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(b) [Repealed, 2019, c. 25, s. 379]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138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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

CITATION: R. v. I.M., 2023 ONCA 378

DATE: 20230526

DOCKET: C69422

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

His Majesty the King

Respondent

and

I.M.

Appellant

Nader R. Hasan, for the appellant

Benita Wassenaar and Caitlin Sharawy, for the respondent

Heard: October 31, 2022

On appeal from the conviction entered by Justice Irving W. André of the Superior Court of Justice, sitting with a jury, on February 28, 2019, and the sentence imposed on July 31, 2020.

Tulloch and Huscroft JJ.A.:

[1] The appellant was convicted of the first degree murder of seventeen-year-old S.T. following a youth court jury trial and sentenced as an adult to a term of life imprisonment with a ten-year period of parole ineligibility. He appeals his conviction and sentence.

[2] The appeal from conviction is dismissed for the reasons that follow. The application for leave to appeal sentence is granted, but the sentence appeal is dismissed.

BACKGROUND

[3] On January 24, 2011, S.T. was outside his home shovelling snow when at least four males, including the appellant, arrived, intending to rob him. A physical altercation ensued in which S.T. was fatally stabbed. Several men entered the victim's home. The first man to enter hit S.T.’s mother in the head twice with a gun. The second man to enter punched her and forced her to sit on a chair in an interior porch with her head between her knees. The men left the home when the victim's father and brother arrived.

[4] S.T.’s father and brother found him in an alleyway adjacent to his home, mortally wounded. He had suffered 12 stab wounds and 10 blunt force injuries. He had three significant wounds on the body: (i) a deep stab wound on the side of his nose, (ii) another to his back penetrating his right lung, and (iii) a third to the middle of his lower back entering his right kidney. No defensive-type injuries were present on S.T.’s forearms or hands. Dr. Toby Rose, a forensic pathologist, conducted an autopsy on the body and concluded that several possibilities could be derived from the lack of defensive-type injuries. First, S.T. may have been restrained when he was stabbed. Second, S.T. may have been unconscious because of blood loss when he was stabbed. Finally, S.T. may have been stabbed from behind.

[5] In May 2011, four men were arrested and charged with first degree murder. One was discharged following a preliminary inquiry. Three others were convicted following a jury trial in July 2015: Shawn Cargioli (first degree murder), Kendal Kamal (second degree murder), and Famien Morrisson (second degree murder). All were adults in January 2011.

[6] The appellant was not arrested until November 23, 2013. He was tried separately in youth court because he was under 18 years old at the time of the killing – he was seventeen years, five-months old.

[7] The appellant did not testify at trial. However, it was his position that S.T. was armed with a sword and cut the appellant’s hand with it soon after the group arrived. The appellant entered the home after this and did not participate in the attack on S.T. in the alleyway. Nonetheless, he conceded a common intention to rob S.T. and that he was therefore guilty of manslaughter.

[8] The appellant's blood was found at the front of and inside the victim's house, however, DNA testing did not reveal evidence of his blood in the alleyway where S.T. was killed or at the mouth of the alleyway.

[9] The Crown's position at trial was that the group came to S.T.’s home to rob him of firearms and that the appellant participated in the killing, either as a principal, as an aider, or by acting with a common unlawful purpose. Further, the Crown asserted that the murder was a first degree murder because it was committed in the course of an unlawful confinement (of either S.T. or his mother).

[10] G.D., who attended high school with the appellant, gave evidence implicating him in the killing. He testified that, on January 28, 2011, the appellant told him he had injured his hand while stabbing the victim and showed him a bag of bloody clothing that he wanted to dispose of. The appellant told G.D. that S.T. died like a gangster and had fought back with a knife. Evidence implicating the appellant also came from the victim's mother, who testified that five men entered her home after she heard a noise outside behind the kitchen (from the direction of the alleyway) and had called to the victim. When the men left, one was carrying a small sword that belonged to S.T. A sheath was found in the alleyway, but the sword was not found.

[11] Following the jury's verdict, the trial judge determined under s. 72 of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), that the appellant should be sentenced as an adult. He imposed a life sentence with no eligibility for parole for ten years.

ISSUES ON APPEAL

[12] The appellant raises the following issues on his conviction appeal:

1. Did the trial judge err in admitting the text message conversation between the appellant and Shawn Cargioli?

2. Did the jury reach an unreasonable verdict on first degree murder?

3. Did the trial judge err in failing to provide a Vetrovec warning in relation to G.D.?

4. Did the trial judge err in his instructions to the jury?

[13] On the sentence appeal, the appellant submits that the trial judge erred in sentencing him as an adult. Specifically, the appellant argues that the trial judge erroneously relied on aggravating factors that had not been proven beyond a reasonable doubt contrary to the rule from R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368 and R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96.

DISCUSSION

A. Conviction Appeal

(1) The trial judge did not err in admitting the text messages

[14] The appellant argues that a series of text messages between the appellant and a co-conspirator, Shawn Cargioli, concerning the appellant’s desire to purchase a firearm, should not have been admitted. The appellant says that there was no evidence that he obtained a firearm or that he used a firearm during the attempted robbery. The text messages, which contained racial epithets and street gang vernacular, were devoid of probative value. They were not relevant to a live issue at trial, the appellant says, because the appellant had already conceded his intention to rob S.T. that evening and that he was guilty of manslaughter based on a common intention to rob the victim. The appellant cites several cases in support of his position, including R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, leave to appeal refused, [2012] S.C.C.A No. 8; R. v. Blair; [2008] O.J. No. 2464 (S.C.); R. v. J.S.R. (2008), 2008 54304 (ON SC), 236 C.C.C. (3d) 486 (Ont. S.C.); R. v. Husbands, 2019 ONSC 1945, 372 C.C.C. (3d) 308; R. v. Kokotailo, 2019 BCSC 1868. The appellant adds that even if the text messages had any probative value, it was outweighed by the risk of prejudice that admission created.

[15] We reject this argument.

[16] The text messages commenced three days before S.T. was killed and make clear the appellant’s pressing desire to obtain a firearm. They were relevant to the appellant's personal motive for participating in the robbery, a live issue at trial, because the appellant did not concede that the purpose of the robbery was to obtain firearms. It would have been misleading to exclude the text messages as they related to the appellant’s level of involvement and motive to ensure the robbery was successfully carried out. Trial counsel acknowledged that the text messages had some probative value but argued that their probative value was outweighed by the prejudice their admission would cause.

[17] The trial judge found that the potential for reasoning prejudice was inconsequential, but raised the risk of moral prejudice, as the text messages included racially derogatory language and supported an inference that the appellant was a person of bad character and may be intending to leave the country. However, he considered that the risk could be attenuated by redactions, along with mid-trial and final instructions. This was a discretionary call that is entitled to deference. The trial judge’s mid-trial and final instructions cautioned the jury about relying on the text messages to conclude that the appellant was a person of bad character likely to have committed the offence, and specifically cautioned the jury concerning racially derogatory language in the text messages. He instructed the jury that the text messages were to be used for the limited purpose of assessing the appellant’s motive for involvement in the robbery and to show his state of mind, as it was relevant to the issue of intent, and reiterated that they could not be used to conclude that the appellant had a propensity to commit crimes. These instructions, which were discussed with counsel, were adequate to address any possible prejudicial effect. Nothing more was required.

(2) The jury did not reach an unreasonable verdict on first degree murder

[18] The appellant argues that the verdict is unreasonable because none of his blood was found in the alleyway. No forensic or physical evidence ties him to the alleyway. The trail of blood from the appellant showed his movements and, in particular, established that he was injured in front of S.T.’s home, and then proceeded into the home and upstairs. The victim’s blood trail was found in the alleyway so there was no evidence he was stabbed at or near the front of the house. The appellant says that the only evidence tying him to the alleyway came from G.D., who testified that the appellant confessed his role in the stabbing. The appellant argues that the decision to prefer G.D.’s evidence over what he describes as science and common sense is unreasonable.

[19] We do not agree.

[20] The test for an unreasonable verdict is well established. The question is whether a properly instructed jury, acting judicially, could reasonably have rendered the verdict. In conducting this assessment, the court can “review, analyse and, within the limits of appellate disadvantage, weigh the evidence”: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; see also R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at paras. 74-80.

[21] As we have said, first degree murder was left with the jury because it was alleged that the murder was committed in the course of an unlawful confinement. Although the Crown argued that the appellant was the stabber, the jury was also invited to find the appellant guilty of first degree murder if it was satisfied that the appellant either restrained S.T. or restricted him while he was being stabbed. Contrary to the appellant’s submission, the absence of evidence of his blood from the alleyway did not establish conclusively that he was not present in the alleyway. The police evidence was that they could not do unlimited testing of the blood found in the alleyway, and some samples tested did not yield results. Thus, although it was open to the appellant to argue that he was not in the alleyway, the absence of evidence of his blood is not determinative of whether he was in the alleyway and participated in the stabbing.

[22] Moreover, the presence of S.T.’s jacket at the mouth of the alleyway, with the sleeves partly inside out and expirated blood stains on it, supported the restraint theory, meaning that the physical altercation might have begun before S.T. was in the alleyway.

[23] There was additional evidence supporting the verdict, including the evidence of S.T.’s mother that five males entered the house at about the same time, after S.T. had been stabbed. This evidence undermined the defence theory that the appellant entered the house and was not with the other men in the alleyway when the stabbing occurred. The cut on the appellant’s hand was also evidence capable of supporting an inference that he was involved in the stabbing, which, because of the number of injuries, was consistent with the involvement of multiple perpetrators. This was corroborated by the evidence of G.D., who testified that the appellant told him that he injured his hand when he stabbed S.T. multiple times.

[24] In summary, the verdict is amply supported by the evidence and is reasonable. This ground of appeal fails.

(3) The trial judge did not err in failing to provide a Vetrovec warning

[25] The appellant argues that the trial judge should have provided a Vetrovec warning concerning the evidence of G.D., emphasizing that his was the only evidence that the appellant was in the alleyway.[^1] According to the appellant, although G.D. was not a classic Vetrovec witness, such as an accomplice or a jailhouse informant, his evidence was essential to the Crown’s case and he had a motive to lie and credibility problems. These factors, in combination, were sufficient to require a Vetrovec warning in the circumstances of this case. G.D. had a motive to lie because S.T. was within his circle of friends – S.T. was G.D.’s friend’s sister’s boyfriend, and a friend of G.D.’s friend Daniel. Moreover, G.D. believed he might be paid by the police. His credibility problems included a youth record for possessing a prohibited firearm. According to the appellant, G.D.’s evidence was riddled with inconsistencies and implausibility.

[26] We do not agree that a Vetrovec warning concerning G.D.’s evidence was mandatory in the circumstances of this case, and we are satisfied that the trial judge’s jury instructions were sufficient to equip the jury to properly assess his evidence.

[27] In general, the decision whether to provide a Vetrovec warning is a discretionary one: R. v. Ranglin, 2018 ONCA 1050, 370 C.C.C. (3d) 477, at paras. 32-34. Trial counsel did not take the position that a Vetrovec warning was required. This is not determinative, but it provides strong support for the trial judge’s view that a Vetrovec warning was not required. The trial judge specifically asked the appellant whether he wanted a Vetrovec warning in respect of two other witnesses. He did not.

[28] G.D. was an important witness, but he was not the only witness linking the appellant to the stabbing. S.T.’s mother’s evidence supported the inference that the appellant was in the alleyway during the attack.

[29] Further, we do not regard G.D.’s relationship with a friend of the victim as requiring a Vetrovec warning. There is no evidence that G.D. personally knew the victim. Nor do we accept that G.D. was motivated by an offer of money. The police came to him and there is no evidence that he received any payment. His evidence was that he spoke to the police because his mother urged him to do the right thing.

[30] There were concerns about G.D.’s evidence, including his criminal record and some inconsistencies in his testimony, but we are satisfied that these concerns were properly addressed in the trial judge’s instructions concerning its frailties and confirmatory aspects. The trial judge listed important details G.D. had provided about the incident and invited the jury to consider how he came to know them. The trial judge also invited the jury to consider the likelihood that the appellant would essentially confess his role to G.D., who he did not know well, and identified a number of questions about G.D.’s testimony and various inconsistencies.

[31] The jury charge was provided to trial counsel in draft form and counsel provided feedback on how to address G.D.’s evidence. In our view, nothing more was required. This ground of appeal must be rejected.

(4) The trial judge did not err in his instructions to the jury

[32] According to the appellant, the trial judge:

1. failed to focus the jury’s deliberations on whether the appellant took part in the stabbing in the alleyway;

2. failed to relate the defence theory and the evidence to the elements of second degree murder;

3. misdirected the jury on the elements of murder based on a common intention;

4. erred in explaining the “essential, substantial and integral part” element of constructive first degree murder; and

5. erred in instructing the jury on evidence relating to the Harbottle causation standard.

[33] We see no merit in any of these grounds and address them briefly.

[34] We note that trial counsel participated in the process of crafting the charge and made no substantial objections to the charge as delivered. That is not determinative, of course, but it is significant.

[35] The first, fourth, and fifth alleged errors are related and may be addressed together. The trial judge instructed the jury that they had to be satisfied that the appellant did something that was an “essential, substantial and integral part” of the killing, and specifically, that the appellant actively participated in the killing. There is no Harbottle error.[^2] The Crown was not required to establish that the appellant was a stabber or one of the stabbers in order to prove first degree murder. The charge would also be proven if the appellant restrained or restricted the victim while he was being stabbed. The trial judge made clear that it was not sufficient to prove that the appellant was simply present or played a minor or no role in the stabbing. These instructions reveal no error. In both the charge and the decision tree, the trial judge focused the jury’s attention on the central question, “[d]id the appellant actively participate in the killing of [S.T.].” Finally, we are satisfied that the trial judge’s review of the evidence relating to the Harbottle standard was adequate.

[36] With respect to the second alleged error, the appellant parses the instructions, complaining that they “buried” critical exculpatory evidence. We do not agree. The trial judge specifically noted the absence of the appellant’s blood from the alleyway, the victim’s jacket, his two t-shirts, and the walls adjoining the alleyway. Nor do we accept that the trial judge wrongly emphasized G.D.’s evidence.

[37] The appellant points to a misdescription of the actual knowledge requirement under s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46, for murder (the third alleged error). Specifically, at one point in his instructions, the trial judge refers to what the appellant should have known (an objective standard) rather than what he actually knew (a subjective standard). The appellant acknowledges that the trial judge uses the correct language later in his instructions, but says he failed to correct his earlier error. The Crown acknowledges the error, but notes that the trial judge clearly instructed the jury that the Crown was required to prove beyond a reasonable doubt that the appellant had actual knowledge that murder would probably occur in the course of the robbery at several points in his instructions and gave one example that clearly illustrated this point.

[38] The single erroneous reference is not significant in the context of the instructions as a whole. In any event, as the Crown notes, the first degree murder verdict means that the jury was satisfied that the appellant’s actions were an “essential, substantial and integral” part of the killing: the jury concluded that the appellant actively participated in the murder.

[39] In summary, we are satisfied that the trial judge’s instructions satisfied the functional approach set out by Moldaver J. in R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9. Read as a whole, the instructions were responsive to the issues in play and enabled the jury to decide the case according to the law and evidence.

B. Sentence Appeal

(1) Reasons for sentence below

[40] After the jury convicted the appellant of first degree murder, the Crown brought an application under s. 64(1) of the YCJA to sentence the appellant as an adult. The trial judge allowed the Crown’s application. The appellant was sentenced to life imprisonment with a ten-year period of parole ineligibility pursuant to s. 745.1(b) of the Criminal Code.

[41] The trial judge set out the basic purpose and sentencing principles under the YCJA, namely, “to hold a young person accountable 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”: YCJA, s. 38.

[42] The trial judge then turned to the two-pronged test for an adult sentence under s. 72(1) of the YCJA. Section 72(1) provides that an adult sentence shall be imposed where the youth justice court is satisfied that: (a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and (b) a youth sentence would not be of sufficient length to hold the young person accountable for his or her actions.[^3]

[43] The trial judge noted that the onus under s. 72(1) is on the Crown. He went on to state that the standard “is neither proof beyond a reasonable doubt nor proof on a balance of probabilities” but rather “one of satisfaction after careful consideration by the court of all the relevant factors”, citing R. v. B.L., 2013 MBQB 89, 292 Man. R. (2d) 51, at para. 36 and R. v. O.(A.), 2007 ONCA 144, 84 O.R. (3d) 561, at para. 34.

[44] Under the first prong of the test under s. 72(1), the trial judge concluded that the Crown had rebutted the presumption of diminished moral blameworthiness. The trial judge considered the seriousness of the offence, the appellant’s principal role in the murder, the circumstances of the offence, the appellant’s close age to adulthood, his youth record, post-offence conduct and criminal antecedents. Based on this evidence, he determined that, at the time of the offence, the appellant “demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult”: R. v. W.(M.), 2017 ONCA 22, 134 O.R. (3d) 1, at para. 98, leave to appeal refused, [2017] S.C.C.A. No. 109.

[45] With respect to the second prong of the test, the trial judge reluctantly concluded that a youth sentence would be insufficient to hold the appellant accountable for his actions or to ensure public safety. In reaching this conclusion, the trial judge considered the following additional evidence: the victim impact statements; the pre-sentence report; the psychiatric report prepared by Dr. Pearce; the IRCS report prepared by the probation officer, Ms. Huggins; letters of support on the appellant’s behalf; the appellant’s conduct in pre-sentence custody; and the appellant’s statement of remorse at the sentencing hearing. The trial judge noted that the appellant has support in his community and completed some courses and programs while in custody. The trial judge nonetheless had serious concerns about the adequacy of a youth sentence to hold the appellant accountable for his actions in light of the following findings:

• The appellant repeatedly minimized his role in the murder to the forensic psychiatrist, Dr. Pearce, and probation officer, Ms. Huggins;

• The appellant repeatedly contravened the rules and regulations of the institution where he was held in pre-sentence custody, with fourteen misconduct reports over a five-year period;

• The appellant committed a drug offence in February 2019 while in a holding cell during his trial and did not mention this incident to Dr. Pearce or his sister;

• Dr. Pearce’s report and testimony indicated that the appellant may be suffering from antisocial personality disorder which may be untreatable at his age, making him a danger to society;

• The probation officer who prepared the pre-sentence report and the IRCS report was unaware that the appellant was on two probation orders, as opposed to one, and was prohibited from possessing a firearm at the time of the offence;

• The brutal nature of the offence; and

• The appellant’s post-offence conduct, including his continued efforts to obtain a firearm, attempting to discard his bloody clothing, and leaving the country one week after the murder.

[46] Given these findings, the trial judge concluded that the Crown met the two-stage test for an adult sentence set out in s. 72(1) of the YCJA.

[47] The appellant argues that the adult sentence imposed is unfit because the trial judge erroneously relied on a number of aggravating factors that had not been established beyond a reasonable doubt, contrary to the rule in Gardiner and Ferguson. In particular, the appellant submits that the trial judge erred in relying on the following three aggravating facts: (1) the finding that the appellant was “the stabber or one of the stabbers”; (2) the finding that the appellant made “continued efforts to obtain a firearm” after the murder; and (3) the finding that the appellant was “an aggressor or willing participant” in a number of incidents based on his jail misconduct reports.

[48] The appellant further contends that the trial judge inappropriately relied on the appellant’s non-disclosure of his outstanding drug charge while awaiting trial to justify imposing an adult sentence.

[49] We will address each of these arguments in turn and conclude that the claimed errors did not have an impact on the sentence ultimately imposed.

(2) The trial judge did not violate the rule in Gardiner and Ferguson

[50] Pursuant to s. 724(2) of the Criminal Code, the sentencing judge in a jury trial shall accept as proven any of the facts that were essential to the jury's verdict. Where the factual implications of a jury’s verdict are ambiguous, the judge may find any other relevant fact disclosed by the evidence to be proven or hear other evidence that the parties may present. The Crown must prove any disputed aggravating facts beyond a reasonable doubt for them to be relied upon at sentencing: Gardiner, at pp. 415-416; Ferguson, at para. 18.

(a) The trial judge properly found that the appellant was “the stabber or one of the stabbers”

[51] In his reasons for sentence, the trial judge found that the appellant was “the stabber or one of the stabbers” and that his involvement in the offence was not merely as a party, but rather “at the very minimum” as “a principal”.

[52] The appellant argues that the trial judge should not have made this finding without conducting an explicit Gardiner analysis for two reasons. First, the appellant submits that the finding that the appellant was the stabber, or that he was in the alleyway at all, is unsupported by the forensic evidence. As discussed above, the absence of forensic evidence does not preclude the appellant’s presence in the alleyway and the trial judge was entitled to consider G.D.’s evidence on this point. Second, the appellant argues that this finding of fact was not implicit in the jury’s verdict. The basis of the appellant’s first degree murder conviction was unlawful confinement. The jury were instructed that the appellant would be found guilty of first degree murder as long as he played an essential, substantial and integral role in the killing but that he did not necessarily have to be one of the stabbers.

[53] The factual implications of the jury’s verdict with respect to the appellant’s role in the murder are ambiguous. As such, the trial judge had to make his own independent determination of the facts relevant to sentencing: R. v. Moreira, 2021 ONCA 507, at paras. 45-47; R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 107.

[54] The parties and the trial judge were all aware of the judge’s fact-finding role at sentencing. Defence counsel specifically requested that the trial judge make a finding of fact about the extent of the appellant’s participation in the murder. The trial judge confirmed his fact-finding role at sentencing stating that, “if there's any uncertainty with respect to what the jury decided factually speaking, I believe I have the discretion and authority to make my own factual findings with respect to that issue”.

[55] The Crown’s position at sentencing was that the appellant was the “primary stabber”. Defence counsel did not make any submissions at sentencing about the extent of the appellant’s participation in the murder.

[56] It was therefore open to the trial judge to accept, beyond a reasonable doubt, that the appellant was “the stabber or one of the stabbers”. This finding was supported by the evidence at trial, including the testimony of G.D., the victim’s mother, and the appellant’s hand injury.

[57] Although the trial judge did not conduct an explicit Gardiner analysis in reaching this conclusion, trial judges are presumed to know the law and do not commit a reversible error simply by failing to mention an applicable legal principle: R. v. A.A., 2023 ONCA 174, at para. 22. A fair reading of the record and reasons for sentence demonstrate that the trial judge understood that he was required to resolve this ambiguity arising from the jury’s verdict beyond a reasonable doubt.

(b) The trial judge’s use of the text messages was limited and proper

[58] At the sentencing hearing, the Crown presented text messages between the appellant and Shawn Cargioli to demonstrate that the appellant was still attempting to obtain a gun even after the murder. The trial judge accepted this submission. The trial judge referred to the appellant’s ongoing efforts to obtain a firearm after the murder as part of the appellant’s post-offence conduct under both stages of the s. 72(1) test: (1) to rebut the presumption of diminished moral blameworthiness; and (2) to support the conclusion that a youth sentence would be insufficient to hold the appellant accountable.

[59] At the sentencing hearing, defence counsel did not contest the Crown’s interpretation of the post-incident text message exchange, but argued that these text messages, among other things, demonstrated the “type of bravado …in an immature person” and the appellant’s “diminished responsibility”. The appellant now submits that the text messages do not support the inference that the appellant was still trying to obtain a firearm because he did not request a firearm but was merely offered one.

[60] It was open to the trial judge to infer that the appellant had an ongoing interest in obtaining a firearm from these text messages. The appellant initiated contact with Shawn Cargioli after the offence and did not decline his offer for a firearm but suggested continuing the conversation on Facebook. Even if this inference was not available beyond a reasonable doubt, it would not impact the sentence. This text message exchange was just one aspect of the appellant’s post-offence conduct. In finding that the appellant’s post-offence conduct exacerbated the seriousness of the murder, the trial judge also considered the evidence that the appellant was trying to discard his bloody clothing and fled the country one week after the murder. The totality of the appellant’s post-offence conduct was also just one factor, among many others, that justified the imposition of an adult sentence.

(c) The trial judge was entitled to rely on the appellant’s jail misconduct records

[61] The trial judge referred to the appellant’s jail misconduct records as one of the reasons why he had concerns about the sufficiency of a youth sentence.

[62] The appellant was involved in fourteen behavioural incidents from February 2014 to August 2018 including “threats to assault, wilful damage of property, possession of contraband, attempt to bring contraband into the facility, wilful disobedience of corrections officer and creating or inciting a disturbance.” Defence counsel did not object to the admissibility of the misconduct reports at sentencing but pointed out that there had been no new incidents in over three years.

[63] We agree with the appellant’s submission that jail misconduct reports, on their own, do not prove the occurrence of the underlying conduct beyond a reasonable doubt and cannot be relied on as aggravating factors in this sense: R. v. Singh, 2018 ONSC 3850, at para. 96. While not aggravating, the appellant’s conduct in pre-trial custody is relevant to assessing his rehabilitative potential as a mitigating factor: R. v. Wilson, 2022 ONCA 857, at para. 52. Courts have considered behavioural incidents in pre-trial custody as a relevant factor when determining whether a youth sentence would be appropriate: see e.g., W.(M.), at paras. 30, 37, 129 and 152; R. v. K.O.M., 2017 ONCA 106, at para. 20; R. v. Joseph, 2020 ONCA 73, 385 C.C.C. (3d) 514, at para. 109. The trial judge was entitled to find that the appellant “repeatedly contravened the rules and regulations of the institution” based on the number of incidents in his record. This understandably raised concerns about the appellant’s prospects of rehabilitation.

[64] The appellant takes specific issue with the trial judge’s finding that the appellant was the “aggressor or a willing participant” in the incidents. This statement was made in direct response to the appellant’s assertion to his probation officer that he was being picked on while incarcerated. The trial judge refers to the summary of misconduct findings to address this inconsistency in the evidence. To the extent, if any, that the trial judge inappropriately relied on the jail misconduct records for the truth of their contents, this did not impact the sentence. This was but one consideration, among several others, that led the trial judge to conclude that a youth sentence would be inadequate to ensure public safety and hold the appellant accountable.

(3) The trial judge’s reliance on the pre-trial drug offence

[65] During the appellant’s trial, surveillance footage in the holding cells shows the appellant throwing two packets containing cocaine and marijuana from his cell to another inmate in the opposite cell. The appellant was charged with trafficking in a controlled substance. He later agreed to resolve this charge before the trial judge, pleading guilty to the lesser included offence of simple possession of cocaine based on wilful blindness.

[66] The appellant submits that the trial judge erred in treating the appellant’s failure to disclose this outstanding drug offence to Dr. Pearce and his sister as an aggravating factor. Pursuant to s. 725(1)(b) of the Criminal Code, the court can only consider an unrelated alleged offence for the purposes of sentencing if the offender consents and pleads guilty. The appellant’s position is that the drug offence could not have been used as an aggravating factor at all had the appellant not accepted responsibility and consented to it being dealt with at his sentencing hearing.

[67] In our view, the trial judge did not improperly consider the drug offence as an aggravating factor. While a guilty plea would ordinarily be treated as a mitigating factor, the trial judge was entitled to consider the appellant’s ongoing criminal behaviour during his trial for first degree murder as evidence of his lack of insight and risk of re-offending.

[68] Although it was inappropriate for the trial judge to treat the appellant’s failure to mention this outstanding drug charge to Dr. Pearce and his sister as an additional aggravating factor, this was just one of many reasons why the trial judge had serious concerns about the sufficiency of a youth sentence to hold the appellant accountable.

(4) The adult sentence imposed on the appellant was fit

[69] Trial judges have broad discretion in their determination of a fit sentence and the exercise of this discretion is owed deference on appeal: R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 162. Having found that the trial judge did not make an error in principle that had an impact on the sentence, we would not disturb the sentence imposed as the appellant has also not shown that the adult sentence was demonstrably unfit under the circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.

[70] There is a gap in the statutorily permissible length of a youth sentence and an adult sentence for first degree murder. Where a youth is sentenced as an adult for first degree murder, the mandatory minimum sentence is life imprisonment with no chance of parole for ten years, as per s. 754.1(b) of the Criminal Code. In contrast, a youth sentence for first degree murder cannot exceed ten years where no more than six years are to be served in custody pursuant to s. 42(2)(q)(i) of the YCJA. As part of a youth sentence for first degree murder, s. 42(2)(r) of the YCJA permits the imposition of an Intensive Rehabilitative Custody and Supervision (“IRCS”) order for up to ten years. A young person may qualify for such an order where the conditions under s. 42(7) of the YCJA are satisfied, including where the young person suffers from a mental illness, a psychological disorder, or an emotional disturbance, and where the provincial director determines that an IRCS program is available and that the young person’s participation in the program is appropriate.

[71] The appellant submits that a youth sentence in the upper range coupled with an IRCS order would be the appropriate disposition in this case. Specifically, the appellant argues that his circumstances are akin to those of the young offenders in W.(M.) who received youth sentences for a first degree murder conviction.

[72] The Crown submits that it has rebutted the presumption of diminished moral blameworthiness and demonstrated that a youth sentence is insufficient to hold the appellant accountable. The Crown further submits that the facts of this case are unlike those in W.(M.).

[73] In W.(M.), three sixteen-year-old young persons were convicted of first degree murder for the execution-style killing of another youth in the stairwell of his apartment building. The Court of Appeal for Ontario held that the youth court judge failed to properly apply the law on IRCS orders with respect to two of the young offenders, M.W. and T.F. This court went on to hold that the Crown had not rebutted the presumption of diminished moral blameworthiness and that a youth sentence would be sufficient to hold both M.W. and T.F. accountable. This court imposed a ten-year sentence with an IRCS order in which the first six years would be served in custody for M.W., and a ten-year sentence with an IRCS order in which the first four years would be served in custody for T.F. In a separate more recent decision, the Court of Appeal for Ontario upheld the adult sentence imposed on the third young person, SB.1, who was found to be the shooter in W.(M.).

(a) The Crown rebutted the presumption of diminished moral blameworthiness

[74] Regarding the presumption of diminished moral blameworthiness, the evidence supports a finding that the appellant “demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult”: W.(M.), at para. 98. In reaching this conclusion, the court must consider the “seriousness of the offence and the circumstances of the offender”: W.(M.), at para. 112.

[75] The appellant was convicted of first degree murder, one of the most serious offences known to our criminal law. While the Crown’s theory for the first degree murder charge was unlawful confinement, as opposed to the murder being planned and deliberate, this was a brutal murder of a seventeen-year-old youth outside of his own home that had a devastating impact on the victim’s family.

[76] However, as this court emphasized in W.(M.), at para. 112, the seriousness of the offence is not determinative of the analysis concerning whether the presumption of diminished moral blameworthiness has been rebutted. Rather, the focus is on the young person’s “level of moral judgment or sophistication demonstrated in the planning and implementation of the offence, and the young person’s role in carrying out the offence”: W.(M.), at para. 112.

[77] In this respect, this case shares some similarities with W.(M.). In both cases, there were a series of text messages and calls implicating the young persons in the murders. The appellant in this case and the young offenders in W.(M.) engaged in post-offence conduct in attempts to conceal evidence. The appellant tried to discard his bloody clothing. T.F. helped dispose of the murder weapon and M.W. contemplated getting rid of the phone he used to send and receive incriminating texts and discussed murdering a witness to the murder. All three young offenders had prior criminal records and committed their offences while they were on probation and subject to a weapons prohibition order.

[78] While these aggravating factors in W.(M.) were insufficient to rebut the presumption of diminished moral blameworthiness, there are key distinguishing facts and additional aggravating factors that justify the imposition of an adult sentence in the present case. In W.(M.), T.F. did not fire the gun or take a leadership role and M.W. was not present when the victim was killed. The text messages in the days leading up to the attack in this case reveal that this offence did not occur in the spur of the moment. The appellant initiated the text conversation with Shawn Cargioli seeking to obtain a firearm. He was a willing and active participant in the plan to rob the victim and his intention to do so never wavered. The trial judge was therefore entitled to find that he “was not merely a party to the offence” but “at the very minimum, a principal”. After the victim was stabbed, the appellant proceeded into the victim’s home in pursuit of the original plan to commit a robbery for guns.

[79] The appellant was also on the cusp of adulthood at the time of the offence. Unlike the sixteen-year-old offenders in W.(M.), one of whom had just turned sixteen, the appellant was a mere seven months away from the age of majority. Courts have found that the closer the offender is to the age of eighteen, the more the age factor would tip the balance towards an adult sentence over a youth sentence: R. v. C.S., 2014 ONSC 4362, 115 W.C.B. (2d) 541, at para. 52; R. v. Simpson-Rowe, 2009 18884, [2009] O.J. No. 1662 (S.C.), at para. 66.

[80] The appellant’s conduct in pre-trial custody further shows a lack of introspection and rehabilitative potential. While the young offenders in W.(M.) had some behavioural incidents, they otherwise demonstrated “exemplary behaviour” and took meaningful steps to better themselves in pre-trial custody, the appellant’s fourteen behavioural incidents in jail and his commission of a drug offence while awaiting trial do not bode well for his prospects of rehabilitation.

[81] Taken as a whole, the seriousness and circumstances of the offence, along with the age, character, background, previous record, and post-offence conduct of the appellant show a “level of maturity, moral sophistication, and capacity for independent judgement of an adult such that an adult sentence and adult principles of sentencing should apply”: W.(M.), at para. 98.

(b) A youth sentence combined with an IRCS order is insufficient to hold the appellant accountable

[82] The appellant submits that any concerns about the sufficiency of a youth sentence to hold the appellant accountable would be attenuated by an IRCS order. The IRCS program provides court approved treatment and rehabilitation plans for young persons that suffer from a mental illness or emotional disturbance who have been convicted of serious crimes, including first degree murder.

[83] Mr. Berkenblit, the probation manager with authority to sign off on IRCS suitability assessments, and Ms. Evernden, a probation officer, opined that the appellant could be an appropriate candidate for an IRCS order. Ms. Evernden prepared an IRCS Suitability Assessment Report recommending a treatment plan based on the evidence of Dr. Pearce and his psychological assessment.

[84] The record reveals apparent weaknesses with the proposed treatment plan. In cross-examination, Ms. Evernden agreed that there are not many programs that would be responsive to the adolescent-onset conduct disorder that the appellant suffers from and that the proposed treatment plan is somewhat like fitting a “round peg in a square hole”. Dr. Pearce’s evidence also suggests a negative prognosis on account of the appellant’s continued offending and antisocial personality traits that may not be amenable to treatment given his age. As such, the trial judge gave minimal weight to the proposed IRCS treatment plan.

[85] Deference is owed to the trial judge’s assessment of the appellant’s rehabilitative potential and the adequacy of the proposed treatment plan. We see no basis to interfere with his conclusion that an adult sentence is necessary to hold the appellant accountable for his actions and to protect the public.

DISPOSITION

[86] Accordingly, we dismiss the appeal from conviction, grant leave to appeal the sentence, but dismiss the appeal from sentence.

Released: May 26, 2023 “J.S.”

“M. Tulloch J.A.”

“Grant Huscroft J.A.”

“I agree. Janet Simmons J.A.”

[^1]: Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811.

[^2]: R. v. Harbottle, 1993 71 (SCC), [1993] 3 S.C.R. 306.

[^3]: As noted at para. 20 of R. v. W.(M.), 2017 ONCA 22, 134 O.R. (3d) 1, s. 72(1) was amended in 2012 (S.C. 2012, c. 1, s. 183(1)), following the date of this offence, to explicitly include the presumption of diminished moral culpability. However, in R. v. B.(D.), [2008] 2 S.C.R. 3, 2008 SCC 25, the Supreme Court of Canada recognized the presumption of diminished moral culpability of youths as a principle of fundamental justice.