WARNING

The court hearing this matter directs that the following notice 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Ontario Court of Justice

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

Date: 2015-08-11

Court File No.: TORONTO

Parties

Between:

Her Majesty the Queen

— AND —

W.R., a young person

Before: Justice E. B. Murray

Reasons for Judgment released on August 11, 2015

Counsel:

• Ms. Sarah Defilippis, counsel for the Crown
• Mr. Joe Louch, counsel for the accused young person

Decision

MURRAY, E. B. J.:

[1] The Offence and Guilty Pleas

[1] W.R. pled guilty to charges of assault with a weapon and aggravated assault in connection with an incident which took place on November 3, 2013. After findings of guilty were entered, a pre-sentence report was ordered and he was put over for sentencing. This is my decision on sentence.

[2] At the sentencing hearing I received in evidence the pre-sentence report (PSR) and a letter from Central Toronto Youth Service about W.R.'s participation in the Early Release Program, and heard evidence from Elery Macaraeg, the author of the PSR.

[3] The Crown submits that the appropriate sentence in one of 9-12 months of custody and supervision, followed by 18 months of probation. The defence submits that, given the lengthy period of house arrest to which W.R. has been subject and other mitigating factors, that a probationary sentence is sufficient to meet the objectives of the Act in this case.

1. The Offence

[4] W.R. told the author of the PSR that he planned this attack because one of the victims had previously robbed him. He was assisted by two other young men, K.K. and C.C., and a young woman, T.P. Near midnight on November 3, 2013, T.P. knocked on the door of the N home. Two young brothers, Charlie (aged 22) and Winston (aged 20) lived there, with their mother and uncle, H T.

[5] T.P. knocked on the door on the home, and Winston answered. He did not know T.P., but when she told him that his friend Steven was outside and needed help, he believed her. Charlie and H T saw Winston leave the house. Once outside, Winston saw that his friend was not there. He was confronted by three men whose heads were covered by hoods, who attacked him. Winston's hand was cut with a knife that one man swung at him; he fell to the ground, and was kicked and hit by the males.

[6] Charlie grabbed a baseball bat and ran to help his brother. T.P. and two of the males began to hit Charlie. Charlie was stabbed three times in the torso, and fell to the ground. H T ran to help. He was hit by T.P. and retaliated with a metal bar. The attackers fled; the males were arrested within a few minutes nearby.

[7] Charlie's blood and flesh was found on a knife in W.R.'s pocket.

[8] Charlie lost a lot of blood, and lost consciousness. His mother feared he would die. He spent four days in hospital, and required surgery to repair damage to his diaphragm and his spleen. Six months after the attack, he still was in pain from his injuries. Winston suffered a deep cut to his hand and cuts and scratches on his neck. H T suffered no injuries.

[9] None of the victims were able to describe their assailants to police, or furnish any reason as to why they might have been attacked. The Crown indicates that they were reluctant to give evidence if a trial was required.

[10] W.R. and the other males were drinking heavily on the night of the attack. He admits stabbing Charlie at least one time. W.R. says he only stabbed Charlie to help one of his friends when Charlie came out of the house with the baseball bat.

[11] I took guilty pleas from T.P., K.K., and C.C. with respect to this incident on charges of assault or assault with a weapon. There was no evidence that any of them used a knife in this assault. T.P. admitted to using a "metal object" to hit H T, and K.K. and C.C. admitted to assaulting Winston. The Crown and defence made joint submissions in these cases for probationary sentences of between 18-24 months, and I acceded to those submissions.

2. The Offender

[12] W.R. is now 19 years of age; he was 17 years old at the time of the offence.

[13] He has no criminal record, as a youth or adult. After he was detained for two days, he was released on house arrest, with some exceptions. He could leave the home for purposes of employment, school, counseling or other programming, or when in the company of one of his three sureties (his parents and aunt).

[14] W.R. has not breached his recognizance during the lengthy period since he was charged.

[15] The report from the CTYS Early Release Support Program advises that W.R. was motivated and participated well in individual weekly counseling which focused on issues such as "peer pressure, problem solving, conflict resolution, anger management, substance abuse, gender roles and anti-violence initiatives".

[16] Although prior to this offence W.R. had not shown much interest in school, with the assistance of a CTYS worker he enrolled in a co-op program at D. Secondary. He has completed 14 credits.

[17] W.R.'s parents separated about five years ago. W.R. and his three younger siblings remained with the mother, but W.R.'s father, Mr. C., maintained a good relationship with him. In 2012 Mr. C. moved to El Salvador, and W.R.'s behavior deteriorated. He moved to live with his aunt. Mr. C. returned to Toronto to help supervise W.R. about a month before this offence.

[18] W.R.'s parents and his aunt report that his behavior has improved significantly since this offence. His mother was concerned that he abused alcohol and used drugs in the past, but she now does not have that concern. W.R. has a girlfriend whom his parents and aunt believe is a "good influence" on him. W.R. advised the author of the PSR that he ended his friendships with his co-accused after the offence. He now devotes himself to work, family, his relationship with his girlfriend, and working out at the gym. W.R. advised that he would like to complete secondary school and attend college.

[19] W.R. has achieved remarkable success in his work. With his father's assistance, he obtained a job in construction as a co-op student. He now has full-time permanent employment, and earns $75,000 annually.

[20] W.R. told the author of the PSR that he did not feel bad about what happened to the victims, given that they had robbed him.

3. Sentencing Principles

[21] Section 38(1) of the Youth Criminal Justice Act sets out the purpose of sentencing under the Act:

"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"

[22] The Act goes on to elaborate the principles to be applied in sentencing.

38(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.

[23] The Ontario Court of Appeal has explained that the concept of "accountability" found in the Act is the equivalent to the adult sentencing principle of retribution, reflecting "the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct"[1].

[24] Here the "door to custody" is open, because W.R. has committed a violent offence. Despite that, I must consider first whether there are reasonable non-custodial alternatives available[2]. I must impose the least restrictive sentence that is proportionate, considering the seriousness of the offence and W.R.'s degree of responsibility. I must impose a sentence that also promotes W.R.'s rehabilitation and re-integration into society.

4. Application to This Case

4.1 Aggravating Factors

[25] There are several aggravating factors in this case.

• The crime was premeditated. It was not the result of a spur of the moment bad decision. W.R. armed himself with a knife before going to the N house.

• Of all the offenders, W.R. played the most significant role in this incident. He attacked both Charlie and Winston. He used a knife to stab Charlie. The harm caused was reasonably foreseeable, if not intentional.

• Charlie suffered extremely serious injuries, necessitating two surgeries and causing pain which lasted at least six months after the attack.

• The crime was an act of revenge by W.R. for a wrong allegedly perpetrated against him. As Courts of Appeal around Canada have observed, the decision by an offender to take justice into his own hands is destructive to society as a whole[3]. Toronto has regularly been jarred by crimes in which one young man takes revenge against another, rather than contacting police to do their job.

• W.R. has made no reparation to the victims or to the community.

• The crime was a cowardly attack perpetrated by hooded men at night outside the victims' homes. People have a right to feel safe in their homes and their neighborhoods; crimes which erode that feeling of safety are destructive to society.

• W.R. lacks insight into the factors which likely contributed to his conduct on the night of November 3, 2013. Although police report that he was very drunk that evening, W.R. denies that he has or had a problem with alcohol use. Despite the fact that W.R. admits that he participated in the attack to revenge himself against one of the victims, W.R. claims that he is a calm person who has no problem in managing anger. Since W.R. does not see himself as having any problems which contributed to his actions that night, he has not engaged in any counseling or treatment.

4.2 Mitigating Factors

[26] There are also significant mitigating factors in this case.

• W.R. has no criminal record.

• W.R. pled guilty in circumstances in which the Crown's case was made more difficult because of the victims' reluctance to testify.

• W.R. has been subject to fairly strict bail conditions for more than 21 months, and has complied with those conditions. More will be said below about the weight properly given to this factor in this case.

• W.R. has worked hard toward rehabilitation since this offence. He has acquired more school credits, and achieved an impressive work record, a record of the type I have not seen in the sentencing of other young people. W.R. has the strong support of his family and girlfriend, and has shed the negative peer relationships which caused difficulties for him in the past. His history since the offence involves pro-social activity.

[27] W.R.'s lawyer points to appellate caselaw in arguing that the time his client has spent under house arrest should lead the court to impose a non-custodial sentence. In R. v. Downes, 208 O.A.C. 324, the Ontario Court of Appeal dealt with a case in which the offender had been subject to house arrest with none of the usual exemptions. The Court took that factor into account in reducing the sentence imposed by the trial judge, and held as follows.

• Stringent bail conditions, such as house arrest, must be taken into account in sentencing.

• The amount of credit to be given is within the discretion of the trial judge, and will depend on a number of factors, such as length of time spent under house arrest, the stringency of the conditions, the impact on the offender's liberty, and the ability of the offender to carry on normal relationships, employment and activity.

• If the offender asks that his bail conditions be taken into account on sentencing, he must supply information as to the impact of the conditions on him. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities.

[28] In R. v. Ijam, 2007 ONCA 597, the Court of Appeal dealt with a case in which the offender did not demonstrate that strict bail conditions involving five weeks of house arrest had imposed "undue hardship" on him. The trial judge had not reduced the offender's sentence on account of these conditions. The Court of Appeal held that it was open to the trial judge to conclude that any impact of the period of house arrest was outweighed by other sentencing considerations.

[29] The Crown points out that W.R. has offered no evidence as to the impact of the terms of his bail on him. She says that it appears that he has been able to enjoy many normal activities, and argues that his house arrest should have little or no impact on the sentence I impose. The defence replies that common sense dictates that I infer that the terms of bail were onerous for a teenage boy. I agree with the Crown that W.R. has been able to enjoy some of the activities of a "normal life" while on bail. He has been able to work and to go to school. However, he has, for almost two years, been required to be in the company of a parent or his aunt if he is to be outside his residence for other purposes. I accept defence counsel's assertion that such a restriction for such a lengthy period is onerous for him as a teenager, and should be considered by me in crafting an appropriate sentence.

4.3 Sentences in Similar Cases

[30] Caselaw presented by counsel with respect to the sentencing of other young persons guilty of offences similar to those committed by W.R. indicates that Courts of Appeal have determined that in such circumstances a non-custodial sentence is not a fit sentence[4].

• In R. v. D.S., 2008 ONCA 740 a 16 year old offender was one of a group that kicked and punched a victim whom had been involved in a prior dispute with the group. D.S. was found guilty of aggravated assault. D.S. was not the main perpetrator and in fact did not himself deliver any blows. The victim suffered brain damage. D.S. was aboriginal and had a prior criminal record and "a tragic upbringing". The Ontario Court of Appeal upheld the trial judge's finding that a custodial sentence of 24 months was appropriate, after reducing the sentence to give appropriate credit for pre-sentence custody of 7 months.

• In R. v. K.O., 2009 MBCA 13 a 16 year old offender with no prior record participated in a home invasion in order to avenge a friend who claimed she was abused by her step-father. The victim grabbed K.O., and K.O. stabbed him. The victim suffered two collapsed lungs. K.O was found guilty of aggravated assault and entering a dwelling house. K.O. was extremely remorseful, had strong family support, and was assessed by a psychologist as low-risk to re-offend. The Ontario Court of Appeal found that the sentence of 2 years' probation imposed by the trial judge was unfit, and that a 6 month sentence of custody and supervision was appropriate. However, because of the lengthy period between the sentencing and the appeal during which K.O. had made "great strides", the Court declined to vary the sentence.

• In R. v. K.L., 2009 ONCA 602 a 15 year old offender with no prior record was found guilty of assault causing bodily harm. K.L. was part of a group which went to a plaza to confront young men from another group. K.L. played a significant role in the assault on the victim, who suffered a broken jaw and concussion and lost two months' work. K.L. had strong family support. The Ontario Court of Appeal set aside a probationary sentence as unfit, substituting a 6 month sentence of custody and supervision.

4.4 Conclusion

[31] In my view, the aggravating factors in this case are so significant that I must impose a custodial sentence on W.R. in order to hold him properly accountable for his actions on November 3, 2013.

• The objective gravity of the offence – a revenge attack by hooded males in a residential neighborhood outside the victims' home – is high. The offence is of a type that is a serious concern to society.

• W.R.'s participation in the offence was at a very significant level – he participated in its planning, brought a knife to the attack, and used the knife.

• The harm caused by the offence was very serious. Charlie required two surgeries, and was in pain for months following the attack.

[32] I do not, however, find that a custodial sentence is required to assist in W.R.'s rehabilitation and integration back into society. In fact, I have some concern that such a sentence would have an adverse effect in that respect, by exposing W.R. to negative influences of the type he has left behind. If it was open to me, I would seriously consider imposing a sentence of deferred custody. However, because of recent amendments, that is not possible.

[33] Considering all the circumstances, I find that the most appropriate sentence is one of 4 months custody with 2 months of community supervision, subject to adjustment for the lengthy term of house arrest to which W.R. has been subject. Taking that restriction into account, I find that the appropriate sentence is one of 90 days custody and 45 days of community supervision and a period of 24 months' probation. The term of custody and supervision shall commence on September 5, 2015. The probationary term shall commence today, be suspended during the term of custody and supervision, and re-commence when the term of custody and supervision is concluded.

[34] I order that W.R.'s custodial sentence be served in an open facility. Since the province of Ontario has not provided that young persons may serve an intermittent sentence, I strongly recommend that he be given immediate release for the purpose of continuing his employment.

[35] I order that W.R.'s 2 days of pre-sentence custody be noted on the record.

Probation Terms

[36] The terms of W.R.'s probation are as follows:

1. Report forthwith to the provincial director, and thereafter, as required.

2. Participate in counseling as directed by your probation officer and sign releases to allow the probation officer to confirm your participation.

3. No contact, direct or indirect, with W. N., C. N., H. T., T.P., K.K. or C.C.

4. Not to possess any weapons as defined by the Criminal Code.

5. Make reasonable efforts to attend school or seek and maintain employment.

[37] A section 51 order for 5 years and a DNA order shall issue.

Released: August 11, 2015

Signed: Justice E. Murray

Footnotes

[1] R. v. A.O., 2007 ONCA 144, O.J. 800

[2] Youth Criminal Justice Act, s. 39(2)

[3] R. v. K.O., 2009 MBCA 13 at para. 36; R. v. Samilov, 2013 ABCA 261 at para. 60.

[4] See R. v. D.S., 2008 ONCA 740; R. v. K.O., supra; R. v. K.L., 2009 ONCA 602