WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(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.

111. Identity of victim or witness not to be published. — (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.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(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 Information

Court File No.: Toronto Region – Scarborough

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen

— and —

T.C., a young person

Before: Justice M. Wong

Heard on: April 20, July 19, and September 27, 2012

Reasons for Judgment released: October 30, 2012

Counsel:

• B. Jones, for the Crown
• R. Brewes, counsel for the accused T.C.

Reasons for Judgment

Wong, J.:

Introduction

[1] T.C., a young person within the meaning of the Youth Criminal Justice Act, on April 20, 2012, pleaded guilty to the offence of possession of a firearm. Later on July 19, 2012, he pleaded guilty to a new charge of failing to comply with a recognizance. The matter was remanded for a Pre-sentence Report and later for a section 34 assessment.

[2] The Crown seeks a sentence of 6 months open custody followed by 1 year probation with ancillary orders of a section 51 firearms prohibition for 2 years and a DNA order.

[3] Defence counsel submits the Court should impose a period of probation. Counsel argues custody is not available because T.C.'s offences do not fall within subparagraphs 39(1)(a) through (d) of the YCJA. Mr. Brewes argues even subparagraph 39(1)(d), which holds that a sentencing judge can impose a custodial sentence "in exceptional cases" where the young person has committed an indictable offence and where the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38, does not apply.

[4] In the alternative, counsel asks the Court to consider a deferred custody and supervision order.

[5] For the following reasons, I find that section 39(1)(d) is available and therefore the gateway is open for T.C. to receive a custodial sentence.

The Offences

[6] Exhibit 1 is an Agreed Statement of Fact which states that on June 20, 2011, T.C. was 13 years old and resided at an address with his parents. At some point, T.C. possessed a Glock handgun (unloaded) while in his residence. He handled the gun as depicted in a cell phone video which was taken at the time. The video revealed T.C. handling the gun and making some comments about it. The video was also submitted and marked as an exhibit.

[7] Exhibit 2 is a 49 second video featuring T.C. and his 17 year old cousin (who was also charged) appearing very confident and threatening as they smiled, posed, pointed, racked and discharged the unloaded firearm. Their physical swagger is accompanied by both speaking street jargon, whose message was essentially, "don't mess with us because we have a Glock". Some cases may refer to this type of behaviour as "adolescent preening", unfortunately having presided in Metro East court for over a decade, I have seen too many cases involving young persons and guns to agree with that benign characterization.

[8] On October 31, 2011, T.C. was arrested and released the next day on a recognizance with several conditions including a condition of "house arrest" with several exceptions.

[9] On April 20, 2012, T.C. pleaded guilty to possession of a firearm and the matter was remanded for a pre-sentence report. The PSR was returnable on July 19, 2012. However, on May 2, 2012, at 8:50 pm, plainclothes police officers were conducting a walk through a Toronto housing complex. Police noticed five males in the area and they smelled the strong odour of marijuana. T.C. falsely identified himself to police. However, police later learned his true identity and on May 5, 2012, T.C. was arrested and held in detention for three days until released to his grandmother.

Background of the Offender

[10] T.C. is now 14 years old and has no prior youth record. Two pre-sentence reports dated July 19 and September 27, 2012 as well as a section 34 assessment dated September 25, 2012 provide the court with the following background information:

[11] T.C. grew up with his mother and maternal grandmother until he was 8 years old, when they moved in with T.C.'s father. (T.C.'s father was incarcerated from the time T.C. was 3 years old until he was 8). T.C., his parents, a 2-year old sibling all lived together until June 2011, when police arrested both of his parents and charged them with possession of the firearm.

[12] In June 2011, T.C. and his mother moved back with his maternal grandmother, and an 18 year old uncle. In the July 19, 2012 PSR, both mother and grandmother reported that T.C. was doing well. At page 3, his mother advised the probation officer that T.C. kept her informed of his whereabouts and plans; prior to the charges, he obeyed an 8:00 pm curfew; he attended school regularly; behaved respectfully in the home; and completed his chores. Grandmother at page 4 of the PSR reported that disciplinary measures were rarely needed and that consequences were imposed "once in a blue moon".

[13] However, school reports reveal a very different picture. Between JK and grade 2, T.C. changed schools five times. Before grade 7, T.C. had been suspended from school eight times. The suspensions were for lateness, physical fighting with another student, instigating a fight, failing to follow staff directions, bullying and threatening behaviour, and truancy.

[14] In 2008, T.C. was identified with a "mild intellectual disability". According to page 11 of the section 34 assessment, a MID designation meant that T.C.'s overall score with respect to his cognitive functioning fell between the 2nd and 5th percentile compared to other youth his age. As such, the Toronto District School Board sent T.C. to the school's Identification, Placement, and Review Committee (IPRC) and he was identified as an "exceptional" student in need of extra educational supports. In September 2010, T.C. was placed in a special education classroom at Donview Middle School, and provided a special needs assistant for both grade 7 and 8. The SNA worked with T.C. during afternoons for a 6 month period and there was a positive impact on T.C.'s school performance.

[15] However, in grade 8, T.C.'s attendance and school work sharply declined. During grade 8, between September 2011 and May 2012, T.C. was late 81 times and absent 38 days. At page 5 of the report, the Principal at Donview Middle School reported that T.C. was becoming more "edgy" and "not as controllable". She explained that in the past, T.C. responded well to re-direction and was fairly easily to calm down and return to his task. However, the principal noted that T.C.'s temper and anger was worsening and it was more difficult to calm him down. The situation became so severe that T.C. was no longer permitted to attend classes with his former classmates with special needs because he was so disruptive.

[16] While in custody for three days while waiting his release on the charge of failing to comply with a recognizance, T.C. was detained at Gifford Homes Open Custody facility where he received a written warning about smoking marijuana in an upstairs bathroom.

[17] Because of the very alarming information provided in the PSR, in particular that T.C. was doing so poorly at school, I suggested to T.C.'s lawyer that a section 34 assessment might be appropriate and beneficial. On consent, a section 34 assessment was ordered.

[18] The results of the section 34 supported the 2008 psychoeducational assessment, whose test results indicated that T.C. has a Mild Intellectual Disability (MID). In its conclusions at page 15 of the assessment, the writer reports that T.C.'s cognitive functioning is much less well developed than his same age peers. His verbal reasoning abilities, non-verbal reasoning skills, and processing speed abilities are in the "Extremely Low to Borderline range of functioning. His working memory is slightly better in the "Low Average" range. His academic assessment results shows T.C. is achieving far below the level expected for his age and grade; and more importantly, also behind the level expected based on his cognitive abilities even keeping in mind his MID designation. The report made many helpful recommendations, which I will review momentarily. The assessment emphasized that T.C. will continue to learn at a much slower pace than his same-aged peers and will continue to need extensive, intensive, modified programming to succeed at his own level.

[19] In speaking to T.C.'s mom in open court on September 27th, she seemed to grasp the significance of this information and she appeared willing to work hard and support her son.

"Exceptional Circumstances" – Subsection 39(1)(d)

[20] The first issue to decide is whether custody is an option on sentence. A youth judge can only incarcerate a young person, if the offender and/or the offence fall under one of four categories. Brock Jones for the Crown agrees that the only way I can impose a custodial sentence is if I find that the circumstances that T.C. committed the offences were "exceptional" pursuant to subparagraph 39(1)(d) of the Y.C.J.A. The other subsections do not apply.

[21] In R. v. R.E.W., the Ontario Court of Appeal considered what constitutes "exceptional circumstances". Justice Rosenberg at paragraph 31 writes:

The theme that runs through use of the term "exceptional" in both criminal case law and legislation is that it is intended to describe the clearest of cases. Such cases include those where applying the normal rules would undermine the purpose of the legislation, where the exercise of the unusual power is necessary or required, and where the exercise of the unusual jurisdiction is capable of explanation. The wording of s. 39(1)(d) is consistent with this approach. The exceptional power to commit a young person to custody is reserved for those circumstances where, in effect, any other order would undermine the purpose and principles of sentencing set out in s. 38. The analysis of s. 39(1)(d) must be set against the background of section 38, which stresses the importance of interfering with a young person's liberty as little as possible. For example, s. 38(2) states that youth justice courts should consider "all available sanctions other than custody that are reasonable in the circumstances". Section 39(2)(e) further directs that youth court justices should apply the "least restrictive sentence" and the "the [sentence] most likely to rehabilitate the young person.

[22] As well a determination of "exceptional" must focus solely on the circumstances of the offence and not the character or history of the offender. The circumstances of the offence must be so aggravating that nothing less than custody will justify the purposes and principles set out in section 38 of the Act.

[23] In the case of possession of a firearm it does not automatically result in a custodial sentence. Custody can be warranted based on the principles of "accountability" and "proportionality". Section 3(1)(b)(ii) states that fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity. Subparagraph 38(2)(c) states that the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence.

[24] Defence counsel provides the Court with the recent decision of R. v. Smickle. Justice Molloy found the mandatory minimum sentence of three years of jail grossly disproportionate to what the defendant deserved for a single act of bad judgement. In Smickle, the defendant was posing in his cousin's apartment with a loaded handgun, taking his picture for his Facebook page, when police broke in to execute a search warrant in relation to his cousin. There was no evidence that the firearm belonged to the accused or that he intended to use it against the police. Section 95(2) of the Criminal Code attracts a minimum mandatory jail term of three years. Justice Molloy in sentencing the defendant to the equivalent of a one year conditional sentence, found the mandatory sentence to be unconstitutional.

[25] I agree with Crown counsel, the Smickle case dealt with a different issue than the one before this court. As well, in the end Smickle still received the equivalent of a one year jail sentence to be served in the community.

[26] Crown counsel provided the Court with a helpful summary of cases at tab 2 of his casebook, which outlines some recent decisions mainly from Ontario where all of the Courts except one, found that the possession of firearms falls within the category of "exceptional circumstances". R. v. M.J. is a decision of mine in which I carefully analyzed section 39(1)(d) as it applied to a loaded firearm. I adopt the reasoning in M.J., and find that the same analysis applies in T.C.'s case: that the aggravating circumstances of the offence of possession of a firearm (albeit unloaded) are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

Aggravating and Mitigating Factors

[27] I note the aggravating factors in this case include the seriousness of the offence; T.C.'s lack of respect for court orders in terms of breaching his recognizance; his negative behaviour in pre-trial detention; and his poor performance and behaviour at school. All youth sentences must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence. So while T.C. was seen on the videotape with an older cousin, there was nothing to suggest that T.C. was anything but an equal and willing participant.

[28] In terms of mitigating factors I consider T.C.'s early guilty pleas, he is a first offender, his young age, his family's support, and his cooperation with youth workers and psychologists for the preparation of the pre-sentence reports and the section 34 assessment.

[29] My assessment of all of the relevant factors leads me to conclude that a sentence of a deferred custody sentence is consistent with the principles and purposes of sentencing under the Y.C.J.A., in addition is the least restrictive sentence that most likely will rehabilitate T.C., and which holds him accountable. I agree with Defence counsel that to sentence T.C. to a period of open custody will disrupt his education in his special needs classroom and subject him to the influences of negative peers.

Conclusions

[30] In addition to time served of (4 days), on the charge of possession of a firearm, T.C. will be sentenced to a six month deferred custody and supervision order with the following terms and conditions:

a) Statutory terms of keep the peace and be of good behaviour, report to the court when and if required;

b) Reside with your mother and grandmother at […] Crescent, in Toronto; and obey the reasonable rules and discipline of that address; and report any change in telephone number to your youth worker in advance of any change;

c) Remain in your place of residence at all times, subject to the following exceptions:

i. For the purposes of attending school;

ii. For the purposes of attending organized basketball practices, games, tournaments or any other organized school related activity; a schedule of which must be provided to your youth worker in advance;

iii. For the purposes of your own medical and dental appointments and emergencies;

iv. For the purpose of religious worship, provided you are directly accompanied by either your mother or grandmother;

v. For the purpose of complying with this sentence which includes permission to report to your youth worker; or to any counselling appointments;

vi. For any other purpose approved of, in advance and in writing, by your youth worker;

vii. For the purpose of travel directly to and from the above-noted exceptions.

d) Not to possess any weapons as defined by the Criminal Code, in particular you are not to possess a firearm, imitation firearm, pellet guns, cross-bow, prohibited weapon, restricted weapon, prohibited device; ammunition, prohibited ammunition or explosive substances;

e) You shall not have a friend or an acquaintance in your residence without the prior approval of that person's attendance by your mother or your grandmother;

f) You shall attend school as directed by your youth worker in consultation with your mother and the Toronto District School Board (TDSB); you shall sign any release forms required by your youth worker to confirm your attendance at school;

g) You shall attend for any assessment, treatment or counselling as recommended by your youth worker in consultation with your mother and the TDSB in particular but not limited to the African Canadian Youth Justice Program (ACYJP) and Victim Impact Awareness Program. Sign any releases required by your youth worker to confirm your attendance. Do not discontinue your attendance without the prior consent of your youth worker.

h) Do not have any contact or communication directly or indirectly with T.C. or K.C.W. unless directly accompanied by your mother or your grandmother.

[31] Following the deferred custody and supervision sentence, you shall comply with a term of probation for 1 year with the following conditions:

a) Statutory terms of keep the peace and be of good behaviour, report to the court when and if required;

b) Reside with your mother and grandmother at […] Crescent, in Toronto; and obey the reasonable rules and discipline of that address; or at an address approved of by your youth worker in writing in advance of any such change; report any change in telephone number to your youth worker in advance of any change;

c) You shall obey a curfew set out in writing by your youth worker in consultation with your mother and grandmother;

d) Not to possess any weapons as defined by the Criminal Code, in particular you are not to possess a firearm, imitation firearm, pellet guns, cross-bow, prohibited weapon, restricted weapon, prohibited device; ammunition, prohibited ammunition or explosive substances;

e) You shall not have a friend or an acquaintance in your residence without the prior approval of that person's attendance by your mother or your grandmother;

f) You shall attend school as directed by your youth worker in consultation with your mother and the Toronto District School Board (TDSB); you shall sign any release forms required by your youth worker to confirm your attendance at school;

g) You shall attend for any assessment, treatment or counselling as recommended by your youth worker in consultation with your mother and the TDSB in particular but not limited to the African Canadian Youth Justice Program (ACYJP) and Victim Impact Awareness Program. Sign any releases required by your youth worker to confirm your attendance. Do not discontinue your attendance without the prior consent of your youth worker.

h) Do not have any contact or communication directly or indirectly with T.C. or K.C.W. unless directly accompanied by your mother or your grandmother.

[32] With respect to the breach of the recognizance, T.C. will be sentenced to time served (3 days) and 18 months probation with the same terms and conditions as noted above.

[33] There will also be two ancillary orders:

a) Section 51(1) order for 2 years

b) DNA order (secondary order)

[34] Lastly, I order the release of the section 34 assessment to T.C.'s youth worker as recommended by the psychologists, which is on consent. As well, on consent, I authorize an edited version of the section 34 assessment to be released to T.C.'s school.

Released: October 30, 2012

Justice M. Wong