Citation: R. v. Elie, 2012 ONCJ 39
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Mr. T. Pittman,
for the Crown
— AND —
Doniele Elie
Ms. S. Campbell,
for the accused
lipson J.:
REASONS FOR SENTENCE
[1] Doniele Elie, a young person within the meaning of the Youth Criminal Justice Act (YCJA), pleaded guilty to one count of break and enter of a dwelling and commit theft, two counts of discharge firearm with intent to endanger life, one count of possession of a loaded restricted firearm and one count of possession of a restricted firearm.
[2] On March 18, 2011 the court granted the Crown’s application for an order pursuant to s. 72(1)(b) of the YCJA that Mr. Elie be sentenced as an adult on the charges: R. v E.(D.) [2011] O.J. No. 1403; 2011 ONCJ 157.
[3] An adult sentence for the offence of discharge firearm with intent to endanger life carries a mandatory minimum sentence of five years imprisonment. An adult sentence for possession of a loaded restricted weapon carries a mandatory minimum sentence of three years imprisonment.
Circumstances of the Offences
[4] An agreed statement of facts, filed as exhibit 1(tab1), sets out the circumstances of the offences as follows:
September 25th, 2009: Break, Enter and Commit Theft, Discharge Firearm with Intent to Endanger Life
Alexander Gillespie and his girlfriend, Rachel Pieczonca, arrived home at 50 Rippleton Road in the City of Toronto, after shopping at a local mall in the evening hours of September 25th, 2009. After some time had passed, they went upstairs to go to bed. At a few minutes after 10:00 p.m., they heard a crashing noise from the back of the house on the main floor. Mr. Gillespie went to investigate and saw three human shadows in the living room area of the house. He yelled, and they fled out of the house towards the street.
At that time, Mr. Gillespie’s neighbour, Bruce MacGregor, was outside of his home moving his vehicle. He heard Mr. Gillespie yelling for someone to call the police. Mr. MacGregor had his cell phone, and began to dial 911 when he observed a male running westbound toward a parked vehicle described as a dark-coloured, four-door sedan. Mr. MacGregor yelled at the male to stop. He then saw another male emerge from the car port at Mr. Gillespie’s residence as he began speaking to the 911 call-taker. He also yelled at that male to stop. The male stopped, looked at Mr. MacGregor, and began shooting at him. Mr. MacGregor believes that he heard three to four shots. He dove to the ground to avoid being hit.
Mr. MacGregor received a gunshot wound to his right foot – the bullet entered the top of his foot approximately two inches below his small toe and exited the bottom of his foot near his big toe. He was taken to Sunnybrook hospital and underwent surgery the next morning.
Doniele Elie admits that he participated in the break and enter and that he knew his cohorts had a loaded firearm during the commission of these offences. He also admits that he was aware of the possibility that his cohorts could use the firearm during the commission of the offence. Amongst the items taken during the break and enter was Mr. Gillespie’s iPhone. Also recovered at the scene were several 9mm shell casings.
In addition to those agreed facts, there is no dispute that Doniele Elie and his associates first saw the victims at a shopping mall and decided to follow them to their home in order to break in to their residence and steal property.
Saturday, September 26th, 2009: Discharge Firearm with Intent to Endanger Life
A “Sweet 16” birthday celebration was being held for a young lady in the party room of an apartment building located at 3370 Kingston Road in the City of Toronto on September 26th, 2009. Approximately one hundred people were in attendance.
At approximately 10:00 PM, the victim, Tisman Larocque, and the accused were both dancing. They bumped on the dance floor. A struggle ensued, both between Mr. Larocque and the accused, and between their respective groups of friends. As a result, the lights in the room were turned on. At that time, Mr. Larocque and his friends exited the premises and walked to the rear of the building by one exit, while Doniele Elie and his friends exited the building by another exit.
Outside of the building, the trouble resumed and Doniele Elie retrieved a firearm and fired two bullets into Mr. Larocque’s upper left leg. Mr. Larocque was rushed to hospital, and required surgery to repair a broken femur.
A few days later while he was recovering, Mr. Larocque was shown a photo line-up and was able to positively identify the accused as the shooter. Several witnesses provided a description of the vehicle that the accused was seen entering shortly after the shooting.
Several 9mm shell casings were recovered at the scene.
Friday, October 2nd, 2009: Possession of Loaded Restricted Firearm and Possession of a Restricted Weapon
On October 2nd, 2009, officers patrolling the area of Kingston Road and Lawrence Avenue East in Scarborough noticed a vehicle matching the description of the one used in the events of September 26th, 2009, at 3370 Kingston Road. The vehicle was stopped in the parking lot of a condominium building located at 90 Ling Road in the City of Toronto.
Present in the vehicle was the accused and a number of young females. Officers questioned the occupants regarding the fact the vehicle had dealer plates, yet nobody knew the origins of the car. Also, the dealer plates had been reported “lost” on an earlier date.
All of the occupants exited the vehicle. Officers began questioning the occupants as to the origins of the vehicle, but none of them could provide any information in that regard. At some point, the females asked to sit in the vehicle, complaining that it was cold outside. They were allowed to re-enter the vehicle, along with the accused who sat in the front passenger seat. Officers asked the female driver to look for any documents with respect to the vehicle, but she simply waved her arms and said she didn’t know where such documents may be. Officers then asked if they could search for the documents and she agreed. Officers searched the glove compartment in front of the accused’ knees and found two 9mm handguns. One of the handguns was loaded. The accused was not permitted to possess such weapons, and the weapons are ‘restricted’, as set out in the information.
When searched incident to arrest, the accused was found to be in possession of the iPhone stolen during the break and enter on September 25th, 2009.
Further investigation revealed that one of the firearms recovered from the vehicle ejected the shell casings found at both the September 25th and September 26th scenes. Further investigation also revealed that the accused (as well as a separately-charged co-accused) had been using the stolen iPhone (with their own SIM cards) in the days immediately following the break and enter.
Victim Impact Evidence
[5] The accused shot Mr. Larocque on September 26, 2009. The victim suffered a broken femur. Mr. Larocque declined to provide a victim impact statement. The Crown advised the court that the victim has since made a complete physical recovery. The Crown did not submit victim impact evidence from the victims of the break and enter of September 25, 2009.
[6] Bruce MacGregor, the victim of the September 25, 2009 shooting, did provide a victim impact statement, exhibit 2. He also testified at Mr. Elie’s sentencing hearing. At the time of the offences, Mr. MacGregor was a 51 year old civil servant. He is married with two children. In his victim impact statement, Mr. MacGregor eloquently described the emotional and physical impact of this crime on himself and his family as follows:
Emotional Loss
A random encounter with a violent criminal has most certainly changed my life and that of my entire family. I am still periodically haunted by the image of a darkly clad and hooded offender who stops in the middle of fleeing, steps towards me and with an arm straight out and without warning, fires a handgun, not once but four times. Unfortunately, I can’t dismiss this as a nightmare. The experience seems indelibly etched into my subconscious.
As a result, I have become less secure in what I consciously know to be a “safe” neighbourhood. My early response included a security obsession-locking doors, installing fences with locked gates, motion sensing lights, monitored alarms, panic buttons and other security measures to comfort my family. The potential of an armed home invasion seems to be much more than the likely event I would characterized it as before my neighbour’s house was broken into by these perpetrators.
The recollection of finding me fallen on the front lawn telling the 911 operator that I had been shot, still brings tears to my wife and daughter’s eyes. My son is similarly affected as he recalls returning home that evening to encounter Police cordons and the news that his dad “had been shot”.
I remained intrigued by the complexity of thought that pervades your consciousness after this type of traumatic experience. The thoughts that flashed through my mind during the seconds that the whole incident played out, seem to take several minutes to replay. I thought of the terrible consequences to my immediate family of watching me die, unnecessarily in our “safe” neighbourhood. I thought of my 92 year old mother, who depends on me for the necessities of life. I thought of my elderly neighbours who I also help out with weekly tasks and wondered how their lives would also change.
We’ve become lighter sleepers, reacting swiftly to any sounds. Phones are always nearby. Before the perpetrators were apprehended, we were greatly comforted by a visibly increased Police presence on the street and in the neighbourhood. It helped make us feel less imprisoned in our home.
I am a rational person, but it is a challenge to not feel suspicious, uneasy and even fearful when encountering even a small group of younger people. The sudden and potentially lethal consequences of an unprovoked attack have made me, sadly, far less trusting. I’m fortunate to have a circle of friends who have built reputations as valued members of society by helping others. The incarceration of those who seek respect through senseless brutality provides at least some comfort that good will prevail.
Physical Injury
In hindsight I consider myself fortunate to have been struck only twice (once through my left pant leg about one-inch from my knee and once through my right foot) as the trajectory of a bullet extracted from my neighbour’s garage was likely above my head. The bullet that went through my right foot probably hit as I dove in the opposite direction to avoid the gunfire. While the cuts and scrapes have healed, the bullet broke two bones-requiring surgery. I’m currently following up on related complications.
Prior to the incident, I regularly ran and played hockey a couple of times weekly. I have yet to be able to run and have pain and difficulty putting on a skate. I suspect that additional surgery will be necessary to restore full mobility.
Circumstances of the Offender
[7] The court considered the following reports which were prepared for this sentencing:
A pre-sentence report (PSR) dated September 10, 2010, exhibit 1(tab 2).
A s. 34 YCJA assessment dated October 14, 2010 authored by Dr. Lindley Bassarath, a staff psychiatrist and Head of Adolescent Services, Child and Youth and Family Program, Centre for Addiction and Mental Health, exhibit 1(tab 3).
Brookside Youth Centre records, exhibits 1(tab 4) and 3.
Reports from Roy McMurtry Youth Centre, exhibits 6 and 7.
The court also heard the testimony of Patricia Johnson, a former teacher of Mr. Elie and friend of Mr. Elie’s family.
[8] At the time of these offences, Mr. Elie did not have a youth record and was just one month shy of his seventeenth birthday. Mr. Elie was born in Trinidad and immigrated to Canada at age six in order to live with his mother. He maintains contact with his father who resides in Trinidad. At the time of his arrest, the accused lived with his mother, step-father, two older step-brothers and step sister. Mr. Elie has a close and supportive family. The PSR indicates that he was always respectful of family members and tended to follow the house rules. The accused spent one year living in Trinidad with his father in 2009. Mr. Elie has a particularly close relationship with his mother and two step-brothers.
[9] Mr. Elie has resided mainly in the Malvern area of Scarborough and prior to these offences saw incidents of gun violence described in the PSR and testimony of Ms. Johnson. He witnessed a drive-by shooting, a party being “shot up” and other incidents of street violence. As well, he experienced the loss of a friend in Trinidad who was killed at a party. His own house was “shot up” prior to him leaving for Trinidad. Mr. Elie denied belonging to a gang in Malvern yet he also advised the PSR writer that he believed that his safety was in jeopardy when he was in the Galloway area of Scarborough. The PSR indicates that Mr. Elie felt that he “needed to obtain and carry protection to approach this area. Protection ultimately took the form of a loaded firearm. Despite these concerns, the location of the shooting of Mr. Larocque at a party occurred in the heart of the Kingston Road-Galloway area.”
[10] The PSR sets out the accused’s long history of behavioural problems at school which resulted in fourteen suspensions and one expulsion. Disciplinary measures had to be taken to address his bullying, intimidating and threatening behaviour toward other students, persistent opposition to authority and possession of weapons. At the same time, the majority of report cards describe the accused as being very intelligent and capable of much greater academic achievement. Ms. Johnson taught Mr. Elie in grade 6, coached him in basketball and continued to assist him in his studies during his junior high school years. She testified that Mr. Elie possesses natural leadership qualities. That opinion is echoed by youth workers in the institutional reports. Ms. Johnson spoke eloquently of the devastating emotional impact upon Mr. Elie as a result of witnessing incidents of gun violence in the community as well as seeing his two brothers, whom he reveres, incarcerated for various offences including robberies.
[11] Following his arrest, Mr. Elie was detained at Brookside Youth Centre. His progress at Brookside with respect to institutional behaviour and programming was, to put it charitably, uneven during the first few months. There are negative reports alleging that Mr. Elie instigated two fights, was targeted by another youth regarding suspected gang issues and that he engaged in disruptive classroom behaviour as well as lying and intimidating peers. He was unable to work at school due to hostilities between himself and another youth but did well in one-on-one mathematics instruction. Mr. Elie was involved in four altercations with co-residents during the period of December 2009 to June 2010. The records show that staff considered him to be the clear aggressor in one of those incidents. As a result, Mr. Elie was charged and found guilty in Cobourg Youth Court of assaulting a co-resident for which he received 12 months probation. Beginning in August 2010 he participated in counselling for “life issues”. Mr. Elie made good progress at Brookside, returning to full-time studies in the fall of 2010 and early 2011 despite the occasional lapse in motivation. The last Brookside update from January 2011 indicates that since resuming full time studies, Mr. Elie has earned several Grade 9 and 10 credits. As well, he has attained the highest privilege level because of his good behaviour in the institution.
[12] Exhibit 7 contains a psychological counselling summary report from Brookside that was prepared by psychometrist B. Terluk. Mr. Terluk indicates that Mr. Elie participated in 24 counselling sessions. The report is very positive and states that the accused’s attendance in counselling was voluntary and expressly motivated by a pressing need to make lifestyle changes. The report states:
“Doniele’s disclosures reveal conscientious reflection of past mistakes and his determination to avoid pitfalls that may lead to criminal involvement. He has clearly acquired much self-insight and sober realization of the harmful emotional impact on family and caring friends.
In respect of self-improvement efforts, Doniele believes he has acquired a great deal of maturity and wisdom during his term in custody at the Brookside Youth Centre. I and others concur with this evaluation.”
[13] Mr. Elie was transferred to Roy McMurtry Youth Centre in the early summer of 2011. Case management reports, exhibits 6 and 7, indicate that he has reached the highest privilege level within the institution. He is working toward the completion of the credits he needs to graduate from high school and hopes to one day become a personal trainer. His prime worker considers him to be a “natural born leader” among his peers. Mr. Elie has received certificates for positive behaviour at the Centre.
[14] Psychological testing done for the s. 34 assessment reveals that the accused’s cognitive abilities are considered to be in the low-average to average range. His processing speed ability is an area of weakness for him and he is likely to learn more efficiently when given extra time to process new information and complete his work. Risk assessment testing showed him to be a “moderate risk for general re-offending” at the time of assessment. Dr. Bassarath indicates the following at page 19:
“The areas identified as criminogenic risk/needs include educational factors (history of disruptive school behaviours, problems with peers and teachers, underachievement in past and unemployment in past; some antisocial acquaintances, lack of structured organized recreational activities (prior to custody); personality and behavioural variables (physical aggression at times in past, inattention in past, low frustration tolerance as per past reports). Areas identified as relative strengths included good relations with custodial staff, good independent schoolwork (e.g. current math course), high behavioural level in custody (3), lack of substance abuse, lack of psychopathic traits, lack of previous charges, presence of pro-social peers and presence of remorse.”
[15] The McMurtry Youth Centre case management team classified Mr. Elie’s level of risk to be high “given the very serious nature of the charges (for which he pled guilty), the young person’s lack of acknowledgment for the need of rehabilitative measures and his callous disregard for the wellbeing of others demonstrated by these acts.” The most recent report, exhibit 6, indicates that the accused has not participated in clinical and volunteer programs offered by the institution.
Attitude of Mr. Elie Regarding the Offences
[16] The PSR, written in September 2010, states the following at pages 10-11:
“In discussing the first offence before the Court, the young person informed that one co-accused was a friend, while the other was introduced to him by a friend one month before the offence. The young person related that the other two parties had planned the break and enter, and advised that he was the “lookout” while the other two entered the home. Doniele Elie related that following the shooting he observed the victim on the ground, and believed him to be deceased. He advised he was concerned about getting home, and noted he did not consider the welfare of the victim, nor entertain doing anything to help him. The youth advised the parties laughed, noting they could “all go to jail for this”.
Doniele Elie stated he does not feel he is at all responsible for the outcome, as he was not a part of the initial planning, and did not know that someone was going to get shot. He stated that at the time when they were following the victims of the break and enter to the residence, he felt it was okay to go along with his co-accused as he knew he wasn’t going to be doing anything to actively participate in the break and enter.
The young person acknowledged his awareness that the other parties had a loaded firearm, and acknowledged the potential for that firearm to be used during the commission of the offence. Overall, however, he minimized his participation in and responsibility for the occurrence. The young person maintained that he “just went along” with the plan of the others and as such is less responsible for the outcome.
Doniele Elie related that if he had known ahead of time that someone was going to be shot, that he would have thought twice about going along with the plan. The youth was able to identify in general the impact such an offence could have on the victim, and related that he would feel very angry if he or a loved one was “shot” in this manner for “doing the right thing”. Doniele Elie deems his level of responsibility for the potential impact on the victim, however, to be lesser than the other involved parties given his perceived lesser role in the offence. When discussing mediation, the young person felt that he does not owe the victim an apology, given that he was not the person to pull the trigger. If anything, he advised he could apologize for not helping him after the shooting occurred. Doniele Elie felt he had no other options in this situation than to follow along with the plan.
With regard to the second offence, Doniele Elie informed that he knew before hand that he should not have attended the party. He stated he had heard there would be people from “G-way” at the party, knew the party was near the cusp of the Galloway area, and therefore felt it necessary to obtain backup. Although he initially attempted to have a friend be his backup, the lack of availability of the said friend reportedly resulted in the youth obtaining the firearm. Doniele Elie noted it was easy to obtain a firearm.
The youth advised his choice to produce a firearm was for the purpose of intimidation, and to scare the opposing group. He advised his choice to discharge the firearm was a bit of a reaction, and as such he fired, but did not know what was going to happen. He informed he did not know what he was shooting at. Doniele Elie stated that if it had been his intention to kill someone, he was in close enough proximity to have taken aim at a number of persons. He added that at the time of the incident, he did not know that the victim was a resident of the Galloway area. He recalled immediately hoping that the victim would be okay after the shooting occurred.
In contrast to the first offence, the young person felt he is responsible for what happened to the victim. He noted he had a feeling something was going to happen, and took responsibility for proactively obtaining a firearm, and then being the one to produce, and use, the firearm. Doniele Elie maintained that no other options existed for him to resolve the situation. In retrospect he felt the only option that could have avoided the situation would have been to try to talk to the victim initially to explain he did not mean to push him. After that point of the interaction, however, he did not deem any other resolutions to be available to him given the circumstances.
The young person advised he does not see himself becoming involved in these situations again in the future. The youth also advised, however, that he did not see himself being in these situations before they happened. His plan to prevent further offending includes limiting his social network to one peer, avoiding getting into arguments with people, remaining out of a specific area, and to avoid peers that do things like have a gun, and break the law.”
[17] In a letter addressed to the court, exhibit 5, Mr. Elie expressed remorse for his conduct and its impact on the victims and his family. The letter contains a plea to be given “the opportunity to demonstrate that I can live in the community peacefully and make up for my mistakes.”
Positions of the Crown and Defence
[18] Crown counsel submits that since the court has determined that the accused should be sentenced as an adult, the principles of sentencing found in Part XXIII of the Criminal Code are applicable, as are the mandatory minimum sentences set out for those offences . The Crown submits that the court must also take into account the sentencing principles of totality, proportionality and restraint because Mr. Elie is a youthful first offender. The Crown submits that the court should sentence Mr. Elie to a further five to seven years in addition to his pre-sentence detention of two years and four months. In the alternative, the Crown did not strongly oppose the imposition of an upper-range reformatory sentence plus three years probation. It is submitted that such a sentence could properly address the rehabilitative objectives of sentencing as well as the protection of the community by providing for lengthy community supervision of Mr. Elie.
[19] Counsel for Mr. Elie submits that the mandatory minimum sentences for these offences violate sections 7 and 12 of the Charter by depriving Mr. Elie of his right not to be deprived of liberty, except in accordance with the principles of fundamental justice and his right not to be subject to cruel and unusual punishment. Given his 28 months of pre-sentence custody, counsel for the accused submits that Mr. Elie should now be given a time-served type of disposition along with lengthy probation.
Aggravating and Mitigating Factors
[20] The seriousness of these crimes is readily apparent. Four of the offences involve the use or possession of firearms. All of these crimes involved significant risk-taking on the part of the accused. Multiple victims were harmed. In committing these offences, Mr. Elie put the community in significant danger. Despite his youth at the time of the offences, the accused’s moral culpability is high.
[21] The break and enter of September 25, 2009 was planned. Mr. Elie and his two associates followed the intended victims from a shopping mall to their residence. They entered the residence while the victims were at home. The accused acted as a lookout while knowing that one of his associates was armed with a loaded firearm. That person shot Mr. MacGregor in the foot as the intruders fled the house. The victim was in the process of calling 911 when he was shot. Mr. MacGregor’s victim impact evidence poignantly describes the painful physical and emotional aftermath that he and his family have had to endure since the shooting. The PSR indicates that initially Mr. Elie felt little to no remorse or responsibility for the outcome since he was not part of the initial planning and just “went along” with the others and played a relatively minor role in the offence. He saw Mr. MacGregor on the ground, believed him to be dead but “was concerned about getting home, and noted he did not consider the welfare of the victim, nor entertain doing anything to help him. The youth advises the parties laughed, noting they could “all go to jail for this”.
[22] Mr. Elie was not a party but the principal in the shooting of Mr. Larocque which occurred only one day after the shooting of Mr. MacGregor. According to the PSR, the accused armed himself with a loaded handgun because he heard that there would be people from the Galloway area of Scarborough present at a party full of young people. The accused not only carried a loaded firearm but after a minor pushing incident with the victim, fired two bullets into one of Mr. Larocque’s legs. The PSR stated that the accused “maintained that no other options existed for him to resolve the situation. In retrospect, the accused now regrets his conduct, has expressed remorse and now understands that that were possibly non-violent means to resolve the issue.”
[23] The third offence involved the accused with three passengers in a car that contained two firearms. One was loaded. Mr. Elie was unable to explain to Dr. Bassarath whose car it was except that “someone gave them the car”.
[24] According to the section 34 YCJA assessment conducted in the fall of 2010 the accused was considered to be a moderate risk of general reoffending. By contrast, the reports from the Roy McMurtry Youth Centre assess his level of risk to be“high”.
[25] In mitigation, Mr. Elie entered guilty pleas. He accepts responsibility and his guilty pleas have spared the victims from having to testify in a trial. Also, the Crown acknowledged that there were evidentiary challenges proving the charges. Clearly, Mr. Elie has matured during the past two years and four months in secure detention. He is moving toward completing the high school credits he needs to graduate. According to the reports from the Roy McMurtry Youth Centre, staff members consider him to be a natural leader who has been a good role model for his peers. Mr. Elie’s prime worker considers him to be a “behavioural success”. The accused wishes to become a personal trainer. He engaged in counselling at Brookside and improved his insight into his offending behaviour and its impact upon the victims, his family and the community. Mr. Elie enjoys strong family support which will be a positive factor for his rehabilitation. I have no doubt that the accused’s degree of future risk is such that he will require lengthy community supervision for a lengthy period following his release from custody.
What is a fit sentence?
[26] In sentencing Mr. Elie as an adult, the court is required by s.74 of the YCJA to apply the sentencing provisions of the Criminal Code, except to the extent that there is an express contrary provision in the Act or Code. The adult sentencing principles set out in sections 718-718.2 are applicable. This means that the court is required to consider the sentencing objectives of specific and general deterrence as well as denunciation. The nature and severity of the offences for which Mr. Elie has been convicted require that deterrence and denunciation be the paramount sentencing objectives. At the same time, adult sentencing principles will also oblige the court to consider the accused’s youth, decreased maturity and rehabilitative potential.
[27] There is an ongoing debate in the jurisprudence as to what degree, if any, the sentencing principles contained in s.3 and s. 38 of the YCJA can or should be applied in an adult sentence. In R.v. Flaten [2009] S.J. 709 ( Sask C.A.) the court stated at paras 35-36:
…where Parliament intended the Code to be applied subject to the YCJA it clearly said so. It did not say so in s. 74. In my view, Parliament clearly intended that after a hearing where it is decided a young person is to be sentenced as an adult, he or she is to be sentenced as an adult. The principles of sentencing under the YCJA are taken into account at the time of the hearing to decide if the young person is to be sentenced as an adult. The ultimate decision to sentence a young person as an adult by its nature means the application of the principles for a youth sentence would not result in a fit sentence and therefore an adult sentence is necessary.
This is not to say that principles equivalent to those set out in s. 3 of the YCJA are inapplicable when a sentence is imposed pursuant to s. 718 of the Code. The age of the offender and the personal circumstances of a young offender must be taken into account when the principle of proportionality (s. 718.1) is considered. I note the concept of diminished moral culpability is not a principle set out in either s. 3 or s. 38 of the YCJA. Rather, as set out in D.B., supra, diminished moral culpability is a presumption that must be rebutted before a young person can be sentenced as an adult. However, the fact the presumption has been rebutted does not mean that the sentencing judge shall not take into account the realities of youth in coming to an ultimate sentence. There is nothing in s. 718 of the Code that prohibits this type of reasoning in adult sentencing.
[28] A different approach and one that I favour was expressed in R. v. Pratt [2007] B.C.J. No. 670 (B.C.C.A.) at paras 35-37as follows:
I conclude that an adult sentence pursuant to s. 74, such as the one imposed on Mr. Pratt, remains a sentence under the Act. That being so, I see no basis upon which to say that the principles set out in s. 3 do not apply. To put it another way, the effect of s. 74 is to bring into the sentencing of a young person the principles of s. 718 which are otherwise not applicable, such as specific and general deterrence, and not to exclude the general principles set out in s. 3.
I conclude, therefore, that in sentencing a young person to an adult sentence pursuant to s. 74 of the Act, the sentencing judge was required to strive to fashion a sentence that addresses the objectives of s. 718 of the Code and as well emphasizes, to the degree possible in the context of the evidence before the court, both the young person's rehabilitation and reintegration and "fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity".
The result is that while an adult sentence is reserved, in the language of B.W.P., "for the most serious crimes", the adult sentence imposed will not necessarily be lock-step with the sentence that would be imposed upon an adult in circumstances that are identical except for the offender's age. Only as the age of the offender approaches the cut-off age in the definition of "young person" is that result more likely. In other words, the fact of youth creates a discount' from the adult tariff of sanctions. As Julian V. Roberts and Nicholas Bala in "Understanding Sentencing Under the Youth Criminal Justice Act", (2003) Alta. L.R. 395 observed at p. 412: "This correlation between age and severity of punishment is the one feature common to all Western juvenile justice systems". I would not say, given the language in s. 3 of the Act, that this means that a sentence that otherwise fits the crime will always be reduced to take account of rehabilitation and reintegration, as the extent of the opportunity for rehabilitation and reintegration will be individual to the character and circumstances of the offender. Likewise, there may be cases in which the objective of "fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity" admits of little mitigation of the sentence imposed. Yet it may generally be expected that the fact of youth, considered within the terms of the Act, will moderate a sentence, particularly for those who are some time away from the upper limit of the definition of a young person.
What is required, in my view, is that the sentencing judge consider the factors addressed in s. 3 of the Act. This means that the significance of rehabilitation, an important principle under s. 718 of the Code, is enhanced in the sentencing of any young person. It means as well that the application of the principle of accountability must recognize the deficiencies in maturity of the young person and his or her greater dependency as that may be revealed in the evidence before the court.
[29] The issue as to whether a sentencing court must consider the factors addressed in s.3 of the YCJA remains unsettled in Ontario. However, it can at least be said that a common thread in these differing approaches to the adult sentencing of young persons is that the objective of rehabilitation should generally be enhanced and moderate the penalty to be imposed.
[30] The court must also take into account the principle of totality. The total sentence must not be unduly long or harsh. The sentence must also be proportionate to the gravity of the offence and the degree of the accused’s responsibility. The court must also keep in mind the sentencing principle of restraint given the age of Mr. Elie and that this will be his first sentence of imprisonment.
[31] Mr. Elie engaged in brazen and dangerous conduct. At the time he was just shy of his 17th birthday but he possessed sufficient streetwise maturity to make the choices he made. He chose to participate in a break-in knowing that one of his associates was armed with a loaded gun. He also knew that the homeowners were home at the time because he and his associates followed them to their residence. The potential for serious harm or worse was obvious. In fact, an innocent bystander was shot as Mr. Elie and the others fled the house. This kind of break-in was certainly on the more serious side of the spectrum and amounted to a home invasion. The next day the accused brought the same loaded firearm used to shoot Mr. MacGregor to a party full of young people. After a minor pushing incident and argument with the victim, Mr. Elie shot him twice in the leg. One week later Mr. Elie was driving a vehicle containing the same loaded gun used in the previous offences as well as a second handgun. There were three passengers in the car at the time.
[32] Mr. Elie is now 19 years old. I have taken into account the mitigating factors set out earlier in these reason. It appears from the various reports submitted into evidence that the accused has matured and developed important pro-social values while in secure detention. He has demonstrated rehabilitative potential. Of course, good institutional citizenship is no guarantee that Mr. Elie will continue his rehabilitation after he is released from custody. There can be no doubt that it is in Mr. Elie’s best interests and for public safety that he be subject to the maximum period of community supervision permitted by law.
[33] Offences involving the possession and use of firearms call for denunciatory and deterrent sentences. An adult, even a first offender, could expect the kind of substantial penitentiary sentence that was suggested by the Crown, taking into account the nature and number of very serious offences to which Mr. Elie pleaded guilty. Nevertheless, the court must not lose sight of the fact that this is the sentencing of a young person as an adult. As the court indicated in Pratt, the appropriate sentence should not necessarily be lock-step with the sentence that would be imposed upon an adult in circumstances that are identical except for the offender’s age. Mr. Elie remains a youth subject to an adult sentence. He should be sentenced in accordance with the penalogicial goals of the YCJA as expanded by the sentencing principles in Part XXIII of the Criminal Code. I also note that Crown counsel took what I consider to be a reasonable and fair position that because of the 28 months of pre-sentence custody already served by the accused, a lengthy reformatory range sentence with three years probation, could properly address the relevant sentencing objectives in this case. Taking into account those sentencing objectives and the aggravating and mitigating circumstances, I am of the view that the appropriate range is six to eight years less credit for time served. Because of the mitigating factors present in this case, the accused should be sentenced at the lower end of that range.
[34] The next issue to be determined is whether the court should consider the constitutional issues raised by counsel for Mr. Elie. The Criminal Code sets out mandatory minimum adult sentences for each of the offences for which Mr. Elie has been convicted. Discharge firearm with intent to endanger life and possession of a restricted firearm carry mandatory minimum sentences of 5 and 3 years, respectively: s.244 (2)(a)(i) and s. 93(2)(a)(i). Counsel for Mr. Elie submitted that the application of the mandatory minimum sentences would violate sections 7 and 12 of the Charter. However, because the appropriate range of sentence in this case falls in the 6-8 year range, it is not necessary to resolve the difficult and important constitutional issues raised by counsel. To put it another way, regardless of whether the mandatory minimum sections are constitutional or not, I would impose exactly the same sentence. As Doherty J.A. stated in R. v. K.(R.), 2005 21092 (ON CA), 198 C.C.C. (3d) 232 at para.59:
It has been repeatedly held that courts should not decide issues of law, particularly constitutional issues, that are not necessary to the resolution of the matter before the court: Phillips v. Nova Scotia (Commission of Inquiry into the Westwray Mine Tragedy), 1995 86 (SCC), [1995] 2 S.C.R. 97, 98 C.C.C. (3d) 20, at paras. 5-11.
[35] Mr. Elie has now spent twenty eight months of pre-sentence custody. He has been held in secure detention first at Brookside Youth Centre and then at the Roy McMurtry Youth Centre. He has had the opportunity to avail himself of educational, counselling and other programs while at these facilities. Counsel for Mr. Elie submitted that since an adult sentence is being imposed, the accused should receive the “usual” 2:1 credit that adult offenders received prior to the enactment of Bill C-25.
[36] Enhanced credit for adult pre-sentence custody is usually justified on the basis that (a) statutory remission does not apply to pre-sentence custody, (b) the absence of programs in local remand centres facilities for treatment, counselling and education training and (c) the harshness of the carceral environment in which pre-sentence custody is served. While Mr. Elie has served his pre-sentence custody in secure detention at youth facilities, he has had the benefit of extensive programming. However, he will not receive statutory remission for his pre-sentence custody. Given the length of the pre-sentence custody and Mr. Elie’s lack of prior involvement in the justice system, it seems reasonable to give him credit on more than a 1.5:1 but less than a 2:1 ratio. While there is no prescribed and precise mathematical calculation to be used, it seems to me that the pre-sentence credit should be 52 months.
[37] In addition to pre-sentence custody served, Mr. Elie is sentenced to a further 20 months. In addition he will be placed on probation for three years with the following conditions:
• Report to a probation officer forthwith upon your release and thereafter as directed. For the first 18 months of this order, you will report no less than once per month in person.
• Reside at an address approved of by your probation officer.
• Not to change that address without 24 hours prior notice to probation officer.
• To continue with your education and/or seek and maintain employment.
• Not to possess any weapons.
• To take such assessment and counselling as directed by probation and not to discontinue your attendance without the prior consent of your probation officer.
• Sign any releases that may be necessary for probation to confirm your compliance with this order.
• No contact with Alexander Gillespie, Rachel Pieczonca, Bruce MacGregor and Tisman Larocque.
• Not to be within 200 metres of 50 Rippleton Road, Toronto.
[38] There will be a D.N.A order and a section 109 weapons, explosives and ammunition prohibition for life.
[39] The next issue to be determined is whether Mr. Elie should serve the custody portion of his sentence in a youth facility or a provincial correctional facility for adults. Section 76 of the YCJA requires that a placement hearing be conducted.
Released: January 27, 2012 Justice T. Lipson