellant’s youth as an aggravating factor.

[16] These offences were in the nature of a spree, all committed before the appellant was subject to the sanction of imprisonment, when he was a youthful first offender. Fresh evidence bears out the rehabilitative potential the appellant has. He is now on parole and working. He pleaded guilty at an early opportunity and was remorseful for his actions.

[17] We would not interfere with the one-year concurrent youth sentence. The effect of that sentence is now spent. Pursuant to s. 82 of the YCJA, the appellant has been deemed never to have been found guilty of the youth offence, as that sentence was completed by March 24, 2018. Variation of that sentence would have no practical effect.

[18] We agree the offences were serious and merit a stiff sentence. Tailoring that sentence to the circumstances of this appellant, we are of the view that a global sentence of seven years, before credit for pre-sentence custody, would be adequate. That is still a very substantial jail sentence for a youthful first offender going to the penitentiary.

[19] We would vary the adult sentences imposed by the trial judge as follows:

1. Robbery Count 3, the appellant was a party to a robbery committed while a participant was armed with a restricted firearm. This attracts a minimum sentence of five years. We impose that sentence less credit for presentence custody of 605 days for 403 days actual presentence custody for a net sentence of 1220 days.
2. Robbery Counts 6, and 11, four years’ incarceration concurrent to the sentence on Count 3 on each count.
3. Count 7, forcible entry contrary to s. 73 of the Criminal Code. The Crown concedes that the seven years’ incarceration must be reduced, and we substitute a one-year sentence concurrent to the sentence on Count 3, as the maximum available sentence is not more than two years.
4. Count 22 possession of a loaded firearm contrary to s. 95(1) of the Criminal Code, we maintain the two-year consecutive sentence consecutive to Count 3.
5. Count 25 possession of firearm without a serial number, we maintain the two years concurrent to the sentence on Count 22.
6. Count 26, possession of cocaine, we maintain the 30 days concurrent to Counts 22 and 23.

[20] The victim fine surcharge is set aside, in light of R. v. Boudreault, 2018 SCC 58, [2018] S.C.R. 599.

[21] The other ancillary orders made by the sentencing judge are affirmed.

“G. Pardu J.A.”

“David Paciocco J.A.”

“I.V.B. Nordheimer J.A.”