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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Date: 2013-12-19

Ontario Court of Justice

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

Parties

Between:

Her Majesty the Queen

— and —

B.E., a young person

Before the Court

Before: Justice Ellen B. Murray

Reasons for Judgment released on: December 19, 2013

Counsel:

• Mr. Robert Wright, for the Crown
• Mr. Joe Louch, counsel for the accused B.E.

REASONS FOR JUDGMENT

MURRAY, E. B. J.:

Introduction

[1] On August 12, 2013 I found B.E. guilty of two offences, both related to an incident which took place on the evening of September 11, 2012: robbery, and use of an imitation firearm to commit robbery. B.E. was 16 years of age that evening; he is now 18 years old. I have received and reviewed a presentence report, a report under s. 34 of the Act from the Centre for Addiction and Mental Health (CAMH) with respect to an assessment conducted of B.E., and a victim impact statement. I heard from B.E. and his mother Ms. R. E. I have considered written submissions from counsel. In addition, I have conducted a conference on sentencing attended by B.E.'s probation officer, his worker from the Catholic Children's Aid Society ("the Society"), his worker at Roy McMurtry Youth Centre, his mother, and B.E. himself, his lawyer, and the Crown.

[2] The Crown asks that I find that the robbery and use of imitation firearm to commit a robbery are both a "serious violent offence" (SVO) under s. 42(9) of the Act, and that I impose a sentence of custody and supervision in the range of 6-8 months, less an appropriate deduction for any pre-sentence custody, followed by 18 months' probation. The defence submits that although a period of open custody (followed by probation which incorporates the plan developed by B.E.'s probation officer) might be appropriate, that B.E. should receive substantial credit for 4 months spent in secure custody with respect to other charges which have now been withdrawn.

[3] In determining a sentence for B.E., I am required to consider:

1. Whether custody is an available sentence;
2. If custody is available, whether the offence merits the designation of a serious violent offence;
3. The appropriate sentence, given the purposes and principles of sentencing set out in the Act.

The Offences

[4] On September 11, 2012 the victim was accosted outside her apartment building on Dowling Avenue in Toronto by B.E. and another man (never identified) at approximately 10 p.m. Both men disguised their faces. B.E. held what appeared to be a Beretta. He kept it trained on the victim the entire time. He demanded and got from her money ($200 she had just received from work), her wallet, and her new Samsung cell phone. The phone had cost $700; she was still paying it off.

[5] The robbery required only a few minutes. After B.E. and his associate robbed the victim, they ran north. The victim managed to run to a fellow-tenant's apartment, and she called police. Police apprehended B.E. after a lengthy foot chase, and found the gun nearby.

[6] The victim's evidence was that she was "terrified" during the incident…. she had visions of "being shot in the chest, and bleeding on the ground." Her property was never recovered.

Is Custody Available?

[7] Section 38 of the Act sets out below deals with the purpose and principles of sentencing.

Purpose

38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence 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.

Sentencing Principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

• (a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

• (b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

• (c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

• (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

• (e) subject to paragraph (c), the sentence must

  • (i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),
  • (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and
  • (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and

• (f) subject to paragraph (c), the sentence may have the following objectives:

  • (i) to denounce unlawful conduct, and
  • (ii) to deter the young person from committing offences.

Factors to be Considered

(3) In determining a youth sentence, the youth justice court shall take into account

• (a) the degree of participation by the young person in the commission of the offence;

• (b) the harm done to victims and whether it was intentional or reasonably foreseeable;

• (c) any reparation made by the young person to the victim or the community;

• (d) the time spent in detention by the young person as a result of the offence;

• (e) the previous findings of guilt of the young person; and

• (f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[8] s. 39(2) of the Act provides that even if a window to custody is open under s. 39(1), that I shall not impose a custodial sentence unless I have first considered alternatives and determined that those alternatives are not in accordance with the purpose and principles of the Act.

[9] A custodial sentence is available for B.E. for two reasons.

1. B.E. committed a violent offence in robbing the victim. The Supreme Court of Canada has held that a "violent offence" is "an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm", harm which may be physical or psychological. The Criminal Code provides that "bodily harm" means "any hurt or injury to a person that interferes with the health or comfort of the person and is more than merely transitory."

[10] These offences had a profound and lasting psychological impact on the victim. At trial she testified that she relives the nightmare of that evening every day. In her victim impact statement the victim says that the fear engendered by this crime continues. She will no longer ride public transit in the evening. She no longer feels safe in her own neighborhood, and, if she could afford to, would move out of Toronto to a safer location.

2. B.E. is also open to a custodial sentence pursuant to the provisions of s. 39(1)(c). He has committed an indictable offence for which the punishment for an adult is life imprisonment, and his youth record contains a pattern of findings of guilt.

Serious Violent Offence?

[11] Section 2(1) of the YCJA defines a serious violent offence as "an offence in the commission of which a young person causes or attempts to cause serious bodily harm". The Supreme Court of Canada has held that "serious bodily harm" includes "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant."

[12] In R. v. K.C., the Ontario Court of Appeal held that a court asked to make an SVO designation should follow a two-step process. First, the court must first find that the offence meets the definition of SVO contained in s. 2(1) of the YCJA; if that finding is made, then the court has discretion as to whether the designation should be made. In R. v. M.A. the Court of Appeal went on to hold that "in cases where a youth justice court concludes that a young offender has occasioned serious bodily harm to another person, the preliminary SVO threshold under s. 42(9) should be automatically met". At this first stage of the analysis, the consequences to the young offender of an SVO designation—for example, that a sentence of deferred custody is not available-- are irrelevant.

[13] In this case, therefore, the preliminary threshold for an SVO designation is met. What factors should guide my discretion in determining whether the designation should be made? A wide variety of factors have been identified as helpful. In R. v. K.C., the Court of Appeal held:

"at least one factor a sentencing judge must consider in deciding whether to designate an offence as a serious violent offence is whether the consequences of an SVO designation are necessary to achieve the purposes of youth sentencing. Depending on the circumstances of the particular case, this in turn could bring into play the whole panoply of factors relevant to youth sentencing."

[14] The Court in that case went on to observe that at this second stage a court it might consider factors specific to the offender, such as whether the harm caused was actually foreseen by the offender, and any efforts towards rehabilitation made since the offence.

[15] In R. v. M.A., the Court of Appeal upheld the SVO finding and sentence of a trial judge who held that the court should "focus primarily on the nature of the offence and the consequences or potential consequences to the victim." The Court of Appeal did not, however, hold that in the appropriate case that a court could not consider offender-specific factors.

[16] I will be guided by the spirit of the Court of Appeal's decision in R. v. K.C.; my discretion should be exercised by considering those factors necessary to achieve the purposes and to honour the principles of sentencing set out in the Act. As the court says, this requires consideration of all the factors relevant to youth sentencing, and I analyze those factors below.

[17] My conclusion is that an SVO finding is required in this case. I add, however, that even if I did not make such a finding, that a sentence of deferred custody would not be sufficient to hold B.E. accountable for his actions.

The Offender

[18] B.E. has a short youth record:

• On November 29, 2011 he completed extra-judicial sanctions in relation to charges of mischief and assault
• On June 4, 2012, he was sentenced to 18 months' probation after pleading guilty to charges of weapons dangerous and failure to comply with an undertaking.

[19] B.E.'s very high level of anxiety has been noted by the team at CAMH who prepared the s. 34 report, as well as his probation officer. His extreme anxiety is an important factor to consider in determining what sentence is most likely to assist him in rehabilitation.

[20] Anxiety was first noted in B.E. when he was quite young. B.E. is "uncomfortable in crowds" and tends to avoid peers or the company of anyone other than a family member.

[21] In addition to an anxiety disorder, Dr. Joe Beitchman of CAMH diagnosed B.E. as suffering from an anti-social personality disorder and possible post-traumatic stress disorder.

Some of B.E.'s emotional difficulties may stem from an early childhood in which he was exposed to violence directed by his father, Mr. P., against his mother. After his parents separated, B.E. had court-ordered access to his father. Much later, in 2010, Ms. E. learned that Mr. P. was abusing B.E. on visits. Police were contacted, but did not charge him. Ms. E. says that B.E.'s behaviour deteriorated drastically when he saw that his father's behaviour was not punished.

[22] Ms. E. has worked hard to get B.E. the help he needs. There have been many assessments and treatment plans. In 2009, however, Ms. E. decided that the protection of her two younger children required B.E.'s absence from the home. The Society agreed that B.E. could return home last year, but problems soon resurfaced. B.E. could not sleep, he was agitated and paced around, talking to himself; the talk included times at which he mused about hurting his siblings and his mother. B.E. was returned to foster care. Ms. E. says regretfully that she cannot have B.E. at home now, or even let him know her current address.

[23] B.E. has been in many different group homes, often moving because of behavioural problems. At the conference, it was established that he has had 27 moves since he was 13 years old.

[24] School has been difficult for B.E. Since Grade 2 he has been unable to work at grade level. He has been diagnosed with a learning disability, and has received special assistance. He has accumulated only 9.5 credits towards a secondary diploma. B.E. has had multiple behavioural problems, resulting in multiple suspensions and changes of school. Since he was admitted to Roy McMurtry, B.E. has refused to attend school. He says, however, that when he is released he wants to go to school and take auto shop. He also enjoys and has had some success at drawing.

[25] The CAMH assessment indicates that B.E. has significant cognitive limitations. B.E.'s social worker with the Society, Nadia Theiner, has applied for him to receive funding and services from the Ontario Disability Support Program, and she anticipates that he will be accepted. This support can continue throughout his adult years.

[26] B.E. did not have a good record of working in behavioural or therapeutic programming through the school or child protection systems. For example, B.E. remained "disengaged" during a placement at Youthdale in which the focus was on "helping him control his anger and learn empathy". Dr. Beitchman of CAMH assessed B.E. as a moderate risk to re-offend, but noted B.E.'s "resistance to personal engagement, his suspiciousness and his highly guarded presentation". Dr. Beitchman observed that B.E. "is socially isolated and conveys a low level of competence and confidence". These observations reflect B.E.'s behavior at Roy McMurtry—he has not engaged in any programming, and seeks to avoid others, both staff and fellow inmates.

[27] Other professionals who have dealt with B.E. in the youth criminal justice system have a more optimistic view of his potential for successful treatment. Nancy Grant, his probation officer, reports that he has benefitted from "supportive, individual, informal counselling where he does not feel judged and the pace reflects his abilities and needs." Dr. Rudolph Drummond, a psychologist at Roy McMurtry, says that B.E. is probably "the most oppositional youth he has worked with in fifteen years…but he will do what he is asked to do if he believes there is a reason for it, there's something in it for him or after he has time to process the request and do it in his own time."

[28] Although B.E. was released on conditions after his arrest for these offences, he was detained in July 2013 at Roy McMurtry after being charged with breach of those conditions. Those charges were withdrawn in November 2013, but B.E. is facing further charges (two assaults and one failure to comply with a recognizance) in Brampton, which he arranged to have transferred to this court. He pled guilty to those charges today, and I sentenced him to a term of probation which shall run concurrent with the term of the community sentence I pronounce below.

[29] B.E. has displayed no remorse for his actions; in fact, in his interaction with Dr. Beitchman, he indicated that he felt justified in robbing the victim; he perceived her as "rich", and himself as needy.

[30] B.E. has made no efforts towards rehabilitation since these offences.

[31] The authors of the PSR and the s. 34 report offered suggestions for programming that might be helpful to B.E. in custodial as well as non-custodial situations. Dr. Beitchman made a point of emphasizing, however, that any programming would only be of assistance to B.E. if he participated in it, signaling some skepticism that he would do so, given his history. Dr. Beitchman also cautioned that if a custodial sentenced was imposed, that given B.E.'s history of running from group homes as a ward of the Society, that a secure facility might be preferred to insure that he was present to receive treatment.

[32] Ms. Grant and Ms. Theiner, have worked to develop a plan for B.E. that they think holds the best chance of rehabilitation for him, a plan which acknowledges his high anxiety at being in a group situation – such as a group home or custodial institution —and provides sensitive and flexible one on one counselling and support. B.E. has agreed to work with them to achieve this goal.

[33] At the sentencing conference, Ms. Grant, Ms. Theiner, Ms. Laurelle Singer (B.E.'s worker from Roy McMurtry), and Ms. E. agreed on the broad outlines of the optimal plan for B.E.

• The plan should offer safe affordable housing. Ms. Grant and Ms. Theiner believe they can secure a place for B.E. in a residence which gives him a private room, with the benefit of supportive staff.

• The plan should connect him with vocational training and job placement. Ms. Grant and Ms. Theiner can assist B.E. in pursuing such a program.

• The plan should offer him counselling in life skills and social skills. Ms. Grant recommends that B.E. participate in the Central Toronto Youth Services youth justice outreach program, which will provide him with a one-on-one counsellor.

• It was established that there will be a gap between the time that sentence is pronounced, and the contemplated housing is available. Assuming that a custodial sentence is to be pronounced, B.E. would do best in an open facility, which would allow him to more easily visit prospective residences and participate in programming.

Analysis

[34] The Crown has established beyond a reasonable doubt that an SVO designation should be imposed with respect to B.E.'s offences for robbery and use of an imitation firearm to commit a robbery as SVOs. In making that finding, I have considered the following factors, factors which are also relevant in the determination of the appropriate custodial sentence.

Gravity of the offences: The gravity of these offences is highlighted by the maximum penalty available for adult offenders. These offences involve assault by a stranger with what appeared to be a firearm on a vulnerable individual while she was exercising her right to walk Toronto streets in the evening. Offences of this type erode the very fabric of civil society.

Serious, lasting psychological effect on victim: The victim's life has changed profoundly because of the effects of this offence. She does not feel safe in her own neighborhood, will not ride transit at night, and would like to move from the city when she can afford to.

B.E.'s intent to terrify victim: The victim is a young woman who was alone, at night. As was the case in R. v. E.C., the circumstances of these offences indicate that the only possible purpose B.E. could have in wielding a gun after he and his associate rushed the victim was to cause fear, fear that she would be shot if she did not comply. He succeeded. I cannot find, however, that B.E. actually foresaw that his actions were likely to cause ongoing serious psychological harm to the victim. B.E. himself is so psychologically damaged that he may not be capable of seeing the perspective of another person.

B.E.'s role in the offences: B.E. played a prominent role. He held the gun on the victim throughout the robbery. Further, B.E.'s possession of the Beretta-like weapon indicates some planning of this crime.

B.E.'s lack of remorse: B.E. shows no remorse, and no empathy for the victim—in fact, he feels justified.

Lack of reparation: None of the victim's property was returned.

B.E.'s efforts towards rehabilitation since the offences: There are none. As well, B.E. has been charged with further offences since September 11, 2012.

B.E.'s youth record: This record includes a finding of guilt for possession of a weapon.

B.E.'s history of response to non-custodial sentences: B.E. breached the "no weapons" condition of his probation order. He did complete programming for EJS, programming which included a victim impact course. He also reported when able; frequent changes in his placement by the Society impeded his ability to report and to engage in programming while on probation.

[35] In light of these factors, an SVO designation should be made.

[36] In determining the appropriate sentence to be imposed, I have also considered sentences imposed by other courts on young persons in similar circumstances.

• In R. v. H.A., 2010 ONCJ 4, Justice Fern Weinper sentenced an 18-year old youth convicted of robbery and use of an imitation firearm in the robbery to 7.5 months custody and supervision (less credit for time served), followed by 16 months' probation. In H.A.'s case, mitigating factors included strong family support, obedience to bail conditions, and demonstration of some empathy for the victim.

• R. v. M.A.J. involved a 17-year old with a minor record convicted in two incidents in which convenience store clerks were robbed with an imitation firearm. The circumstances (forcible confinement for a period) were more serious than in the instant case, but, like R. v. H.A., there were significant mitigating circumstances. Justice David Cole sentenced M.A.J. to 24 months custody and supervision.

• In R. v. M.D., Justice Faith Finnstead sentenced three offenders who had participated in 3 robberies of convenience store owners, using imitation firearms. On some occasions, the victims were also beaten. Given their minimal youth records, their very significant periods of pre-trial custody, and their progress in rehabilitation while in custody, Justice Finnstead imposed sentences of 12 months custody and supervision, followed by periods of probation.

[37] Except for B.E.'s youth, there are no clear mitigating factors. It is significant for me, however, that the supportive figures in B.E.'s life, including his mother Ms. E., believe that he can be rehabilitated and have developed a careful plan for him, and that they are committed to continue to work with him, and he with them. This plan entails what seems to be B.E.'s best chance at becoming a productive member of society.

[38] An actual custodial sentence is required to hold B.E. accountable for these offences and offers the best chance available to rehabilitate him and reintegrate him into the community. In imposing the sentence, I have also considered the 9 days which B.E. spent in pre-sentence custody on these charges. The Crown agrees that B.E. should be given some credit for the four months he spent in custody with respect to other charges, which are now withdrawn. In my view, the appropriate sentence, taking into account the time B.E. has spent in custody (a total of 129 days) on a 1:1.5 basis, is a sentence of 90 days custody followed by 45 days of community supervision, followed by 18 months of probation. B.E. shall be at liberty to apply to me in the future to have this sentence reviewed.

Level of Custody

[39] What level of custody is appropriate? Determinations about the level of custody are guided by s. 24.1(2) of the Young Offenders Act, which is made applicable by Order-in-Council 498/2004, in accordance with s. 88 of the Youth Criminal Justice Act. Sections 24.1(2) and (4) provide:

24.1(2) Subject to subsection (3), where the youth court commits a young person to custody under paragraph 20(1)(k) or (k.1) or makes an order under subsection 26.1(1) or paragraph 26.6(2)(b), it shall specify in the order whether the custody is to be open custody or secure custody.

(4) In deciding whether a young person shall be placed in open custody or secure custody, the youth court or the provincial director shall take into account the following factors:

• (a) that a young person should be placed in a level of custody involving the least degree of containment and restraint, having regard to

  • (i) the seriousness of the offence in respect of which the young person was committed to custody and the circumstances in which that offence was committed,
  • (ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services,
  • (iii) the safety of other young persons in custody, and
  • (iv) the interests of society;

• (b) that the level of custody should allow for the best possible match of programs to the young person's needs and behaviour, having regard to the findings of any assessment in respect of the young person;

• (c) the likelihood of escape if the young person is placed in open custody; and

• (d) the recommendations, if any, of the youth court or the provincial director, as the case may be.

[40] Some factors, such as the concern expressed by Dr. Beitchman that B.E. may take advantage of an open custody situation to leave the facility without permission, militate in favour of an order for at least some period of secure custody. However, I am concerned that the services which B.E. requires would not be as available in secure custody as in open custody. I would also like his worker from the Society to be able to more easily work with him to plan his transition back into a supported living situation in the community while he is on probation. Those goals are more easily accomplished if he is in an open custody facility. There is no significant indication that B.E. would be a threat to the safety of others if in an open facility. I order that his period of custody be served in an open facility.

Conditions of Probation

[41] During the period of probation which I have ordered, I direct that B.E. comply with the following conditions:

1. Report forthwith to a probation officer at the commencement of the probationary period, and thereafter as required.

2. Reside where directed by the probation officer.

3. No contact, direct or indirect, with the victim.

4. Not to be within 100 metres of 99 Dowling Avenue, Toronto.

5. No weapons, including any BB gun, pellet gun, or imitation firearm.

6. Participate in counseling as required by your probation officer.

7. Attend school or vocational training or employment readiness programming, or seek and maintain employment.

8. Perform 25 hours of community service with the first 6 months of the probationary period.

Additional Orders

[42] I direct that a copy of B.E.'s section 34 report be forwarded to the provincial director and to the facility in which he is incarcerated. I also order that a DNA sample be taken from B.E. and impose a 5 year weapons prohibition on him pursuant to s. 51 of the Act.

December 19, 2013

Justice E.B. Murray