Court File and Parties

Court File Nos.: 14/Y57, 14/Y1024, 14/Y50

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

J.D. and J.R.

Before: Justice Sharman S. Bondy

Delivered Orally: June 30, 2015

Counsel:

• T. Kavanagh for the Crown
• J. Sitter for the Accused, J.D.
• L. Carnelos for the Accused, J.R.

Amplified Reasons for Sentence

1: Background

[1] J.D. and J.R. are both young persons within the meaning of the Youth Criminal Justice Act (hereinafter called the "Act" or "Y.C.J.A."). On January 19, 2015 each entered a plea of guilty to the count of assault causing bodily harm to E.W. with an offence date of June 23, 2014.

[2] This sentencing is governed by the Y.C.J.A. Given J.D.'s age at the time of this offence the maximum sentence for the indictable offence of assault bodily harm is two years pursuant to s. 42(2)(n) of the Act. The Crown seeks the maximum under that section for J.D. in light of the aggravating and mitigating factors in this case. As for J.R., the Crown seeks a further term of six months custody recognizing the reduced nature and degree of her participation in this offence and other factors. The Crown submits that the assaults on E.W. by J.D. and J.R. deserve the utmost of condemnation which can only be reflected by further terms of custody followed by probation. The Crown relies on sections 39(1)(a) and (d) of the Act to support a finding that J.D. and J.R.'s assaults constitute a violent offence and are exceptional so that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in s. 38 and the circumstances of each offender. The defence submits that the appropriate sentence for J.D. and J.R. is time served in pre-sentence custody plus further terms of probation.

[3] On June 30, 2015, I delivered Reasons for Sentencing in this matter as I believed the circumstances of the offence and the circumstances of J.D. and J.R. required a term of custody beyond what they have already served. At that time, I indicated I would provide more detailed Reasons. These then are my amplified Reasons.

2: Circumstances of the Offence Generally

[4] Subsequent to the guilty pleas above, a summary of facts was read in and commented upon by defence and a cell phone video of the assaults upon E.W. was filed and admitted on consent. That video provides a graphic summary of a brutal, prolonged and vicious assault upon E.W. S.B. and N.A., both young persons for the purposes of the Act, and Jordan Murray, an adult, were also present. The other young person, N.A., and the adult are not part of this sentencing hearing. S.B. previously plead guilty before another Justice to the charge of assault bodily harm on E.W. before the cell phone footage of the assault on E.W. was accessed by police authorities and the extent of her involvement in the assault could be determined. The footage ultimately revealed that S.B.'s involvement was much more than she disclosed. On the facts as they were then known, S.B. received a sentence of 18 months probation with a s. 51 Y.C.J.A. weapons prohibition order to remain in effect for two years thereafter.

[5] The video footage reveals that there were multiple individuals present who participated and/or were parties to the assault of E.W. Some participants simply jeered, taunted and encouraged; others simply looked on, failing to intervene and stop the carnage. Certain persons depicted in the video directly participated with forceful blows and strikes to E.W.'s face, head, skull and body. J.D. inflicted forceful, repeated kicks to E.W.'s head and skull area. Throughout the assault on E.W., J.R. and J.D. engage in taunting and jeering behaviour. Unidentified voices can be heard encouraging J.R. to "hit him in the kidneys" instead of the head. Some of the participants in the video footage pull his arms and hands away from his head and face so that J.D. can inflict further blows and kicks. E.W.'s pleadings and cries for mercy are unheeded by J.D. and the others present do not intervene until the very end of the assault.

[6] The video coverage I reviewed was retrieved from J.R.'s cell phone as a result of police authority efforts. The recording itself is not the best quality, it is difficult to say who is saying what, but it does flesh out some details and provides a graphic account of how the assault transpired.

3: Impact of the Assaults Upon E.W.

[7] E.W.'s injuries from the assault are best described as profound, serious, ongoing and still medically undetermined. E.W. suffered a traumatic brain injury with subdural hematoma resulting in bleeding in the brain with resulting buildup of fluid in the brain. His brain density has been reduced by 50 percent with no medical determination as to why this has occurred. Exploratory neurosurgery and the possibility of a shunt to reduce cranial fluid has been recommended. Brain enlargement has contributed to psychological issues for E.W. such as post-traumatic stress disorder, short and long term memory loss, inability to process learning, a language based disability, mood swings with severe anger issues and resulting addiction to drugs and alcohol with a consequent mental health admission to ease the headaches, anxiety and stress that are relentless and ongoing for him.

[8] E.W. also suffers permanent vision loss to his right eye with no peripheral vision to either eye following his assault. His vision loss can never be remedied. Following the assault he was hospitalized in an intensive care unit, then transferred to a palliative rehab unit and ultimately discharged into the care of his parents. He attempted to return to schooling, but was incapable of attending due to psychological, physical and learning difficulties. As of March 2015, he was on a medical leave from school. As of May 2015, he had terminated school.

[9] As of May 2015, the court learned that E.W. has left his parents' care, compromising the medical appointments and surgical examinations and investigations that were ongoing. He was refusing their intervention and yet incapable of making informed and meaningful decisions for himself.

4: The Victim Impact Statements

[10] The court viewed Victim Impact Statements filed by E.W., his mother and his father. They provide detailed accounts of the aftermath of the assault and its impact on their lives; both revealing and heartbreaking. They reflect a young person and family devastated both personally and financially by the effects of E.W.'s assault. E.W. has little recollection of the incident save and except that his best friend, D.D., brother of the young person, J.D., invited him over to J.D.'s residence where he was struck by J.D. and J.D.'s girlfriend. According to his mother, E.W. has little insight into the nature and extent of his injuries and the resulting long term effect on his life, schooling, employment and limited recovery. He expressed that he just wants to go back to his old life; a life which clearly has been irretrievably changed.

[11] As for E.W.'s mother and father, each has suffered the direct and indirect effects of E.W.'s injuries. Extensive time was required at his bed side at hospital due to E.W.'s disorientation and fear. He was hospitalized for 30 days. His mother spent endless hours arranging for ongoing community assistance and rehabilitative services for E.W. after his return home to address his ongoing physical, emotional and psychological issues. Anger and P.T.S.D. (Post Traumatic Stress Disorder) symptoms required ongoing and direct parental supervision and assistance. E.W.'s decision making skills have been compromised resulting in social isolation and curtailment (i.e. he cannot attend the local mall or large gatherings due to his insensitivity to excessive noise).

[12] E.W.'s goal of a car licence and driving a car, becoming a mechanic, participating in sports and entering the military or completing Cadets, have all been compromised. These are achievements he will never realize. Completion of his secondary school degree and ongoing educational and job relating skills are highly questionable if not unattainable given the nature and extent of his injuries.

[13] Financially, E.W.'s father's employment was compromised (i.e. he lost his job as a long distance trucker) due to the demands of providing care for E.W. resulting in loss of income and benefits necessary for E.W.'s ongoing assistance (i.e. psychiatric care, vision and prescription coverage). His mother's employer has allowed for flex hours so she could manage and attend his appointments however with consequent income loss for E.W.'s mother.

[14] E.W.'s father's victim impact statement is a particularly poignant example of what is in store for E.W. He says: "My son may never get back to his old cheerful self that he once was – in fact, as I'm writing this statement I'm not sure what his functional and mental capacity is going to be for the rest of his life. This makes me very concerned as my son will require supervision and assistance for the rest of his life to be able to function in society."

5: Participation of the Young Person, J.D.

[15] The video filed reflects that J.D. was the primary assailant during the assault on E.W. and by far the most morally culpable of all the young persons present. The assault took place in J.D.'s apartment where young persons could party and drink alcohol. J.D. beat E.W. repeatedly in the face, head, full body and back, culminating in an ongoing series of particularly vicious and repeated blows by directly stomping and kicking E.W.'s head and skull area all the while wearing boots and or what appears to be heavy shoes. E.W. is observed as pleading for mercy from J.D. having told him previously that he did not want to fight; that he should not be hit in the area of his head as he had previously suffered a concussion. J.D. is observed as laughing, taunting, telling E.W. to take his hands away from his head and face; only later to deliver further blows and kicks to E.W.'s head, skull and face.

[16] Until the video footage surfaced J.D. blamed the young offender N.A. for the entire assault. He also denied participating in the assault except to assist E.W. when it became apparent that E.W. was seriously injured and requiring medical assistance. J.D. has indicated that alcohol was a factor in the beating however alcohol use is not visible in the video footage. The Crown summary recites that J.D.'s brother called E.W. to hang out at J.D.'s apartment, as J.D. intended to confront E.W. over something he told J.D.'s former girlfriend and J.D. thought E.W. should be punished for ratting J.D. out. In the last few frames of the video footage, it shows that while other participants told J.D. that E.W. had enough as E.W. by now was seriously injured, bleeding and dazed, J.D. kicks E.W. in the head one last time, boasting about it, and can be heard to say, "I felt that one in my teeth."

6: Participation of the Young Person, J.R.

[17] J.R. is observed in the video footage as an active and enthusiastic participant in the assaults of E.W. but does appear to intervene briefly at least two times in an attempt to stop J.D. only to not follow through with those attempts. I agree with her counsel's characterization of her involvement as one of mixed emotions when she is observed as first assaulting, then participating with jeering, delivering more blows and then watches J.D. and does not intervene until E.W. is bruised, bloodied; the assaults terminate when E.W. is in physical and medical distress. J.R. is observed with the young person S.B. initiating the assault on E.W. with repeated blows or strikes to E.W.'s head and face with their fists only. The video reflects that the blows levied are forceful enough to inflict swelling and bruising on E.W.'s face area. At one point in the footage, J.R. tells E.W. to stand up, telling him to do so, so to avoid being hit or struck in the head by J.D. When he fails to do so, either out of fear and or inability, J.R. is observed delivering taunts, threats, and humiliating jeers, ultimately chastising E.W. when he fails to protect himself.

[18] J.R. is not the most culpable party in the assault on E.W., she is not the leader, but levies the first blows with S.B. She does not appear to have inflicted the most grievous harm to E.W. That was likely inflicted by J.D. with his repeated vicious blows and kicks to the area of E.W.'s skull and head.

[19] J.R.'s moral culpability is manifested by her active, at times, what appears to be joyful participation in the assault which can be observed in the video clip. At one point in the footage she can be heard giggling. The video reflects that J.R. did not stop the assault; she allowed it to continue, and as J.D.'s actions became more and more brutalized, she did not intervene or take steps to make it stop. She only finally intervened when E.W.'s distress was apparent at the very end.

[20] The video footage of the assault on E.W. was retrieved from J.R.'s phone. Other participants are observed using other cell phones to capture the events. J.R. did not cooperate with police authorities in retrieving the footage from her phone. It is not clear who taped J.R.'s activity in the assault or whether J.R. taped some portion of the events herself. To my knowledge, no attempt was made to distribute the cell phone video on the internet as arrests of the parties and seizures of the cell phones occurred shortly after the assaults took place.

7: Personal Circumstances of Each Young Person

7.1: As to J.D.

[21] J.D. was born […], 1996 and is currently 18 years of age. At the time of this offence he was 17 years of age. He has a previous youth record for non-violent offences consisting of two counts of theft under $5,000. His present charge is a significant escalation in severity from his previous offences.

[22] J.D. has struggled with keeping a single stable residence for several years. He has exercised poor lifestyle choices, engaged in substance abuse, associates with anti-social peers and reflects a low commitment to school and completing his studies. His relationship with his mother has improved; she expressed she is prepared to offer him a home to reside in (albeit temporarily) upon his eventual release. She opined to the court that he has learned from this experience, expressed his remorse to her and has cried over the harm he has caused. Those same observations are not shared by others working with J.D., nor was J.D.'s obvious remorse (i.e. by crying) demonstrated before this court. She expressed her commitment to resume his care without reviewing the contents of J.D.'s pre-sentence report and its findings and yet has previously asked him to leave her residence out of fear for the harm that J.D. might expose his younger sibling to. J.D.'s mother's testimony reveals someone who is out of touch with the nature and extent of her son's problems and the significant lifetime issues he is facing.

[23] J.D. maintains a relationship with his grandparents who cared for him during a time when his mother relocated to Edmonton, Alberta, leaving him behind in their care. Even while J.D. was in his grandparents' care, the report indicates that his grandmother was an enabler, covering up for his bad behaviour. J.D. does not communicate with his natural father. When J.D. was originally arrested respecting these charges, he was released into his father's custody until his father withdrew his surety when he lost confidence in J.D.'s ability to conform to bail conditions. Between July 7, 2014 and September 3, 2014, J.D. was at large in the community. He eventually presented himself to police authorities on September 3, 2014 and thereafter he has been detained at a secure facility in London, Ontario.

[24] J.D. was exposed to alcohol and physical abuse as a child. He has demonstrated very limited attachment to school having earned only six credits after four years of secondary school. J.D. is described as capable intellectually, with vastly unrealized potential. Previous attempts to have him complete his secondary school diploma with alternative educational opportunities have not been successful as he has failed and/or refused to attend.

[25] As to assessing the level of risk which J.D. presents, the pre-sentence report indicates his level of risk to the community has increased considerably with this charge. He cannot attend a community school as he would likely be refused admission due to the risk of harm he presents to the broader school population. J.D. gravitates towards anti-social peer groups when he is in the community. He is active on social media and uses it as a platform to challenge and threaten others as he believes he has tough friends that will come to his defense. After his arrest on this charge, he posted comments on his Facebook page which his mother expressed concern about. Prior to this charge, he describes himself as a frequent daily user of marijuana with some alcohol use. In November 2013, J.D. was the victim of assault when he lost consciousness at a party due to alcohol use; other partygoers set his pants on fire causing significant burns to his legs which he ultimately recovered from.

[26] J.D. has no previous findings of guilt for violent offences, but there are elements of his past that suggest that he is prepared to use violence, if necessary. His mother found a shank in his bedroom when he resided with her. She contacted the Children's Aid Society (C.A.S.) to assume his care. She believes he might have been involved with a gang. While attending elementary school in the seventh grade, he took a paring knife to school. In February of 2014, J.D. was suspended from school for sending threatening messages over Facebook. His vice-principal found a hammer in his backpack at school. J.D. has been diagnosed with Attention Deficit Hyperactivity Disorder (A.D.H.D.) and is currently taking medications to treat his symptoms.

7.2: As to J.R.

[27] J.R.'s findings are a troubling picture of neglect, abuse, bullying and being bullied, lack of effective parenting and serious and ongoing substance abuse. J.R. is presently 16 years of age and has no previous youth record. She was 15 years of age at the time of the assaults upon E.W. J.R. reports that she experienced a difficult childhood with physical, emotional and verbal abuse by her stepfather. J.R.'s mother denies that J.R. was physically abused by her stepfather but in November 2013, J.R.'s mother separated from her partner and moved to a local women's shelter offering services for victims of domestic violence. For a time, J.R. resided with her biological father who suffers from significant addiction issues and is involved extensively in the criminal justice system. J.R. was allowed to use marijuana when she resided with her father and they smoked it together. J.R. eventually returned to her mother's care from her father's; she was then described as hanging around negative peers, verbally aggressive, running away continually, drinking alcohol and doing drugs. Her mother expressed concern that J.R. was involved in prostitution.

[28] J.R. commenced having suicidal thoughts at 10 years of age which progressed to cutting behaviour by 14 years. In 2012, J.R. was placed in a local residential program for adolescent females experiencing social, emotional and behavioural problems due to conflict issues with her stepfather. She was discharged from this facility one month later following her refusal to follow rules and her verbal aggression.

[29] J.R. suffers from significant substance abuse issues including use of alcohol, marijuana, cocaine and crack cocaine. Her alcohol use commenced at nine years of age; marijuana use at 12 years. At 14 years, J.R. describes her use as chronic and ongoing, even attending school under the influence of drugs. This continued until her present charges. As for J.R.'s schooling experience, she reports a continuing cycle of bullying by classmates. As a result school officials recommended social work intervention. The pre-sentence report indicates that there was a general non-compliance by J.R.'s mother relating to the ongoing recommendations. J.R. has experienced multiple school placements with her secondary school education (i.e. at least three secondary changes) with continuing complaints over her bullying, truancy, skipping classes and exams, poor peer choices and use of improper language. These complaints have resulted in numerous school suspensions. On June 6, 2014, some three weeks prior to the assault on E.W., J.R. received a six month school suspension and possible expulsion for an assault on another student.

[30] In summation, the pre-sentence report indicates that J.R. presents with a complex and wide array of needs, including association with negative peers, serious substance abuse, poor frustration tolerance, verbal aggression when angry and an inability to hold herself accountable for her actions, all of which require ongoing intervention according to the pre-sentence report.

8: Participation of J.D. and J.R. Before the Court

[31] Each of the young persons addressed the court and attempted to address E.W.'s mother who was present to hear them speak.

[32] J.R. expressed she was prepared to accept the consequences of her behaviour, stating she felt sorry for E.W.'s mother as, if it were she, "she would want people to suffer." She acknowledged that she cannot fix herself, that she needs counselling and wants to be helped. She provided little insight into how the events of June 23 transpired. J.R. is a ward of the Children's Aid Society for another six months and it is unclear which parent's care she would return to. She acknowledged that she is selfish, rude and "barely thinks she has a right to say anything." She spoke of her own bullying and expressed happiness at her twice monthly visits with her mother and younger sisters. She reports she has received death threats over this incident.

[33] J.D. offered his feelings of remorse for what he had done. He had very little to say about these events and no insight or explanation for his behaviour.

9: Examination of Alternatives to Custody

[34] The contents of the pre-sentence reports of J.D. and J.R. are instructive of the issue of whether alternatives to custody raised at this sentencing hearing are available, reasonable and appropriate for them and whether a non-custodial sentence would make them accountable and provide just sanctions with meaningful consequences promoting their rehabilitation and reintegration, benefiting the long term protection of society.

[35] I will elaborate.

[36] J.D.'s report reflects that he struggles to accept responsibility for his behaviour, often placing blame on factors outside of himself. While completing a previous course of probation for theft related offences he was extremely resistant to attending programming. He is presently considered a poor candidate for a community service order even failing to complete his community hours toward his secondary school diploma while serving pre-sentence detention. He has not fully engaged in the therapeutic process while in detention and has not put much effort into addressing his underlying issues.

[37] While serving detention J.D. was observed as struggling to demonstrate appropriate behaviour. He uses profane language, demonstrates poor sportsmanship and presents a disrespectful demeanour towards staff and peers. To quote expressly from his pre-sentence report, "J.D.'s response to the situation (the assault upon E.W.) was grossly disproportionate; that he rose to such an extreme level of violence is very concerning, particularly in regards to romantic partners with whom he may be involved with in the future."

[38] As for J.D.'s previous compliance with less intrusive alternatives under the Act, J.D. failed to report as required under his previous probation order due to his unstable living arrangements and general non-compliance. He failed to fully participate in housing, budgetary and schooling assistance. He failed to follow through with a referral to a moral recognition therapy program at a local youth attendance centre. Extraordinary offers of transportation to assist him to attend these services were largely rebuffed and/or simply ignored. Due to continued non-compliance, he was charged with wilful failure to comply.

[39] While serving detention, J.D. has completed an anger management program, a substance abuse program (where he sensationalized his drug use to other youth present) and completed a safe food handling course and a financial literacy course. He also sees a mental health clinician at a local family court clinic. He is described as very guarded - hesitant to reveal details of his personal life - struggles with taking direction, carrying a lot of anger with him, easily offended and over-reacting to seemingly minor issues. As for his schooling, as a result of attending the on-site school at the detention facility, he has completed all of his grade 9 and 10 compulsory credits and with supervision and direction may be able to bring his total number of secondary school credits to 19. He has been offered numerous opportunities to complete his community involvement hours to complete his secondary school diploma requirements, but has not taken advantage of the opportunities offered to him.

[40] J.D.'s mother proposed a plan that he would live with her for a period of two weeks where she would provide him with the time to secure suitable living arrangements and possibly extend that time if his behaviour was acceptable and he was not a negative influence on his three year old brother. As I mentioned previously, she had not reviewed the contents of his pre-sentence report findings and she made the difficult choice of asking J.D. to leave her residence when she considered his behaviour a risk to his younger brother.

[41] The pre-sentence report on J.D. details that there are numerous community based programs available for J.D. at the same non-residential attendance centre which he previously failed to attend pursuant to his previous charges. Programming includes anger management, healthy relationships, domestic violence, a trauma group, and the Moral Reconation Therapy Program which challenges a youth's beliefs, attitudes, behaviours, relationships and increases moral reasoning. Other alternatives to custody include up to 240 hours of programming at an attendance centre, referrals to local treatment facilities offering psychological and psychiatric services and the Opportunity Diploma Program through a local school board which offers individuals the opportunity to earn high school credits through paid or unpaid work.

[42] I now move to the report findings on the other young person, J.R. Immediately following her arrest on this charge, J.R. spent a month and a half in detention for the period June 25 until August 11, 2015 when she was released in the care of the local C.A.S. and then placed in a residential facility outside of her home town. While in detention and while in the care of the C.A.S., she attended a s. 23 classroom and then eventually moved to a community school until she was returned back to in-residence schooling. While in C.A.S. care, J.R. completed two secondary school credits. The report notes that she struggled with her schooling as a result of an A.D.H.D. diagnosis which has never been identified nor accommodated under the Education Act requirements. The pre-sentence findings on J.R. are a complex and confusing mix of findings and opinions. While detained after charge for this assault it took J.R. some time to adjust to rules and expectations and she eventually earned privileges while in custody. She saw a psychiatrist and her suicide risk level was deemed at a medium risk level. She confessed however to stealing a sewing needle the purpose of which was undisclosed in the pre-sentence report. On July 10 and 29, 2014, J.R. was placed on a modified program for verbally abusing staff and aggression towards staff. She did not complete all her Grade 9 credits as she did not complete all her schooling assignments. The reports from the detention facility describe her as focused and working hard relating to school but requiring cues relating to her attitude towards the classroom support worker.

[43] After release from detention, J.R. was not returned to her parents' care but placed in the care of the C.A.S. in a residential treatment facility. J.R.'s classroom teacher reported her as taking pride in school work, forming good relationships with specified staff and community members. From September 2014 until January 2015 she attended school daily at the residential facility and completed two high school credits. Thereafter she was moved into a community school and showed interest in sports and getting a tutor. She attended art therapy and anger management and participated in family therapy with her mother when she visited her mother on weekends. J.R.'s art therapist described her as accepting responsibility for her consequences, recognizing her mistakes and taking responsibility for her previous actions. Her art therapist opined that J.R. was able to see that aggression was a result of her social network, her environment and her family upbringing. The therapist expressed that J.R. recognized the importance of finding better coping skills for her anger and anxiety.

[44] These findings and opinions by J.R.'s art therapist need to be carefully measured against a number of other sources including comments in J.R.'s pre-sentence report relating to her participation in the anger management course, her social worker's findings and her behaviour over time at the C.A.S. treatment facility. Specifically, while at the residential facility, J.R. completed an eight session anger management group where the instructor described that she was unsure what J.R. took from the group. Descriptors for J.R. included acting silly, disruptive, becoming upset, being very disrespectful to her teacher and taking no responsibility for a disagreement with her teacher. Instead, J.R. is described as stating that she (J.R.) was the one who was disrespected. She completed the last two sessions of the anger management course when a new teacher/worker was assigned to ensure that she completed the course.

[45] According to J.R.'s social worker at the C.A.S., her main priority is resuming her life without much further upset. Her worker described her as attempting to minimize this offence and spending most of her time worrying about how the incident will impact her.

[46] J.R. was originally described as making progress when she was surrounded by positive role models, conditions and structure in C.A.S. residential care. As more community time and community schooling was introduced, she was found with a marijuana cigarette and intravenous needles were located in her possession. Descriptors of her personality and behaviour range from non-violent, manipulative, untrustworthy and argumentative. By the time of the sentencing hearing J.R.'s behaviour at the residential facility had begun to deteriorate. She was failing to attend school as a condition of her interim release order. Thereafter she failed to attend court for a related breach, a warrant issued for her arrest and was later rescinded.

[47] The pre-sentence report overall describes J.R.'s behaviour as generally non-compliant and disrespectful, demonstrating verbal aggression towards staff. She is noted as failing to take responsibility for her behaviour and her conflict with staff. Substance abuse issues were confirmed after she returned from community school glossy eyed and avoiding contact. Initially she denied ongoing drug use. She ultimately admitted to using non-prescription drugs.

[48] J.R.'s report summarizes that her mother was unsatisfied with her progress in C.A.S. care as she opined that J.R. was associating with negative peers and using marijuana. At the same time, J.R.'s mother expressed concern about J.R. returning to her care due to her ongoing relationship with negative peers while on weekend visits and the potential of her negative impact on her younger siblings. The pre-sentence findings reflect that the mother and daughter relationship is tenuous and struggling but some progress was demonstrated when J.R. and her mother started to engage in counselling. No reports on the effectiveness of this counselling were admitted on this hearing. Her relationship with her father is not positive and he is described less as a parent model and more so as a friend. Her relationship with her former stepfather is described as extremely volatile with allegations of bullying and abuse.

[49] As of June 2015, J.R. had agreed to a further period of six months wardship and her progress in the C.A.S. sponsored residential treatment facility had declined, as set out above. Previous attempts at C.A.S. residential care and treatment prior to this offence were not successful when J.R. failed to follow rules and her biological father refused to sign consents for assessment.

[50] J.R.'s report details several Y.C.J.A. related agencies in the vicinity of the residential facility she was placed with reduced waiting lists providing substance abuse and psychological services, a non-residential attendance centre offering counselling for choices, homework, tutoring and employment, services for young persons in conflict with the law (Progressive Accountability through Support and Supervision, "PASS"), high risk youth justice programs together with open and closed custody placements. No details were provided of local non-custodial initiatives available to J.R. should she return to her hometown which the report indicates that J.R. prefers to return to. The report details that the closed custody facility recommended focuses on the protection of society, positive re-integration and reduction of recidivism through rehabilitative programs. This structured therapeutic residential setting includes assessment, individual therapy, group and educational programs and job skills for the young person and support for parents.

[51] J.R.'s report is a complex mix of findings. Her childhood and adolescence have been marked with violence, bullying, child-parent conflict, suicidal ideation, substance abuse, associating with negative peers, multiple school suspensions and reports of assaults and verbal aggression on other students. Her A.D.H.D. is largely undiagnosed and untreated. Her schooling has been compromised by her A.D.H.D. and by skipping exams and truancy. Most significant is her inability to hold herself accountable for her actions and behaviours.

10: Analysis of Law

[52] The Act has been the subject of much interpretation since its original enactment in 2003 and subsequent amendments including Bill C-10 which came into force on October 23, 2012. The Act's preamble, sections 3 and 38 all seek to address the spirit and principles of the legislation focusing on the long term protection of the public, an individualized sentencing process and the court's ongoing efforts to reconcile the conflicting principles under the Act. Examples of conflicting principles are the principle of custody as a last resort and fair and proportionate accountability and rehabilitation and reintegration versus the need to impose meaningful consequences and reinforce respect for societal values.

[53] The Act reserves the most serious intervention for the most serious crimes and seeks to reduce over-reliance on incarceration for non-violent crime. As Canada is a signatory to the United Nations Convention on the Rights of a Child, young persons have special guarantees, including the recognition that young persons have diminished moral blameworthiness due to their reduced level of development and maturity.

[54] Part of the preamble of the Youth Criminal Justice Act reads as follows:

...AND WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons; ...

[55] Section 3(1)(a), (b) and (c) of the Youth Criminal Justice Act reads as follows:

3(1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and

(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and

[56] Section 38 of the Youth Criminal Justice Act reads as follows:

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.

(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 acknowledgment 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.

(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.

[57] Section 39(1), (2) and (3) of the Youth Criminal Justice Act reads as follows:

39(1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

(a) the young person has committed a violent offence;

(b) the young person has failed to comply with non-custodial sentences;

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

(d) in exceptional cases where the young person has committed an indicated offence, 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.

(2) If any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

(a) alternatives to custody that are available;

(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and

(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

[58] Section 39 is often coined the gateway to custody subsection. A young person can only be sentenced to custody if one of the gateways is breached. Even then s. 39(a) through (c) requires that the court consider all alternatives to custody raised at a sentencing hearing which are reasonable in the circumstances and determine that those alternatives or combinations thereof are not reasonable and fail to accord with the principles and purposes set out in s. 38 before custody be imposed. If I apply a s. 39(1)(d) finding, even then I am to consider the purpose and principles in s. 38.

[59] In R. v. C.D., 2005 SCC 78, 203 C.C.C.(3d) 449, the Supreme Court of Canada at para. 65 favoured a narrow interpretation to the words violent offence in s. 39(1)(a) preferring a harm-based definition which focused, at least in part, on the bodily harm caused or attempted by a young person. The Court defined violent offence at para. 87 to be an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm.

[60] Parliament has since amended s. 2 to now define violent offence by the following:

"violent offence" means

(a) an offence committed by a young person that includes as an element the causing of bodily harm;

(b) an attempt or a threat to commit an offence referred to in paragraph (a); or

(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

[61] In R. v. R.E.W., [2006] O.J. No. 265, the Ontario Court of Appeal found that s. 39(1)(d) was to be read narrowly and the circumstances of the offence must be so aggravating that nothing less than custody would address the purposes of and principles set out in s. 38. In R. v. R.E.W., supra, a 14 year old was convicted on the charge of accessory after the fact to murder when he was found to know that another party intended to deal harshly and violently with an accused, watched the bodies be cut up with an electric saw and helped dispose of the body parts with the murderer. The young person told no one of the murders and made full use of stolen drugs and money.

[62] In speaking for the majority of the court in R.E.W., Justice Rosenberg, at para. 44, concluded that, in interpreting the application of s. 39(1)(d) of the Act:

"[44]...exceptional cases are those where any order other than custody would undermine the purposes and principles of sentencing set out in s. 38. Put another way, s. 39(1)(d) is intended to describe the rare non-violent (my emphasis) cases where applying the general rule against a custodial disposition would undermine the purpose of the Y.C.J.A."

[63] However, interestingly, in R. v. N.B., [2011] O.J. No. 1715 (O.C.J.), Justice Hearn of this court found that there were at least two gateways to custody under s. 39 of the Act that were appropriate to consider in the circumstances of a protracted sexual assault on a 12 year old victim during a gang rape involving numerous forms of sexual conduct, including incidents of oral and vaginal sex. Relying on R. v. Stuckless, [1998] O.J. No. 3177, he found that the sexual assault had a profound and substantial impact on the victim and was an act of violence. He also found that the acts being violent, deliberate, disturbing and continuing were not only egregious in manner but exceptional for the purposes of s. 39(1)(d). In coming to that conclusion, Justice Hearn, at para. 29 of his judgment, found that cases which refer to section 39(1)(d) use terms like out of the ordinary, unusual, the clearest of cases and where the exceptional nature of the cases will be manifestly capable of judicial explanation.

[64] Largely then, on the basis of these rulings and the horrendous facts and circumstances of this offence the Crown asks me to consider a custodial disposition for J.D. and J.R. as he urges me to find that the circumstances of this offence and these offenders are shocking to the community and deserving of a finding of exceptionality and require the imposition of nothing other than a custodial sentence under the Act. In the circumstances of the case before me, counsel for J.D. agreed that the offence and facts clearly constitute a violent offence for the purposes of s. 39(1)(a). Counsel for J.R. suggested that s. 39(1)(a) might not apply as the evidence was equivocal as to whether J.R.'s blows or strikes or her role as a party to the offence resulted in the actual bodily harm to E.W. Counsel for the Crown primarily referred in argument to the issue of exceptionality within s. 39(1)(d).

[65] Firstly, there is no question in my mind that this is a violent offence pursuant to s. 39(1)(a) of the Act. The evidence put forward on this hearing clearly establishes that the assaults which occurred on June 23, 2014 fit that category. Both J.D. and J.R. gave a guilty plea to the offence of assault causing bodily harm. Although J.D. delivered the vicious blows and kicks to E.W.'s head and skull and was E.W.'s primary assailant, I find that J.R.'s strikes and blows to E.W.'s head and face clearly resulted in bodily harm. My conclusions and findings are apparent simply by viewing the video coverage admitted on the hearing. That coverage shows cuts, abrasions, bleeding, bruising and swelling about E.W.'s face and head as a result of J.R.'s strikes and blows. Moreover, J.R.'s acquiescence and facilitation of J.D.'s brutal assault on E.W. contributed to E.W.'s physical and psychological harm. I conclude that the behaviour of both J.D. and J.R. requires descriptors like egregious, horrific, disturbing and violent.

[66] Secondly, on the issue of whether it is imperative that I conclude these offences are exceptional for the purpose of this sentencing and a s. 39(1)(d) finding, Justice Rosenberg's conclusions in R.E.W. seem to suggest that I may be restricted in making this additional finding as there should be a narrow interpretation to s. 39(1)(d) and it is intended to apply to rare, non-violent cases (my bolding). This leads me to conclude that a s. 39(1)(d) finding may be duplicitous or unnecessary as I have previously concluded that this is a violent offence under s. 39(1)(a). Nonetheless, similar to Justice Hearn in R. v. N.B. (supra), I want to emphasize that here there is at least one gateway to custody in this case under s. 39(1)(a) and the court is of the view that s. 39(1)(d) is also appropriate. I find the deliberate, disturbing and continuing assaults upon E.W. by J.D. and J.R. are nothing short of shocking, horrifying and clearly unacceptable in this community and for Canadians overall and exceptional for the purposes of s. 39(1)(d). To use the language in the case law, the behaviour and/or offence is unusual, clear, its exceptional nature is manifestly capable of judicial interpretation and threatens widely shared community values. The violence reflected is shocking. Added to that is the phenomena that at one or more of the young persons involved in the offence videotaped these events via cell phone technology.

[67] Regarding the issue of proportionality, the Court of Appeal in R. v. A.O., 2007 ONCA 144, [2007] O.J. No. 800 defined it as the upper limit on a sentence that can be imposed on an offender. Even if a long sentence were deemed necessary to rehabilitate the offender and him or her accountable, the sentence must not be longer than what would be proportionate to the seriousness of the offence and the offender's degree of responsibility. In that same ruling, the Court of Appeal defined the concept of accountability as the equivalent of 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. Moreover, denunciation and specific deterrence are relevant principles when sentencing a young person provided the sentence is proportionate to the seriousness of the offence and the offender's degree of responsibility. See: ss. 38(2)(c) and (f).

[68] Further defence considerations in this matter which I have been directed to include in my deliberations include but are not limited to the young persons' terms and circumstance of pre-sentence custody, that my punishment not be greater than what would be appropriate for an adult in similar circumstances with a similar offence, that my sentence be similar to other young person's sentences in similar circumstances for a similar offence and other aggravating and mitigating circumstances of J.D. and J.R. See: ss. 38(1)(a)(b)(d) and (f).

[69] A final consideration in this sentencing is my review of all alternatives to custody raised at this hearing that are available and reasonable for J.D. and J.R., the likelihood that J.D. and J.R. will comply with a non-custodial sentence considering their previous compliance with previous non-custodial sentence(s) and alternatives utilized for other young offenders in similar circumstances for similar offences. I am also mindful that I should not use a custodial sentence as a substitute for child protection, mental health or other social measures for J.D. and J.R.

11: Calculation of the Sentence

[70] I now move to list those considerations that I have reviewed in coming to the conclusions that I have.

[71] In R. v. A.S., [2013] O.J. No. 5580, Justice Bloomenfeld presided over a case which involved a brutal inexplicable attack on two victims at a sweet sixteen party where four young persons participated in an assault upon two victims; one wielded a weapon and inflected the most serious, potentially devastating injuries. Her Honour found that the aggravating and mitigating factors of the case fell into two categories: those that pertained to all of the young persons equally and those that related to each individually.

[72] I propose to do the same with J.D. and J.R.

[73] The common aggravating factors in this offence are as follows:

1. J.D. and J.R. instigated the violence;
2. Descriptors of the attack are senseless, vicious, repetitious, prolonged;
3. The victim was unarmed and outnumbered. He did nothing to provoke the attack on him;
4. The victim's pleas for mercy and attempts to protect himself were unheeded; the attack continued amidst jeering, taunts, laughter and boasts;
5. The attack was videotaped for reasons unknown;
6. The victim suffered severe and catastrophic injuries permanently and substantially impaired his daily life;
7. The attack only ended when the victim was in serious physical and medical distress; and
8. J.D. and J.R.'s callousness is exacerbated by leaving E.W. lying on the ground and not immediately seeking medical treatment for him.

[74] J.D. and J.R.'s common mitigating factor is their guilty pleas to this offence. Those guilty pleas are deemed to demonstrate remorse and acknowledgement of responsibility. As a result, E.W. and others were saved the burden of testifying at trial. Their guilty pleas were entered before the video tapes of the incident were retrieved. Whether J.D. and J.R. are sick, disgusted, ashamed, sad, depressed and/or horrified when they think about the events of this offence remains to be seen. Without detailed s. 34 assessment findings (which I would note were not sought or obtained) it is difficult to conclude whether their expressions of remorse are genuine or sincere. All that can be said is that both have both expressed words of remorse through their guilty plea and their statements before the court.

[75] The specific aggravating factors pertinent to J.D. are enumerated below:

1. He was the primary assailant in the assault on E.W. He engaged in a sustained, deliberate and repeated attack on E.W. He was frighteningly aggressive, vicious and determined;
2. His repeated strikes, kicks and blows to E.W.'s head and skull can only be described as a rampage. He did not use a weapon per se, but the level of his violence was high and he did so despite E.W.'s pleas that he not hit him in the head as he had a previous concussion;
3. The nature and degree of his use of violence caused serious and grievous injury to E.W.;
4. J.R. used his brother, E.W.'s friend, to lure E.W. to the apartment where he engaged in the attack on E.W.;
5. J.D. blamed others for the carnage until the video surfaced reflecting on his participation in the assault on E.W.;
6. Pre-sentence report findings reflect that J.D.'s level of risk has increased considerably with this offence and is a significant escalation in severity from his previous offences. His conduct prevents him from attending a community school, he gravitates towards negative peer groups and uses social media to challenge and threaten others;
7. As for J.D.'s compliance with non-custodial orders under the Y.C.J.A., overall he was resistant and uncooperative; failed to comply with community supervision; failed to complete required counselling; failed to complete a moral reconation program and continued to demonstrate wilful non-compliance to conditions of probation ultimately resulting in a charge of failure to comply; and
8. While serving time in custody during detention J.D. has not demonstrated motivation or maturity to address the factors that contribute to his criminal behaviour or to pursue a more pro-social path. He is described as guarded, resistant to reveal details of his life, carries anger and even failed to complete his community service hours to complete his secondary school diploma requirements.

[76] It is difficult to point to specific, additional mitigating factors in J.D.'s case. I suppose it can be said that he does not have a previous youth record for violent offences, but he has a documented history of bullying, willingness to use violence, some substance abuse and serious transiency. He enjoys sports, but demonstrates poor sportsmanship during organized activities. He is talented in art and technology and shows a talent for design. Unfortunately, he has failed to willingly and effectively participate in less intrusive options such as counselling and schooling offered to him under previous orders. Overall he does appear to have the ability to complete his schooling IF he is in a structured and predictable setting.

[77] The specific aggravating factors for J.R. are as follows:

1. J.R. initiated the assault on E.W. by blows and strikes to his head and face with a closed fist and participated in the torrent of violence that followed. J.R. was an active and enthusiastic participant including use of threats, jeers, taunting, giggling, humiliating and chastising behaviour towards E.W.;
2. Once J.D. advanced on E.W., J.R. failed to intervene effectively, to protect and show mercy for the defenseless E.W. She had many occasions when she had the opportunity to step back and appreciate that her conduct was entirely inappropriate. She failed to do so;
3. J.R.'s pre-sentence report findings include concerns that she associates with negative peers, suffers a serious substance abuse problem, demonstrates poor frustration tolerance, exhibits verbal aggression when angry and is unable to hold herself accountable for her actions;
4. While J.R. spent a month and a half in pre-trial custody she took time to adjust to rules and expectations. On two occasions she was placed on modified programs and cues for abusing staff and demonstrating aggression towards staff. She confessed to stealing a sewing needle. After release from pre-trial custody and after conditions and support in C.A.S. residential care were relaxed, J.R.'s behaviour deteriorated once again; demonstrating silliness, disruption, upset, verbal disrespect and aggression towards teachers, taking no responsibility for her behaviour, abusing drugs, and failing to regularly attend school. She was breached for her wilful non-compliance when she failed to regularly attend school which was a condition of her release. Descriptors of her behaviour include non-violent, but manipulative, untrustworthy and argumentative. Her progress at the C.A.S. residential facility is described as deteriorating. She has few, if any, appropriate family supports to resume her care;
5. While on weekend home visits, J.R.'s mother expresses concern about her ongoing relationship with negative peers and her return to inappropriate behaviours; and
6. J.R.'s C.A.S. social worker describes her main priority as resuming her life without further upset, attempting to minimize this offence and spending most of her time worrying over how this incident will impact her.

[78] The specific mitigating factors for J.R. are as enumerated:

1. J.R. has no previous criminal record and no involvement in the criminal justice system when she committed this offence however there are documented school incidents of bullying, use of improper language and an assault on another student three weeks prior to the assault on E.W.;
2. J.R.'s physical contributions to the assault were less egregious than J.D.;
3. J.R. has expressed some remorse and understanding through her art therapy however these findings are to be measured against her lack of good progress while serving pre-sentence custody and her deterioration in C.A.S. residential care;
4. J.R. has endured bail conditions after August 2014, including placement in C.A.S. care and separation from her family at a time when her friends have enjoyed the freedoms and benefits of attending high school and other pro-social teenage activities;
5. J.R. suffers from A.D.H.D. and a serious substance abuse problem; both of which have been largely undiagnosed and untreated;
6. While attending an on-site school at the C.A.S. residential facility, J.R. completed two secondary school credits and initially showed progress provided strict supports and conditions were in place. She completed with assistance an anger management and successfully completed art therapy counselling; and
7. J.R.'s history of inadequate parenting exposed her to neglect, abuse, bullying and being bullied, lack of follow through with recommended supports and serious and ongoing substance abuse.

[79] In addressing the issue of accountability, I am satisfied that J.R. engaged in the most intentional risk taking by perpetrating a violent attack upon to E.W. with his repeated blows and kicks and introduced the most consequential harm to E.W. As far as the normative character of his conduct, J.D.'s conduct constitutes an egregious affront to societal norms. As for J.R. she was a full and aggressive contributor to the assault upon E.W., she initiated the assault but she did not levy the most grievous harm and consequences to E.W. and her behaviour did not violate societal norms to the same degree as J.D.

[80] I have considered all potential sanctions other than custody and have concluded that none of them would hold these young persons accountable for their offence nor would any of them provide meaningful consequences or truly promote the young persons' rehabilitation and reintegration. Further, I have concluded that the sentences that I am imposing accomplish all of the goals set out in s. 38(2)(e) as they are the least restrictive sentences capable of achieving the purposes of sentencing in s. 38(1), the sentences most likely to promote these young persons' rehabilitation and reintegration into society as well as to bring home to them a sense of responsibility and acknowledgment of harm they have caused E.W. and his family. Moreover, I have specifically addressed my mind to s. 39(2) and (3) and s. 38(2)(d) and I am satisfied that the non-custodial alternatives either previously utilized with each young person and/or now available are simply not sufficient or appropriate to deal with their attitudes, behaviours, issues and problems.

[81] Lastly, I am not satisfied that the goals of sentencing can be addressed without a custodial order in a secure custody setting. Each of these young persons needs the structure and supervision and services that are available in a secure custody setting. For J.D. and J.R. their pre-sentence custody with this assault and for J.D. his previous non-custodial interventions under the Act have achieved little long or short term progress, particularly relating to their maturity, their motivation towards rehabilitation and reintegration, their little apparent insight into the nature of this offence, the importance of education and the dangers caused by substance abuse and unwise peer associations. The pivotal role bullying and abuse have played in the formation of these young persons is an area which requires a structured, supportive network of resources that non-custodial options have not achieved nor can the C.A.S. residential facility address.

[82] The moral culpability of each of these young persons is high but their respective degrees of responsibility and participation are different. The maximum sentence for custody and supervision that I have imposed falls far below what an adult would receive.

[83] Counsel did not provide an analogous case from which a definitive range could be determined in this matter as either the cases pertained to multiple counts of aggravated assault and/or a group sexual assault. This case can be contrasted with R. v. N.B. where the young person entered a guilty plea, participated in providing crucial evidence against an adult involved in the same offence, demonstrated sincere and genuine sorrow, undertook a course of counselling where his counsellor spoke highly of him, had a supportive family network, had suffered emotionally following the group assault and his pre-sentence report was by and large favourable. In R. v. A.S. the court considered the young persons' conduct egregious but the depth and sincerity of their remorse, their successful terms of pre-trial custody, principles of parity together with scrutiny of their personal circumstances (i.e. one offender was described as leading an exemplary life) all mandated equal sentences.

[84] Such are not the circumstances here for the reasons I have previously delineated. Moreover, I am not persuaded that principles of parity relating to the young person, S.B., apply here as the full extent of the seriousness of this offence and her degree of responsibility and participation was not available at the time of her sentencing.

12: Conclusion

[85] My starting point with J.D. is that in order to reflect the aggravating factors and to meet his rehabilitative needs the appropriate sentence is the maximum of two years. J.D. has spent 303 days or 455 days (on enhanced basis of 1.5) in custody since the date of his conviction. That leaves remaining a sentence of 270 days of custody to be served with 180 days of secure custody followed by 90 days of community supervision. This term of custody is to be followed by an order of probation for two years upon the following terms:

1. Keep the peace and be of good behaviour.
2. Appear before the court when required to do so.
3. For the first six months of your order, report to the Youth Probation Office, located at 1540 McDougall, Suite 1, every Friday at 2:00 pm with the exception of Statutory Holidays. Do not miss any appointments unless given written permission from your Youth Court Worker. After the first six months report to your Youth Care Worker as directed. Abide by a curfew as set by your Youth Care Worker. Attend and actively participate in any counselling as directed by your Youth Care Worker.
4. Live at a place approved by the Youth Worker and not change that address without obtaining the consent of the Youth Worker in advance.
5. Do not associate or communicate directly or indirectly with: J.R., S.B., N.A. or Jordan Murray.
6. Do not associate or communicate directly or indirectly, including social media, with: E.W. and not attend at any place of residence, employment or education of E.W.
7. Make reasonable efforts to seek and maintain suitable work or attend a suitable education program.
8. Do not possess any weapon(s) as defined by the Criminal Code of Canada (for example, but not restricted to: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
9. Do not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in your name or those available over the counter.
10. Attend the New Beginnings Non-Residential Attendance Centre, and complete the Moral Reconation Therapy Program, and attend substance abuse programs. Abide by the programming schedule set by the Non-Residential Attendance Centre, and do not be absent from the programming without the written consent from your Youth Care Worker.

[86] There will also be a DNA order and an order under s. 51 of the Act (weapons prohibition) for two years.

[87] For J.R. in order to reflect the aggravating factors that apply to her, her rehabilitative needs yet to be achieved and her reduced degree of responsibility she shall serve an additional sentence of six months to be served with four months of secure custody followed by two months of community supervision. In arriving at this balance of time to be served, I have considered J.R.'s pre-sentence custody of 49 days or 74 days (on an enhanced basis of 1.5). The term of custody of six months is to be followed by 18 months of probation on the following terms.

1. Keep the peace and be of good behaviour.
2. Appear before the court when required to do so.
3. Report in person to a Youth Worker immediately of your release from custody and after that, at all times and places and directed by the Youth Worker or anyone designated by your Youth Worker to assist in your supervision.
4. Maintain enrollment in a full-time education program and provide proof of progress and attendance to supervising Youth Court Worker.
5. Not to purchase, possess or consume any non-medically prescribed drugs, including marijuana.
6. Do not associate with anyone known to have a youth court record or a criminal record with the exception of immediate family members or with the express written permission of your Youth Court Worker.
7. Not to associate or communicate directly or indirectly with E.W., F.P., N.A., S.B. or J.D.
8. Reside at a place approved by your Youth Court Worker. Abide by the rules and expectations of that household, and not change your place of residence without prior written permission of your Youth Court Worker.
9. Abstain from owning, possession or carrying any weapons as defined by the Criminal Code of Canada.
10. Attend counselling, assessment or treatment as directed by the Youth Court Worker.
11. Not to purchase, possess or consume alcohol.

[88] There will also be a DNA order and a weapons prohibition order under s. 51 of the Act.

Released: August 26, 2015

"Original signed and released"

Sharman S. Bondy Justice