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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Between:

Her Majesty the Queen

— and —

R.R.

(A young person within the meaning of the Y.C.J.A.)

Before: Justice F. Crewe

Reasons for sentence released on: May 30, 2016

Counsel:

• Ms. S. Lee — counsel for the Crown
• Mr. M. Kerbel, Q.C. — counsel for R.R.

CREWE J.:

Introduction

[1] The circumstances of this case are tragic. On August 1, 2014, the lives of two young men, both filled with promise, were changed forever.

[2] One of those young men was R.R., then 16 years of age. He was driving his mother's car while racing with another vehicle, when he struck and killed 18 year old Immanuel Sinnadurai as he rode his bicycle on a city street.

[3] R.R. pled guilty in January of this year, at the outset of his scheduled trial, to dangerous driving causing death while street racing.

[4] My task is to impose a fit sentence. It has to be said at once that no sentence I have the ability to impose will ease the suffering of Immanuel's family, nor can it in any way attempt to measure the value of his too short life.

[5] In the same way, neither will the sentence or the underlying offence define the life of R.R.

[6] That does not of course mean that I do nothing. In these most difficult of cases, we must do what can be done, not to right a wrong, but to impose a sentence that reflects those principles that govern the behaviour of all members of Canadian society, in this case its young persons.

Summary of the Facts

[7] Immanuel Sinnadurai, "Imma" to his family, was 18 years of age on August 1, 2014, and had just graduated high school. He had plans to start university in the fall, and had been awarded a scholarship. His goal was to ultimately study medicine. August 1 was an ordinary summer day, and just as he had done all summer, Immanuel was doing volunteer work at his church on Sheppard Avenue east in Toronto. Just before 5:22 p.m., having finished his work for the day, he got onto his bicycle and turned left to travel westbound on Sheppard Avenue.

[8] A westbound automobile, a BMW 323i sedan, driven by R.R., was in the curb lane of westbound Sheppard Avenue, approaching from a distance. A white Honda Civic was behind him. The two vehicles were racing. The vehicle driven by R.R. was estimated to be travelling 130 kmh as it approached Mr. Sinnadurai, with the Honda at 99 kmh. (Exhibit 1, Accident Reconstruction Report). The posted speed limit was 60 kmh. The vehicle driven by R.R. braked, however it was too late to avoid a collision. It struck Mr. Sinnadurai on the front driver side, still travelling at an estimated 81 kmh, and the force of Mr. Sinnadurai's body shattered the front windshield. He was thrown approximately 20 feet forward, landing on the pavement. His injuries were fatal.

[9] Had the two approaching vehicles been travelling at the posted speed limit, Mr. Sinnadurai would have had adequate time to ride his bicycle to the westbound shoulder safely. (Exhibit 1, Collision Reconstruction Report)

[10] R.R. was 16 years of age, and thus had not long held his G-2 driver's licence. He remained on scene and tried to render assistance to Mr. Sinnadurai. According to eyewitness Mark Ifill, R.R. was in shock. The driver of the Honda tried to coax R.R. to leave the scene, but he remained. (Exhibit 1, Collision Reconstruction Report)

[11] It is a parent's worst nightmare to answer the front door to the somber face of a police officer, hat in hand, grim with the realization that there is no easy way to tell a parent their child has passed. That scenario, had it happened, would have been a comparative blessing in this case. In an unimaginably cruel twist of fate, Mr. Sinnadurai's family learned the news when they arrived at the church shortly after the accident but unaware it had occurred; first the mother and sister, then the father, only to see their beloved son and brother lying on the ground in a pool of his own blood, his twisted bicycle nearby. His sister Hannah saw the bicycle first and asked herself: "... is this … his bike? I saw my brother and from then I knew." (VIS, exhibit 3, Tab 1).

Circumstances of the Victim and the Impact Upon His Family

[12] Immanuel Sinnadurai was a deeply religious young man, and by all indicators bright and mature beyond his years. A family photo, filed as Exhibit 3(a) shows a tall, handsome young man brimming with confidence. His sister, Hannah describes him as very intelligent, and although she was the elder of the two siblings, it was he who helped her with school work. He often spoke to her of his desire to become a doctor, not for the money, but because he liked to help people, which he did often. He was very family oriented, and when relatives would visit he would greet them with great excitement as though seeing them for the first time.

[13] Hannah suffers daily from the trauma of her brother's loss. The sight of her brother's room and his belongings causes her great anguish. On the rare occasion she feels happy, she instantly feels guilty for being joyful while her brother is no longer able to experience joy. She feels understandably angry and frustrated at what has happened to her family.

[14] Immanuel's mother, Ratmany Sinnadurai, is of course heartbroken at the loss of her son. She no longer goes to visit family and friends, and has given up spending time talking on the phone, which she used to thoroughly enjoy. In an expression of grief that perhaps symbolizes the universal bond between mother and son, she can no longer bear to eat the food he enjoyed.

[15] Immanuel's father, Anandarajah Sinnadurai, has not gone back to work, nor has he driven a car since his son's death for fear of hurting someone. He is clinically depressed and under doctor's care, unable to focus very well. He does not like to socialize because others do not understand his grief and pain. The strain has taken an immense toll on his family, including their relationships with each other.

[16] An essay written by Immanuel was filed as an exhibit. (Exh. 3, tab 3). The essay depicts a spiritual young man who suffers the predictable teenage angst from the realization that his friends and acquaintances may not share his enthusiasm for Christianity, while at the same time displaying a heightened level of awareness of the importance of being mindful of the views and needs of others.

Circumstances of the Offender

[17] R.R. is now 18, 16 at the time of the offence. He has just successfully completed his first year of university at the University of Ottawa, and hopes to continue his education there in the fall.

[18] He has no prior criminal record, nor any record for driving offences.

[19] R.R. has displayed remorse for his actions by his plea of guilty, and beyond.

[20] In interview(s) with the probation officer during the preparation of the presentence report, R.R.'s family describe a young man struggling with life since this accident. At the time of the offence, R.R.'s mother and sister were out of the country, and the family decided it was best that he reside temporarily with his uncle and family in Toronto. According to the young man's father, this decision may have saved his life, as it was his view that after causing this fatal accident, his son was capable of taking his own life.

[21] R.R.'s sister, upon returning to Toronto, feared she had "lost" her brother, who had become moody and reclusive. During that same period, his mother felt her son was struggling; his physical appearance had changed and he was not eating. He had become very quiet, and was not interacting with others.

[22] In his own interview with the probation officer, R.R. described heightened levels of anxiety, flashbacks and ongoing sleep disturbances. He blames himself for the offence and recognizes that no parent should ever be faced with having to bury their son. He has seen the victim's father sitting quietly in the courtroom, sometimes crying during the court proceedings. He knows that he has taken their son from them and wishes that he could bring him back.

[23] R.R.'s uncle, Sinna S., with whom he resided while his mother and sister were away, observed that after the accident, his nephew's demeanour changed dramatically. His smile and his laughing spirit all but disappeared, he secluded himself in his room, didn't eat, and rarely spoke. He endeavored to counsel his nephew on several occasions, and found him to be extremely remorseful, often breaking down into tears while discussing the accident. (Exhibit 15)

[24] On the anniversary date of the accident, August 1, 2015, R.R. asked his uncle to drive him to the cemetery so that he could pay his respects to Immanuel. He bought flowers and placed them on the young man's grave, praying and crying in silence. When the probation officer asked R.R. why he had done this, he could only explain that it was something he had to do.

[25] On the day of the sentence hearing, after the submissions of counsel, I asked R.R. whether he wished to say anything on his behalf to the court. He rose to his feet, turned to the family of Immanuel, and told them he was sorry, and that he accepted full responsibility for what had happened.

[26] R.R. described to the probation officer that after the accident, the only thing that got him out of bed in the morning was the fact he had to go to school. He finished high school in 2015. High school students are required to spend 40 hours of community service. R.R. spent 1265. (Exhibit 4)

[27] R.R. has performed more than 500 hours of volunteer activity in his church over the past few years. His pastor describes him as a young man with many commendable qualities who is a great benefit to his church and community. (Exhibit 5).

Positions of the Parties

A. Defence Position

[28] Counsel for R.R. submits that the appropriate sentence is one of a lengthy period of probation with meaningful conditions.

[29] R.R. has no prior criminal record, and is well regarded within his community, as evidenced by the numerous letters of support filed on his behalf.

[30] Counsel further submits that in the event the court concludes a period of custody is required, a short period of open custody is sufficient to address the principles of sentencing as they apply to young persons.

B. Position of the Crown

[31] Crown counsel advocates a sentence of incarceration in the range of 12 months, to be followed by a period of community supervision of 6 months, for a total sentence of 18 months. She submits that the first three months should be spent in secure custody, and thereafter R.R. be moved to open custody, from where he can continue his education at University, returning to the open custody facility each day after class. She does not seek a period of probation, and submits that the custodial sentence, followed by the required period of community supervision, is sufficient.

[32] Ms. Lee submits that no sentence other than incarceration would hold R.R. accountable.

[33] She further submits that in sentencing this young man, I should have regard for the amendment to section 38(2)(f) of the YCJA, which now provides that in sentencing young persons, the court may consider the objectives of denunciation and specific deterrence. (Emphasis added).

[34] Ms. Lee very fairly concedes that in the circumstances of this case, specific deterrence is not a relevant consideration. She recognizes and accepts that R.R. is clearly remorseful and deeply troubled by the consequences of his actions. In short, he has learned a very hard lesson.

[35] She does however submit that I should consider the principle of denunciation, and submits that the drastic consequences of this case demand it.

The Statutory Framework

[36] The principles engaged in sentencing R.R. are statutorily mandated and set out in the YCJA, the relevant portions of which are set out below.

Section 3 — Declaration of Principles

(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

(d) special considerations apply in respect of proceedings against young persons and, in particular,

(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,

(ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,

(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and

(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

Section 38 — Purpose and Principles of Sentencing

(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 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.

(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.

Section 39 — Custody

(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 indictable 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) the 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.

(4) The previous imposition of a particular non-custodial sentence on a young person does not preclude a youth justice court from imposing the same or any other non-custodial sentence for another offence.

(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures.

(6) Before imposing a custodial sentence under section 42 (youth sentences), a youth justice court shall consider a pre-sentence report and any sentencing proposal made by the young person or his or her counsel.

(7) A youth justice court may, with the consent of the prosecutor and the young person or his or her counsel, dispense with a pre-sentence report if the court is satisfied that the report is not necessary.

(8) In determining the length of a youth sentence that includes a custodial portion, a youth justice court shall be guided by the purpose and principles set out in section 38, and shall not take into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under section 94.

(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1), including, if applicable, the reasons why the case is an exceptional case under paragraph (1)(d).

The Principles Applied

[37] One principle which emerges from the appellate authorities is that young persons are to be treated differently for purposes of sentencing than adults. This is a reflection not only of the statutory requirements that govern the sentencing of young persons, but a widely accepted recognition that: "… the approach to the sentencing of young persons is animated by the principle that there is a presumption of diminished moral culpability to which they are entitled." (R. v. D.B. [2008] SCC 25 at para. 45).

[38] The Supreme Court of Canada, in R. v. D.B., further observed, at paragraph 62:

It is widely acknowledged that age plays a role in the development of judgment and moral sophistication. Professor Allan Manson notes that "the general principle that applies to youthful offenders is that a lack of experience with the world warrants leniency and optimism for the future." (The law of sentencing (2001), at pp. 103-4). And Professor Bala describes the YCJA as "premised on a recognition that to be a youth is to be in a state of diminished responsibility in a moral and intellectual sense. Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self-awareness, and they may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why they committed a crime most frequently respond: "I don't know". Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend… This is not to argue that adolescent offenders should not be morally or legally accountable for their criminal acts, but only that their accountability should, in general, be more limited than is the case for adults."

[39] A second important distinction between the sentencing of young persons and adults is the application of the principle of general deterrence. While that principle is often referred to by courts in the imposition of harsher penalties in the sentencing of adults, it has no place in the sentencing of young persons. (see, eg. R. v. A.O., 2007 ONCA 144, [2007] O.J. No. 800 (Ont. C.A.) para. 43).

[40] A significant principle in the sentencing of young persons is the principle of accountability. The Court of Appeal for Ontario, in R. v. A.O., held, at paragraph 46, that accountability is the equivalent of the adult sentencing principle of retribution, which, "… unlike vengeance,… incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more." (citing R. v. M. (C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.C.) at para 80-81).

[41] At paragraph 47 of A.O., the Court of Appeal for Ontario goes on to hold that "… for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, 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."

Analysis

[42] What, then, constitutes a fit sentence in the circumstances of this case? Any meaningful analysis must begin with the acknowledgement that, as noted at the outset of these reasons, the circumstances of this case are tragic. One young man lost his life, a second young man has been changed forever. Furthermore, two families have been devastated. Nothing I have the authority to do will alter those truths.

[43] In a somewhat cruel irony, there is no avoiding the observation that these two young men were of similar character. Both hail from the Toronto Tamil community, both were young, intelligent, motivated, ambitious, family-oriented, religious, and community minded. Both of these young men clearly strived to be productive members of their community, and volunteered their time both to their church and other causes.

Is Custody Available Under the YCJA?

[44] Prior to assessing whether it is appropriate, in the circumstances of this case, to impose a period of custody, it is necessary to determine whether such a sentence is available. Section 39 of the YCJA governs that determination, and orders that a youth justice court shall not commit a young person to custody unless one of a number of statutory preconditions is met. Section 39(a) sets one of those preconditions as the commission of a violent offence.

[45] "Violent offence" is defined in section 2 of the YCJA to mean, amongst other things, "an offence committed by a young person that includes as an element the causing of bodily harm".

[46] While the offence of dangerous driving, absent the required element of bodily harm, does not constitute a violent offence, notwithstanding the reasonable foreseeability of harm (R. v. K. (C.D.) (2005) 2005 SCC 78, 203 C.C.C. (3d) 449 (S.C.C.) at para. 92), the offence of dangerous driving causing death would seem, on its face, to meet the definition of violent offence as set out in section 2 above, as well as the Supreme Court's interpretation of that section, in R. v. K. (C.D.) at para. 87, defining "violent offence" as "… an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm." Neither party has taken the position that a custodial sentence is unavailable. In my view, on the plain language of the statute, a custodial sentence is permitted in the circumstances of this case.

Is a Custodial Sentence Required?

[47] The Youth Criminal Justice Act, s. 39(2) requires that, notwithstanding the availability of a custodial sentence, "… A youth justice court shall not impose a custodial sentence under section 42 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."

[48] Section 39(3) requires that, in determining whether there is a reasonable alternative to custody, the youth justice court shall consider:

(a) the 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.

[49] The alternative to custody proposed by the defence is, as noted above, a period of probation with meaningful conditions.

[50] I sought the views of both counsel during the course of submissions as to the propriety of a condition requiring R.R. to complete a number of hours of community service, the salient objective of which would be the education of other young people on the perils of street racing, whether as an accompaniment to or alternative to custody, in whole or in part. Ms. Lee expressed some scepticism as to whether R.R. is mentally up to the task at this stage, however Mr. Kerbel advised that his client would welcome the opportunity. Indeed, when R.R. addressed the court at the end of the sentence hearing, he expressed a desire to do so.

[51] The Court of Appeal for Ontario addressed such a condition in R. v. Kutsukake (2006), 213 C.C.C. (3d) 80. While the offender in that case was an adult, she was nevertheless a youthful first offender, 20 years of age at the time of the offence. She pled guilty to criminal negligence causing death in circumstances where she towed a 15-year-old neighbour on a joyride, on roller blades, ultimately reaching a speed of 80 kmh, at which point the boy fell and was run over by the vehicle.

[52] In overturning the custodial sentence of 12 months, Justice Sharpe noted that the appellant, having served 41 days in custody, would be better suited to serving the remainder of her sentence in the form of a conditional sentence, which the court increased to 18 months, and required the appellant to perform 240 hours of community service, a significant portion of which was to be in the form of speaking at schools or other like institutions about the dangers of her conduct.

[53] I hasten to add that of course a conditional sentence would no longer be available in that case, and likewise the equivalent sentence of deferred custody is no longer available on the facts of this case since the amendment of the YCJA contained within section 42(5). Nonetheless the persuasive authority of this decision as to the utility of the type of community service being considered herein remains sound.

[54] I am further required by s. 39(3)(c) of the YCJA to consider alternatives to custody that have been used in respect of young persons for similar offences in similar circumstances.

[55] While there is precedent in youth sentences regarding the offence of dangerous driving causing death, I have been referred to no authority involving a youth sentence which involved dangerous driving causing death while street racing.

[56] In R. v. M.W. [2013] O.J. No. 6256, Justice Kelly of this court imposed a sentence of 12 months probation in circumstances where the young person pled guilty to dangerous driving causing death. He had been driving down a major city street, weaving around traffic at high speeds, and was travelling at an estimated speed of 80 to 100 km/h when he collided with a vehicle making a left turn on a yellow light. The driver of that vehicle, a 73-year-old male, was killed. The young person was 17 years of age at the time and had no prior record. As well, he had a promising future.

[57] The sentence of 12 months probation was the subject of a joint submission by crown and defence. In giving effect to the joint submission, Justice Kelly noted first of all that the young person had been on a very strict bail for 19 months, including a condition of house arrest. Furthermore, he noted in paragraph 24 the absence of any evidence of street racing or other horseplay with another vehicle on the road.

[58] In R. v. M.A.N. 2007 ONCA 12, [2007] O.J. No. 124, the Court of Appeal for Ontario upheld a driving prohibition of 10 years, which had accompanied a sentence of six months deferred custody, where the young person had pled guilty to two counts of dangerous driving causing death.

[59] In R. v. F.A.N. 2008 ONCJ 517, [2008] O.J. No. 4236, (OCJ), Justice Devlin imposed a similar six-month sentence of deferred custody, followed by probation on the grounds it was proportionate to the seriousness of the offence and was the least restrictive sentence capable of achieving meaningful consequences and promoting the young person's rehabilitation. (para. 14) In imposing this sentence Justice Devlin noted the comments of Justice McGowan in R. v. M.N. [2004] O.J. No. 5787, where she said:

No parent can ever suffer a worse pain than the grief that comes with a loss of a child in a violent and sudden way. Too many of our youth have been lost on the highways. Cars are a very powerful lure to the young who have yet to appreciate the inherent dangers of driving. Speed is almost inevitable when many young persons get behind the wheel and is the resounding cause of so many accidents. When speed is combined with youthful immaturity and lack of judgment, deaths and mangled bodies are all too frequently the result.

[60] The only authorities to which I have been referred on the sentencing range for fatalities involving street racing are offences involving adult offenders. The seminal authority in this province is that of R. v. Nusrat 2009 ONCA 31, [2009] O.J. No. 120. Mr. Nusrat and two other young men had been racing their vehicles on Highway 400 for a considerable period of time before cutting off a tractor-trailer, which caused the driver of that vehicle to veer into a ditch. He was killed instantly. Witnesses estimated at least one of the vehicles to approach speeds of 200 km/h. As noted by the Court of Appeal at paragraph 16, the three who were racing terrorized drivers and passengers alike for a distance of more than 40 km.

[61] Mr. Nusrat pled guilty to criminal negligence causing death. In overturning the conditional sentence imposed after the accused had served pretrial custody of 11 ½ months, the Court of Appeal held that a fit overall sentence in the circumstances was one of 30 months custody.

[62] In so doing, it is important to note that at paragraph 65, Justice Epstein states:

In my view, the sentence in this case should be one that sends a strong message to the general public, and to those who are members of the so-called street racing subculture, that street racing will not be tolerated. Having regard to the seriousness of the offence and its catastrophic consequences, the objectives of general deterrence and denunciation must be paramount.

[63] While denunciation is a factor that I may consider, general deterrence is not.

[64] It is however my view that while the principle of denunciation is to be applied at the discretion of the sentencing judge, the facts of this case require it. Having considered all of the appropriate principles of the YCJA, the authorities noted above, the facts of this case, and the positions of both parties, it is my view that in accordance with the principles of accountability and denunciation, a period of custody is required. As noted by the Court of Appeal in Nusrat at paragraph 69, "Like every drunk driver, every street racer is a potential killer. The respondent turned this potential into a reality."

[65] I am not persuaded, however that a period of secure custody constitutes, in accordance with Section 38(2)(e)(i) of the YCJA, "… the least restrictive sentence that is capable of achieving the purpose set out in subsection (1)", that of holding R.R. accountable and having meaningful consequences that promote his rehabilitation.

[66] It is my view that having regard for the principles of sentencing set out above, as well as sentences imposed upon other young persons for similar offences, the minimum sentence that can hold R.R. accountable for his actions and furthermore address the seriousness of the offence herein, including its impact upon the victim and the victim's family, is one of 7 months open custody, to be followed by 3 ½ months community supervision, for a total sentence of 10 ½ months, which is in turn to be followed by one year probation. This constitutes a harsher sentence than those imposed upon young persons for similar offences when deferred custody sentences were available and sanctioned by appellate courts.

[67] One of the terms of his community supervision and probation will be the performance of a total of 100 hours of community service, a significant portion of which should be in the form of speaking at schools or other like institutions about the dangers of his conduct.

[68] In addition, R.R. will be prohibited from driving a motor vehicle for a period of 5 years, commencing today's date.

Released: May 30, 2016

Signed: "Justice F. Crewe"