WARNING 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not apply (a) in a case where the information relates to a young person who has received an adult sentence; or (b) [Repealed, 2019, c. 25, s. 379] (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose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138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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: 20230524 DOCKET: C67403

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

His Majesty the King Respondent

and

S.B. Appellant

Counsel: Dirk Derstine, for the appellant Craig Harper, for the respondent

Heard: November 1, 2022

On appeal from the sentence imposed on June 10, 2014 by Justice Ian V.B. Nordheimer of the Superior Court of Justice.

Tulloch J.A.:

A. OVERVIEW

[1] On November 17, 2010, shortly after 3:30 p.m., the sixteen-year-old victim was murdered in the west stairwell at 135 Neptune Drive in the City of Toronto. He was shot in the head twice at close range, execution-style.

[2] The appellant, SB, fired the gun. Two of the victim’s friends, TF and SHB, were present during the killing. MW arrived shortly after the killing. All of these individuals were the same age as the victim – sixteen years old.

[3] The youth court judge convicted SB and his co-conspirators, MW and TF, of first degree murder. While SB was found to be the shooter, MW and TF helped plan the murder. SHB was acquitted, as he was “simply in the wrong place at the wrong time”.

[4] At the sentencing hearing for all three youths, the Crown applied under s. 64(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”) for the young offenders to be sentenced as adults. The youth court judge allowed this application. SB, MW, and TF were given life sentences with ten years’ parole ineligibility, pursuant to s. 745.1(b) of the Criminal Code, R.S.C., 1985, c. C-46.

[5] SB now appeals his sentence on the basis that the youth court judge: (1) erred in finding that SB was the person who fired the gun, and inappropriately relied on this as an aggravating factor in sentencing; (2) gave insufficient reasons for sentence; and (3) failed to consider the presumption of diminished moral culpability that applies to young offenders (“the Presumption”) before imposing an adult sentence on SB.

[6] For the reasons that follow, I would dismiss the sentence appeal. While I agree that the youth court judge erred in failing to apply the Presumption, I would not vary the original adult sentence imposed as I have reached the same outcome upon re-sentencing.

B. Factual Background

(1) Events Leading Up to the Shooting

[7] The victim was on bail for two separate sets of drug offences. As part of his bail conditions, he was living with a close friend of his mother’s in Brampton. On the day in question, the victim travelled to Toronto with F, the daughter of his mother’s friend, to appear in court for his drug offences, after which he planned to stay the night with his mother at 135 Neptune.

[8] Shortly after the victim arrived at his mother’s apartment, TF came to the door. Both of them went into the hallway where some other acquaintances were for about an hour. At some point during this time, SHB and two other males arrived. The victim returned to his mother’s apartment and asked F for her cell phone. After that, the victim told his mother he was leaving.

[9] Some five to ten minutes later, SHB’s mother called to ask the victim’s mother if she had heard gunshots. They went to investigate. They walked to the local school and found nothing. However, upon returning to 135 Neptune, they saw a girl run outside screaming. They discovered the victim’s body on the ground in the west stairwell.

(2) SB, MW, and TF’s Involvement in the Shooting

[10] Text messages between SB, MW, and TF were adduced at trial to show that the three individuals had collectively planned the murder.

[11] The youth court judge found that SB played a central role as the leader of the event, both before and after it occurred. Prior to the shooting, SB had texted back and forth with TF to update him on his location. He told TF to let him into the complex. He also told TF to keep the victim in the stairwell until he arrived. SB texted with MW during this time as well, as MW had introduced SB to TF in the first place.

[12] After the shooting, all three individuals were involved in covering up the murder. Once again, SB played a central role in this operation. He passed the gun to TF as they were leaving the stairwell and told him to delete all of their text messages. TF hid the gun in his apartment and subsequently got his mother to dispose of it. SB also told MW to blame the victim’s killing on the people from the “Jungle” – a nearby neighbourhood that had a rivalry with people from Neptune.

[13] In addition, since the victim’s friend SHB was present when SB shot him, SB was worried that SHB knew his name and could provide evidence that would link him to the killing. As such, he expressed an intention to kill SHB and his mother and sister. Shortly before SB’s trial began, police found a handwritten threat letter in another individual’s car. This letter was written by SB, and it instructed the individual to arrange for the killing of three of the Crown’s witnesses: (1) the victim’s friend F, who had seen SB’s face; (2) SB’s then girlfriend; and (3) SB’s girlfriend’s best friend. Finally, several days after the murder, TF expressed his concern to MW that SB was trying to kill him.

C. SENTENCING History

(1) Sentencing Hearing for SB, MW, and TF

[14] At the sentencing hearing for SB, MW, and TF, the Crown applied under s. 64(1) of the YCJA for the appellants to be sentenced as adults. The youth court judge allowed this application. SB, MW, and TF were given life sentences with ten years’ parole ineligibility, pursuant to s. 745.1(b) of the Criminal Code.

[15] In deciding to impose an adult sentence, the youth court judge looked to the three factors listed under s. 72(1) of the YCJA, as it existed at the time of the offences [1]: (1) the seriousness and circumstances of the offence; (2) the age, maturity, character, background, and previous record of the young person; and (3) any other factors that the court considers relevant. The youth court judge explained that a youth sentence would be imposed if it “would have sufficient length to hold the young person accountable for his or her offending behavior”. The youth court judge went on to note that the burden on the Crown “is not a heavy one”, as it simply “imposes an onus of satisfying the court, nothing more”, relying on R. v. O.(A.), 2007 ONCA 144, 218 C.C.C. (3d) 409, at para. 38.

[16] Looking at the facts of the present case as they relate to SB, the youth court judge found that a youth sentence would not be sufficient to hold SB accountable. His reasoning is summarized below.

(a) Seriousness and Circumstances of the Offence

[17] This was “the most serious of offences” as it involved the murder of a sixteen-year-old boy, execution-style, in his own building. Such an act “is both inexplicable and inherently alarming.” Importantly, SB was the one who shot the victim.

(b) The Age, Maturity, Character, Background and Previous Record of the Youth

[18] The youth court judge recognized that SB had difficult relations with his family as a child and began to gravitate towards negative peers at a young age. SB began getting in trouble with law enforcement at fourteen years old. During his time in custody, he completed high-school and some programming.

[19] However, SB had multiple incident reports while in custody. These included assaulting other inmates and threatening the staff. SB was described by the staff as a “skilled behind the scenes manipulator” who tries to run his unit. The youth court judge found these factors concerning, especially when viewed in conjunction with SB’s expressed intention to kill SHB and his family in retaliation for SHB’s presence at the murder scene.

(c) The Interests of Society

[20] According to the youth court judge, a young person’s interest in rehabilitation and reintegration must be balanced against the societal interest in ensuring young persons who commit serious crimes are subject to “meaningful penalties that not only hold the young person accountable for his or her actions but will also assist in the protection and safety of the community at large.”

[21] Overall, the totality of the evidence led the youth court judge to conclude that the only appropriate sentence to impose on SB is an adult sentence. There was little evidence that SB was capable of being rehabilitated. His behaviour in custody did not suggest any manifest change in his attitude or approach.

(2) Subsequent Sentence Appeal by MW and TF

[22] MW and TF successfully appealed their sentences to this court in 2017: see R. v. W.(M.), 2017 ONCA 22, 134 O.R. (3d) 1, leave to appeal refused, [2017] S.C.C.A. No. 109. This court found that the youth court judge failed to properly apply the law on the Intensive Rehabilitative Custody and Supervision (“IRCS”) Program. This was grounds for this court to intervene and decide the sentence for MW and TF de novo. In doing so, this court found that the Crown had not rebutted the Presumption with respect to either of the appellants, and a youth sentence would be of sufficient length to hold both individuals accountable. Consequently, MW and TF were sentenced under the provisions of the YCJA with an IRCS order.

D. ISSUES

[23] SB appeals his sentence imposed on the basis that the youth court judge made three errors. First, he incorrectly found that SB was the shooter, and relied on this as an aggravating factor in his sentencing analysis. Second, the youth court judge’s reasons were insufficient. Third, the youth court judge, in assessing whether to impose an adult sentence, failed to consider the Presumption that SB is entitled to.

[24] I would grant leave to appeal SB’s sentence but dismiss the sentence appeal. I accept that the youth court judge erred in failing to apply the Presumption. However, as I will explain below, applying the principles of sentencing afresh to the facts of this case would result in the same sentence imposed by the youth court judge. As such, I would not vary the original sentence.

E. ANALYSIS

(1) Did the youth court judge err in finding that SB was the shooter and relying on this as an aggravating factor at sentencing?

[25] In challenging the youth court judge’s finding that SB was the shooter, the appellant is not contesting the conviction of first degree murder. Rather, he submits that the sentencing judge erroneously relied on this fact as an aggravating factor when determining a fit sentence for SB.

[26] Before a relevant fact can be relied on at sentencing, the Crown must have established its existence beyond a reasonable doubt pursuant to s. 724(3)(e) of the Criminal Code. The Supreme Court of Canada in R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 415, further made it clear that standard of proof required to make out facts at sentencing is the same as the standard of proof to convict.

[27] As this case involves circumstantial evidence, the test for reasonable inferences from R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 applies. The appellant recognizes that the youth court judge did not have the benefit of the Supreme Court of Canada’s decision in Villaroman, which was released after this case was decided. Nevertheless, the same standard of proof applies. As such, the youth court judge must have been satisfied beyond a reasonable doubt that the only reasonable inference to be drawn from the evidence was that SB was the shooter.

[28] The appellant argues that this was not the only reasonable inference from the evidence, and this error impacted SB’s sentence. More specifically, the appellant contends that SB could have been the leader of the murder, but not the actual shooter. The youth court judge found that TF, with the assistance of his mother, disposed of the gun. As such, TF could have been the one who fired it. Furthermore, the youth court judge relied in part on the surveillance footage to find that SB shot the victim and then passed the gun to TF. However, the appellant submits that the quality of the surveillance videos was poor. Because of its frailty, no weight should have been given to it.

[29] I would not give effect to the appellant’s submissions. I find no error in principle or palpable and overriding error in the youth court judge’s analysis. The youth court judge was satisfied that SB was the shooter based on a “number of factors”, including those which he expressly outlined, such as the following facts: SB was the leader of the murder and was prepared to have anyone connected with it killed, SB sent a text message to TF following the murder in relation to SHB stating “Yo I should of drop him”, and TF expressed a concern that SB was trying to kill him.

[30] While the youth court judge did not have the benefit of the Supreme Court of Canada’s decision in Villaroman, I find that he applied the appropriate legal principles. It is clear that he considered the totality of the evidence before concluding that the only reasonable inference available was that SB was the shooter. As such, it was not an error for the youth court judge to rely on this fact as an aggravating factor when sentencing SB.

[31] I also disagree with the appellant that the youth court judge incorrectly applied a lower legal test to the circumstantial evidence. While the youth court judge said that it was “reasonable, if not compelling” that SB’s text message to TF regarding SHB meant he should have also killed SHB when he killed the victim, I am not persuaded that this means the youth court judge applied the wrong standard. His reasons for conviction in combination with his reasons for sentence, taken as a whole, demonstrate an awareness of the need to have every aggravating fact proven beyond a reasonable doubt.

[32] Accordingly, I would dismiss this first ground of appeal.

(2) Were the youth court judge’s reasons insufficient?

[33] Insufficiency of reasons can be a reversible error if the appellant demonstrates “either error or the frustration of appellate review”: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 79. However, an appellate court must not finely parse the trial judge’s reasons in a “line by line search for errors”: R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at paras. 13 and 33. As the Supreme Court of Canada reiterated in R. v. G.F., the task of appellate courts is much narrower: “[T]hey must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review”: at para. 69.

[34] The appellant submits that the youth court judge’s reasons were insufficient as he failed to mention key pieces of evidence, as well as address the Presumption. In my view, the heart of the appellant’s submissions on this issue goes to whether the youth court judge failed to address key youth sentencing principles. As I am prepared to find that the youth court judge did err in his sentencing analysis which will require this court to engage in a de novo analysis, it is unnecessary to address this ground of appeal.

(3) Did the youth court judge err by failing to address the Presumption before sentencing SB as an adult?

[35] Sentencing judges are afforded a great deal of deference in their decisions. Absent a sentence which is demonstrably unfit, or an error in principle that had an impact on the sentence, an appellate court cannot intervene: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41 and 44.

[36] SB appeals his sentence on the basis that the youth court judge erred in failing to apply the Presumption. This was one of the two alleged errors put before this court by counsel for SB’s co-accused, MW and TF, in R. v. W.(M.). However, in that case, it was unnecessary for this court to address the issue of the Presumption, as Epstein J.A. found that the youth court judge erred in his analysis of the IRCS program in relation to MW and TF: R. v. W.(M.), at para. 83. This error alone justified intervention by this court.

[37] Unlike his co-accused, SB did not complete a s. 34 psychological assessment and was therefore not eligible for an IRCS order. As a result, SB’s sentence appeal turns on the very issue which was left for another day by this court in R. v. W.(M.), namely, whether the youth court judge meaningfully considered the Presumption afforded to young offenders.

[38] Having reviewed the reasons of the youth court judge, I find that he failed to consider and apply the Presumption to SB. I am aware that trial counsel agreed that the 2012 amendments to s. 72(1) of the YCJA, which expressly codified the Presumption should not apply in this case as the offence pre-dated the amendments. However, the Supreme Court of Canada in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3 established that the presumption of diminished moral culpability is a principle of fundamental justice: at para. 95. As such, there should be no offence for which a youth should be presumptively sentenced as an adult: R. v. D.B., at para. 70. Rather, in all circumstances, the Crown bears the onus of showing that the Presumption has been rebutted, and that a youth sentence under the YCJA would not be sufficient to hold the offender accountable for their criminal conduct: R. v. D.B., at para. 93. As the wording of the test for an adult sentence under s. 72(1) was amended to reflect the holding in R. v. D.B., the youth court judge ought to have turned his mind to this critical youth sentencing principle.

[39] The youth court judge’s reasoning for sentencing SB to an adult sentence does not mention the Presumption. As this court noted in R. v. W.(M.), at para. 83, the silence on this issue is concerning. The Crown submits that the youth court judge must be presumed to know the law. More specifically, the Crown argues that embedded in the youth court judge’s assessment of SB’s maturity is the finding that the Presumption was rebutted. I do not agree. The Presumption is not merely a common law requirement for youth sentencing; it is a principle of fundamental justice. The constitutionality of the adult sentencing regime under the YCJA relies on the proper consideration and application of the Presumption to cases such as SB’s. Given the importance of this principle, it was incumbent on the youth court judge to identify and discuss the Presumption in his reasons. I cannot take his silence to mean that he did. This is an error in principle which justifies intervention by this court.

[40] In light of this error, I will conduct the sentencing analysis afresh. In doing so, I must first address the Crown and the appellant’s fresh evidence applications for this sentence appeal.

(a) Fresh Evidence Applications

[41] Both the appellant and the Crown have applied to admit fresh evidence on appeal under s. 683 of the Criminal Code.

[42] The appellant’s proposed fresh evidence on his sentence appeal consists of an Enhanced Pre-Sentence Report (“EPSR”). This EPSR was prepared by Jacquie Pemberton, a Registered Social Worker with a Master’s Degree in Social Work, on behalf of the Sentencing and Parole Project. The EPSR reviews SB’s personal background, experiences, and family circumstances up to the age of sixteen. It explains his troubled relationship with his family and upbringing in a drug and crime-ridden neighbourhood, where turf wars frequently took place. SB began gravitating to negative role-models at a young age, and his involvement with the criminal justice system can be traced back to when he was twelve.

[43] The Crown seeks to adduce fresh evidence regarding SB’s convictions imposed after this sentence. More specifically, the Crown seeks to admit SB’s subsequent criminal record, the transcript from SB’s conviction in July 2014 where he pleaded guilty to counselling to commit murder of three Crown witnesses and willingly attempting to intimidate a justice system participant, along with the transcript from SB’s conviction in February 2017 where he pleaded guilty to assault with a weapon.

[44] The court has broad discretion to receive fresh evidence on appeal where “it considers it in the interests of justice” under s. 683(1) of the Criminal Code. Specifically with respect to sentence appeals, s. 687(1) of the Criminal Code allows the court to receive evidence it thinks “fit to require or receive”. The Palmer test structures the court’s discretion in making this determination: R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at para. 20; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 29. The test sets out four criteria concerned with due diligence, relevance, credibility, and impact on the result: Palmer v. The Queen, [1980] 1 S.C.R. 759.

[45] In my view, the EPSR meets the Palmer criteria, but the Crown’s fresh evidence of SB’s subsequent convictions in 2014 and 2017 does not. I shall address each piece of evidence below.

(i) SB’s Enhanced Pre-Sentence Report

[46] In R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, this court held that social context evidence relating to an offender’s life experiences may be used, where relevant, to mitigate the offender’s degree of responsibility for the offence. Alternatively, in other cases, such evidence can be used to help craft a sentence that best serves the purposes of sentencing: Morris, at para. 13. A causal link between the existence and impact of anti-Black discrimination and the offender is an overly stringent threshold that was expressly rejected by this court. Instead, Morris established that there must simply be “some connection” between the overt and systemic racism and the circumstances that are said to explain or mitigate the criminal conduct in issue: at paras. 96-97.

[47] That connection exists here. The EPSR highlights overarching racial and cultural factors which have played a role in shaping SB’s life. As this court wrote in Morris, at para. 91: “There can be no doubt that evidence on sentencing, describing the existence and effect of anti-Black racism in the offender’s community and the impact of that racism on the offender’s circumstances and life choices is part of the offender’s background and circumstances”. As I will explain later, this social context evidence is especially relevant in youth sentencing, as it assists the court under both prongs of the test in s. 72(1) of the Criminal Code.

[48] Had the EPSR been adduced during the original hearing, it could have affected the result. While the information contained in the EPSR report was available at sentencing, it was not common practice to adduce such information at the time. Given that such reports are a relatively new development and have only started to become more common in sentencing over the past few years, I am satisfied that the appellant acted with due diligence. I also accept the appellant’s submission that EPSRs differ from regular pre-sentence reports in that they are much more detailed and focus on the particular experiences of racialized Canadians.

[49] Finally, as the EPSR was prepared by a Registered Social Worker with a Master’s Degree in Social Work and the Crown did not dispute her credibility, I find that it meets the credibility threshold.

[50] Consequently, the appellant’s application to admit the EPSR as fresh evidence is granted.

(ii) Crown’s Fresh Evidence of SB’s Subsequent Convictions

[51] In contrast, the Crown’s fresh evidence concerning SB’s subsequent convictions in 2014 and 2017 is not admissible. I reach this conclusion for two reasons.

[52] First, the 2014 and 2017 convictions would not have changed the outcome of SB’s sentencing hearing. These convictions were entered after SB was sentenced for first degree murder. Their existence would not – and cannot – have affected the youth court judge’s assessment of the appropriate sentence for the murder conviction. As this court observed in R. v. Reeve, 2020 ONCA 381, 151 O.R. (3d) 65: “[T]he appellant can only be punished for the conduct that he was convicted of. He cannot be punished, or be seen to be punished, for conduct that is alleged to have occurred a year after his sentence was imposed”: at para. 53.

[53] Second, the Crown alleges that the 2014 and 2017 convictions are relevant to the sentencing appeal as they highlight the limitations of the EPSR, which had been silent on these offences. I disagree. The limitations of the EPSR are clearly noted in the report itself. In particular, the EPSR notes that it “is not a detailed review of [the appellant’s] circumstances that would account for the period in between the commission of the offence and his sentencing in 2014.” Consequently, it is unnecessary to admit other fresh evidence to highlight this same limitation.

[54] In short, the Crown cannot ride on the coattails of the appellant’s fresh evidence application in order to submit their own fresh evidence – especially when this evidence did not exist at the time of the original sentencing hearing. As the Supreme Court of Canada wrote in R. v. Sipos, appellate courts must respect the importance of finality. Absent the Palmer criteria being met, this court cannot routinely decide sentence appeals “on the basis of after-the-fact developments”: R. v. Sipos, at para. 30.

[55] Accordingly, the Crown’s fresh evidence application is denied.

(b) The Appropriate Sentence for SB

[56] Where a young offender is convicted of first degree murder and sentenced as a youth under the YCJA, the maximum sentence is ten years. This statutory maximum is comprised of a committal to custody that cannot exceed six years, and a placement under conditional supervision to be served in the community for the balance of the sentence: YCJA, s. 42(2)(q).

[57] On the other hand, if a young person is convicted of first degree murder as an adult under the Criminal Code, they will receive a life sentence: Criminal Code, s. 235(1). Given that SB was sixteen at the time of the commission of the offence, he would be eligible for parole after ten years if sentenced as an adult pursuant to s. 745.1(b) of the Criminal Code.

[58] Youth court judges must presumptively sentence persons under the age of eighteen at the time of the offence to a youth sentence. An adult sentence may only be imposed if the test under s. 72(1) of the YCJA has been met. As can be seen in the most current iteration of the test, there are two steps:

72 (1) The youth court shall order that an adult sentence be imposed if it is satisfied that (a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and (b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

[59] In R. v. W.(M.), at para. 95, this court cautioned that each step of the s. 72(1) test must be kept separate: “The two prongs address related but distinct questions and, although similar factors are applicable to both, there is not a complete overlap.” Consequently, in determining a fit sentence for SB, I shall address each step in turn. Ultimately, I will conclude that SB should be sentenced to an adult sentence for first degree murder.

(i) Has the Presumption been rebutted?

[60] I find that the Crown has successfully rebutted the Presumption. SB’s actions demonstrate a “level of maturity, moral sophistication, and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply” to him: R. v. W.(M.), at para. 98.

[61] Looking first to the crime itself, it cannot be disputed that SB was involved in a very serious offence. As this court recognized in R. v. W.(M.), murder affects society as a whole, but no one is more affected than the victim’s family and loved ones: at para. 111. The senseless taking of the victim’s life has left an unfillable void in their lives. Of course, I recognize that the seriousness of the offence and the circumstances of the offence do not automatically lead to the conclusion that an adult sentence should be imposed. The analysis of whether the Presumption has been rebutted must focus on the level of maturity displayed by the individual. Still, the severity of the crime helps to inform my analysis on this issue.

[62] SB’s involvement in the crime far surpassed that of MW and TF. Not only was he the leader and executioner of the murder, but SB also took initiative following the shooting to cover-up the crime. He directed MW to frame the people from the “Jungle”, and instructed TF to delete all the texts between them. Moreover, SB expressed an intention to kill SHB and his family because SHB was present at the scene, and could potentially connect SB with the murder.

[63] I now turn to SB’s personal circumstances at the time of the murder. I am cognizant that the EPSR, which has been admitted as fresh evidence, reviews SB’s personal background, experiences, and family circumstances up to the age of sixteen. SB had a troubled relationship with his family members, growing up with a single working mother and without a constant father figure. He suffered a significant loss at the age of eleven when his maternal cousin was shot at a funeral that they were attending for a mutual friend, for reasons that he believed were gang related.

[64] The report also discloses that SB and his family lived in poverty. Drug use and gun violence were common issues in his neighbourhood, and there were many turf wars. SB began gravitating towards older gang members at a young age and started running illegal errands for them at the age of twelve. As a result, SB also began to get in trouble with law enforcement around this time. He explained that he had been abused and carded by police officers, and he had an overall negative perception of the police and their role in the community. SB’s youth record includes assault, robbery, possession of marijuana for the purpose of trafficking, failure to comply with court orders, and now, first degree murder.

[65] As noted above, social context evidence of systemic anti-Black discrimination can offer an explanation for the commission of an offence that mitigates the offender’s personal responsibility and culpability: Morris, at para. 99. Under the first prong of the test to impose an adult sentence on a young person, the EPSR contextualizes my analysis of SB’s maturity and independent judgment at the time of the offence. SB’s upbringing in a crime-ridden neighbourhood with a lack of positive role models does, to an extent, explain his involvement in gangs and criminal behavior. As a youth, he was susceptible to grooming by gang members, who offered him a sense of belonging and comradery.

[66] However, the probative value of the EPSR is limited. While it may provide some explanation and context for SB’s poor choices, it does not suggest a lack of judgment or maturity. Viewed in light of the totality of the evidence, the EPSR does not outweigh all of the factors pointing to the opposite conclusion.

[67] Moreover, SB’s pre-sentence report demonstrates a lack of positive change or improvement in the time leading up to and during his trial. While SB did actively participate in programming, he was also the subject of some 40 behavioral incident reports throughout his time in pre-sentence custody. These incidents included possessing drugs, disobeying rules, assaulting other inmates, and threatening the staff. Staff members also expressed concerns that SB was running the unit in which he was housed as a “skilled behind the scenes manipulator”. When he did not successfully obtain what he wanted through pro-social means, he would become challenging, threatening, and aggressive.

[68] SB’s failure to show a willingness to change further supports the conclusion that his actions at the time of the murder were not guided by immaturity or lack of insight. Rather, he possessed the same developed degree of independent judgment and moral sophistication as he does today. Overall, I am satisfied that the Crown has rebutted the Presumption. I shall move on to the second step of the test under s. 72(1) of the Criminal Code.

(ii) Is a youth sentence sufficient to hold SB accountable?

[69] As this court stated in R. v. W.(M.), at para. 101: “The accountability analysis necessarily involves consideration of proportionality and rehabilitation, with rehabilitation being ‘subject to’ the proportionality principle”. Pursuant to s. 38(1) of the YCJA, consideration must be given to the sentence with the greatest chance of rehabilitating the young person. Moreover, s. 39(3) requires consideration of factors such as the young person’s attitude towards rehabilitation, their history with rehabilitative programs, and the availability of such programs: R. v. W.(M.), at para. 101.

[70] In the present case, I am satisfied that a youth sentence would not be sufficient to hold SB accountable.

[71] In coming to this conclusion, I am aware that SB has spent a significant portion of his young life in youth detention centers. This history, as well as SB’s interactions with law enforcement and the criminal justice system, is well documented in the pre-sentence report and EPSR. I am also cognizant that the circumstances surrounding SB’s upbringing were also difficult. Living in a drug and gang-ridden community undoubtedly had an impact on the trajectory of SB’s life, especially since he was exposed to such influences at a formative age.

[72] Nonetheless, imposing a youth sentence would not strike the appropriate balance between the objectives of accountability, rehabilitation, and the other sentencing principles set out in the YCJA as developed by the jurisprudence. As discussed above, despite spending a significant portion of time incarcerated, SB has not demonstrated a willingness to change. Moreover, to date, he has shown little insight into the consequences of his actions. I am not satisfied that a youth sentence – even the maximum sentence of ten years – would result in the rehabilitation needed to send SB safely back into society. Lastly, unlike MW and TF, SB did not complete a s. 34 psychological assessment which forecloses the possibility of imposing an IRCS order in conjunction with the youth sentence for him.

[73] Overall, in my view, it is necessary to impose an adult sentence to hold SB accountable for his actions. Such a sentence would provide the necessary time and opportunity for SB to demonstrate improvement, while protecting the public.

F. DISPOSITION

[74] Accordingly, I would grant leave to appeal the sentence, but dismiss the sentence appeal as I have reached the same outcome upon re-sentencing.

Released: May 24, 2023 “J.S.” “M. Tulloch J.A.” “I agree. Janet Simmons J.A.” “I agree. Grant Huscroft J.A.”

[1] At footnote 2 of his reasons, the youth court judge noted that counsel had agreed that s. 72(1) of the YCJA as it existed at the time of the offence should apply and not the version as amended in 2012.