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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Date: 2017-08-14

Between:

Her Majesty the Queen

— AND —

M.G., a young person (or "young persons")

Before: Justice P. Griffiths

Heard on: February 17, May 9, 10, 23, June 13, 21, August 9, 2017

Reasons for Ruling on Application released on: August 14, 2017

Counsel:

• Moiz Karimjee, counsel for the Crown
• Jasna Drnda, counsel for the accused M.G.

Decision

Griffiths J.:

The Guilty Plea

[1] On February 17, 2017 M.G. pled guilty in youth court to the following offences:

1. Between the 12th day of November in the year 2016 at the City of Ottawa in the East Region (he) did, by communicating statements in public places to wit Jewish, Muslim and Christian places of worship, incite hatred against identifiable groups to wit Christians, Jewish, Muslim and Blacks with a likelihood leading to a breach of the peace contrary to Section 319(1) of the Criminal Code of Canada.

2. Between the 12th day of November of the year 2016 and the 19th day of November in the year 2016 at the City of Ottawa in the East Region did commit mischief in relation to religious properties of the Christian, Jewish and Muslim faith, that were buildings, structures or parts thereof, primarily used for religious worship by damaging and obstructing, interrupting, or interfering with the lawful use, enjoyment or operation of that property for reasons of bias, prejudice or hate based on religion, race, colour or national origin, contrary to Section 430 (4.1) of the Criminal Code of Canada.

3. Between the 12th day of November in the year of 2016 and the 19th day of November in the year of 2016 in the City of Ottawa in the East Region knowing of being reckless as to whether one or more members of the Christian, Jewish of Muslim places of worship did without lawful authority engage in threatening conduct directed at one or more members of the Christian, Jewish, or Muslim places of worship thereby causing one of more members of the Christian, Jewish or Muslim places of worship to reasonably, in all of the circumstances, fear for their safety or the safety of their loved ones, contrary to Section 264.1 (2) of the Criminal Code of Canada.

4. On or about the 19th day of November in the year 2016 at the City of Ottawa in the East Region did possess weapons, namely a knife and a BB handgun for a purpose dangerous to the public peace contrary to Section 88(2) of the Criminal Code of Canada.

5. Between the 12th day of November in the year 2016 and the 19th day of November in the year 2016 at the City of Ottawa in the East Region did, being subject to a youth sentence imposed under paragraphs 42(2) (c) to (m) or (s) of the Youth Criminal Justice Act made on August 18th, 2016 by the Ontario Court of Justice – East Region – The Honourable Justice A. M. Alder, wilfully fail to comply with that youth sentence which required that the said young person keep the peace and be of good behaviour, contrary to Section 137 of the Youth Criminal Justice Act.

[2] Following the guilty plea the crown brought an application to have M.G. sentenced as an adult pursuant to section 64(1) of the Youth Criminal Justice Act (YCJA). What follows are my reasons for rejecting that application.

The Offences

[3] Between November 12 and 19, 2016, while on youth probation to keep the peace, M.G. on four separate nights went to 6 different places of worship and with red spray paint left vile hate messages on the exterior of the buildings. On November 12 he went to the Kehillat Beth Israel Synagogue and Torah Institute and spray painted a swastika and the phrase "Kill all Kikes" along with a second swastika and the phrase "White Power 1488" by the entrance doors. Evidence was before the court that "1488" is a white supremacist numeric symbol.

[4] On November 15 he went to the private residence of a Rabbi that is also used as a place of worship. Around midnight M.G. spray painted a swastika and the word "Kike" on the front door of the residence.

On November 17 in the middle of the night M.G. went to the premises of Congregation Machziliel Hadas where he left numerous painted messages on the front doors and on the front of the building. Using red spray paint again he painted swastikas, the phrases "Kill all Kikes. Save the White Race", "88Sieg Heil" and "666". "88" is white supremacist short hand for Heil Hitler and "666" is a numeric symbol signifying the devil or evil.

[5] Overnight between November 17 and 18 M.G. was particularly busy. He attended Parkdale United Church which is the home congregation of a prominent African Canadian minister. On the entry to the church he spray painted two swastikas and the phrase "1488 niggers". He then traveled several blocks to the Ottawa Muslim Association Mosque where painted across the front of the building two swastikas and the phrases "fuck Allah" and "go home 666".

[6] On the evening of November 18 M.G. put on a black ski mask and spray painted a swastika along with the words "white Power" and Kikes" on the front doors of the Ottawa Jewish Community Campus. Moments later he was pursued and arrested by the Ottawa Police Service.

[7] At the time of his arrest M.G. was carrying a back pack containing can of red spray paint, a hammer, a knife and a BB gun. A subsequent search of his cell phone revealed the following searches and downloaded images that show the planning and research carried out to commit these offenses:

• "Jewish synagogue"
• "Ottawa Jewish school"
• "offensive things to Jews"
• "Holocaust"
• "waffen totenkopf"
• "what Nazi unit did holocaust"
• "Ottawa anti-Semitic hate crime"
• Photograph of the Rabbi's home
• Map to the Ottawa Muslim Association
• Map to Parkdale United Church
• Map to the Jewish Synagogues in Ottawa
• Map and directions to the Star of David Hebrew School

[8] The degree to which M.G. was fascinated by the symbols and hate messages of the racist white power movement can perhaps be measured by his on line presence revealed on his cell phone. He held a You Tube account with the following message "14/88 100%WPWW [note: WPWW stands for White Power World Wide] I kill niggers for breakfast, Muslims for lunch, Chinks for dinner, and Jews for dessert. Heil Hitler." In one of his social profiles he uses the pseudonym Reinhard Heydrich, an SS officer and the main architect of the Holocaust.

The Impact of the Offences

[9] The impact of M.G.'s actions that week in November was profound. I received victim impact material from the leadership and members of each of the congregations. The victim impact statement of Reverend Anthony Bailey from Parkdale United Church included comments from many of his parishioners. They reported feeling vulnerable and protective of their church and their minister who was personally targeted with a hateful racial epithet. Reverend Bailey spoke of the traumatizing nature of the epithet used that brought to mind an earlier racial attack against himself and his brother. It caused him some emotional and psychological distress. A Holocaust survivor wrote that "the graffiti brings back all the horror and trauma I lived through". A young Jewish man wrote "Ottawa, which has been my home for over sixteen years, always offered a sense of safety and security relative to some of the other major cities in Canada. This safety and security has how been put in jeopardy as a result of hateful acts of intolerance and bigotry." A member of the Ottawa Muslim Association Mosque wrote about first seeing the hate message on the door of the Mosque, "I felt anger, discomfort and a momentary loss of belonging to my own home. I was thinking how this message was damaging to the community sense of belonging and insulting to my religion." This is but a representative sampling of the many people who wrote or testified about the powerful emotional impact of the hateful words and symbols.

[10] I also take notice that the week long assault on religious institutions was extensively reported in Ottawa and was the subject of several editorials. Many people outside of the targeted religious buildings were affected. The sense of security of the community as a whole was undermined.

The Offender

[11] M.G. was a few weeks shy of his 18th birthday when he committed these offences. At the time he had moved out of the home of his mother and step-father and was living alone at The Different Street youth residence. He was on probation having been convicted in August 2016 of assault, robbery while armed with a knife, fail to comply with recognizance, and mischief over. He was given a youth sentence of 18 months probation and a weapons prohibition. During interviews with his probation officer M.G. showed indifference towards his immediate family to the extent that he no longer considered them family. There is no evidence of abuse in the home and his family continues to be supportive of him notwithstanding his indifference. M.G. presents as very reserved young man who was without friends or support at the time of the offences. He has chosen to emphasize his apartness by tattooing his body with a swastika and racist slogans or numerology.

[12] In November 2016 M.G. was not in school and was not working. At that time he expressed no interest in pursuing an education or employment. He was not interested in any counselling services. His probation officer reports that M.G. on several occasions has reported that "he did not have any issues to work on so did not see the value in attending suggested supports." He has no history of drug or alcohol abuse and neither drugs nor alcohol were a factor in these offences.

[13] M.G. has been in custody since his arrest and has been held at the William E. Hay Centre, a secure custody youth facility. At the beginning of his incarceration he remained a loner. He had minimal interaction with staff or peers. He was quiet in group settings, rarely initiating conversations. While in custody he largely fulfilled the institution's expectations but there were several occasions when he needed to be disciplined. Several weeks after arrival he used a swastika as a computer screensaver. In April he was involved in a physical altercation with another youth at the facility and he was in a second fight in June. The first fight was said to arise out of provocative words spoken to M.G. and while the reason for the second fight is a mystery. In June he attacked a youth after the Muslim youth had completed his prayers. No words were spoken, no reference was made to religion but the circumstances of that fight are troubling. Neither fight gave rise to criminal charges. Both events were dealt with by way of internal discipline at the institution.

[14] Not surprisingly, M.G. has mental health challenges. He was assessed by Dr. Motayne in the summer of 2016 for the court proceeding that led to his youth record. Since his incarceration, he has met several times with Dr. Federoff who provided reports dated January 28, 2017 and March 13, 2017 and testified at this proceeding.

[15] According to his parents and his school records M.G. had an unremarkable and normal childhood up until about March of 2015 when he became more withdrawn and antisocial. This also seemed to coincide with his interest in white supremacist ideology. Since that time he has shown some traits of a number of personality disorders that are not of sufficient severity or duration to support a confident diagnosis. Dr. Federoff concludes that, given the significant changes to his conduct after March 2015 and taking into account the extreme beliefs espoused by M.G. since that time, he may be in the early stages of developing paranoid schizophrenia. The doctor said he could not make that diagnosis yet but testified if that is the root problem it would become fully developed over the next two years.

[16] The crown attorney put considerable emphasis on the results obtained by Dr. Federoff from a risk assessment instrument known as the Violence Risk Appraisal Guide Revised (VRAG-R). This is a rating scale to assess psychopathy. It is not an actuarial scale. It is "intended to assist in estimating the risk of re-offence by comparing the scores assigned to Mr. M.G. with the scores assigned to test groups of men with known offence histories" (Dr. Federoff report dated March 9, 2017 pg. 14). The VRAG-R score of M.G. was very high. Men with similar scores were found to have a violent re-offence at a rate of 58% within 5 years of opportunity. The following factors influenced that finding of high risk: limited personal supports, aversion to treatment or counselling, lack of employment, uncertain living situation on release, and relationship problems. It appears that the extent to which some or all of these factors can be addressed may reduce or increase the risk. Dr. Federoff also expressed concern about the effects of incarceration on M.G. in an adult facility: "incarcerating him with criminals is likely to increase his risk of adopting criminal attitudes."

[17] M.G. has strongly held views that the "white race" is threatened by black people, Jewish people, and Muslims. The views he has expressed to the doctors and probations officers are of deep concern as they appear to provide the motivation for his offences. He adopts racial stereotypes and mythologies that are irrational. When asked by Doctor Federoff in January why he committed these crimes "He said he identifies as a 'skinhead' who wants to 'preserve his race from extinction'. He said he 'needs to defend himself' because 'Blacks and Arabs hate white people'. He again said he does not need treatment and would not accept it. Asked about his risk to re-offend he said 'I will only fight if my life is in danger'." (Dr. Federoff report dated March13, 2017, page 19). It must be noted that there is no evidence that M.G. belonged to any organized movement or group promoting white supremacy. He appears to have learned about the symbols and rhetoric of white power racism on-line. He is an alienated loner in all things including his radical beliefs.

The Law

[18] Section 72(1) sets out the criteria that a youth justice court must consider and the test it must apply when determining if an adult sentence is required for a young person. The section reads as follows:

72.(1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that

(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

[19] Pursuant to s. 72(2) the crown bears the onus of satisfying the court of the matters set out in s. 72. The onus to satisfy does not reach the level of proof beyond a reasonable doubt but does require careful consideration. The Ontario Court of Appeal commented on this issue in R. v. A.O. 2007 ONCA 144, 84 O.R. (3d) 561 at para. 38: "However, in applying that onus, it is important that a youth justice court bear in mind the very serious consequences of an adult sentence for the young person, so as to only order an adult sentence when necessary to fulfill the objectives of the YCJA."

[20] Turning to the first part of the test set out at s.72(1)(a), the section does not enlarge on what the crown must demonstrate to rebut the presumption. The matter was considered by Justice Epstein in R. v. S.B. 2017 ONCA 22, 134 O.R. (3d) 1 at para. 98: "In order to rebut the presumption the Crown must satisfy the court that, at the time of the offence, the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication, and capacity for independent judgement of an adult such that an adult sentence and adult principles of sentencing should apply to him or her." I would add that the judgement referred to should be not only independent but should also itself be mature.

[21] The second part of the test addresses the issue of holding the young person accountable and has been the subject of considerable jurisprudence. It also mirrors section 38(1) of the YCJA which sets out the purpose of the a youth sentence 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.

Section 38(2) requires the youth justice court to determine the sentence in accordance with a list of principles including that the sentence must be similar to sentences imposed for like offences in the region, must be proportionate to the seriousness of the offence and the degree of responsibility of the young offender for that offence and

38(2)(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;

[22] In R. v. S.B. the Court of Appeal considered this second arm of the test and noted that accountability in the YCJA context is similar to the adult sentencing principle of retribution. At paragraph 103 the Court noted Lamer C.J.'s comments in M.(C.A.) at para. 80:

Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects 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. Furthermore, unlike vengeance, retribution incorporates a principle of restraint: retribution requires the imposition of a just and appropriate punishment, and nothing more.

[23] The following factors were noted in S.B. at para. 105 as helpful in determining if the Crown has overcome the presumption of reduced moral culpability and whether the youth sentence would be sufficient to hold the young person accountable for his acts:

(a) the seriousness and circumstances of the offence; (b) the age, maturity, character (including sophistication, intelligence and capacity for moral reasoning), background, and previous record of the young person; and (c) any other factors the court considers relevant

[24] The Crown has urged that I adopt an interpretation of the accountability portion of the test to mean that a young offender at high risk to re-offend must be kept in custody or under supervision for as long as they pose a risk. That interpretation would be entirely at odds with the principles of sentencing requiring the exercise of restraint in arriving at a just sentence. It would reduce the task of the judge to a simple consideration of how long the young person must be kept in custody or under community control to eliminate risk to the exclusion of the other factors set out in section 38 or the jurisprudence. It also presumes that that accountability cannot be achieved through means other than long term incarceration or supervision. With respect, I reject that interpretation. It certainly runs counter to A.O. in which the Ontario Court of Appeal said: "Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society. The purpose of accountability in the context would seem to exclude accountability to society in any larger sense or any notion of deterrence."

I note in particular the principle of youth sentencing set out in section 38(2)(a) and (b):

(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 in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young people found guilty of the same offence in similar circumstances.

Neither counsel referred me to any cases for adults or youth where sentence was imposed on people found guilty of similar offences in similar circumstances. I note, however, the case of R. v. Lelas, [1990] 58 C.C.C. (3d) 568 in which the Ontario Court of Appeal reviewed an adult sentence of an individual involved in spray painting synagogues. The desecration included painted swastikas and a message to Smash the ZOG – an acronym for Zionist Occupational Government. The accused at the time of his arrest was found to be in possession of Nazi flags and was a member of the Klu Klux Klan. The court in that case indicated that a severe penalty was called for and sentenced the accused to one year in jail.

Holding M.G. Accountable in Youth Justice System

[25] If M.G. remains in the youth justice system, any additional custodial sentence would be served at the William E. Hay Centre where he has lived since last November and any community supervision would be the responsibility of youth probation services. During his stay at the Centre his relationships with others have greatly improved. While he continues to generally be quiet and reserved he is also reported in his most recent Behavioral Summary to be "respectful, appropriate, engages well with staff, and peers in pro-social discussions." He has also completed the final two credits required for his high school diploma. After finishing his course work M.G. became very active in completing work with the Tamarak Trades Centre.

[26] While at William E. Hay Centre M.G. has developed a number of important supportive relationships. He has met regularly for Case Management Planning meetings that cover subjects such as his strengths, identified needs, educational programming, and goals. Since December he has met weekly with a Youth and Family counsellor, who is a psychotherapist. He reports that those meetings are going very well. M.G. has demonstrated a very strong work ethic and has been an enthusiastic participant in in the sports and recreation programs at the facility. The strength of this relationship is such that M.G. has indicated that he would like to continue the counselling sessions upon his release and the counsellor has agreed to do this. The Trades Centre Coordinator describes M.G. as keen on learning and participating in all aspects of the program. It is noted that he "has proven himself to be a hard worker while participating in paid work and is eager to assist staff." He is now in contact with a Community Support Team at youturn where a counsellor has been assigned to him. They are now in the assessment stage to determine the precise nature of counselling and support that M.G. will require when he is reintegrated into the community. They are in the process of developing a focussed plan to address M.G.'s specific needs, namely: anger management, family counselling, employment skills, prosocial activities, antisocial attitudes, life skills, mental health challenges, supportive counselling and community reintegration.

[27] A counsellor has also met with M.G. to develop Transitional Plans towards his eventual return to the community. This plan would include assistance in obtaining suitable housing and gaining employment.

[28] His youth probation officer testified again on the last day of evidence to provide the updates I have noted above. She reported that M.G. has started investigating how to cover up his racist tattoos. M.G. has also now agreed to meet with mental health professionals – a marked departure from his attitude following his arrest and during his meetings with Dr. Federoff. While in custody and continuing after his release M.G. has agreed to meet on a regular basis – as often as weekly – with his psychotherapist counsellor, his youth probation officer, the focussed counselling of his youturn counsellor, mental health professionals, and his transition counsellor. Plans are in place that he agrees with to provide him with the supports he needs to make positive changes in his life.

Analysis

[29] I now turn to applying the two part test required by section 72 of the YCJA – am I satisfied that the crown has rebutted the presumption of reduced moral culpability AND that a youth sentence would not of sufficient length to hold M.G. accountable for these offences.

[30] I find that the crown has rebutted the presumption of reduced moral culpability. In coming to that conclusion I have taken into account the following:

• M.G. was less than one month shy of his 18th birthday at the time of the offences;
• he has a prior youth record for assault, robbery and failing to comply;
• the offences were planned and deliberate and the targets were carefully chosen and researched on-line;
• he acted independently and was not under the direct influence of another in planning or carrying out the offences;
• M.G. knew that what he was doing was illegal and would cause consternation in the community.

I recognize that the rationale for committing these offences was deeply flawed and based on the crudest variety of racial stereotypes. While his motivation indicates immature judgement it is not enough to overcome the evidence rebutting the presumption.

[31] With regard to the second arm of the test, I am not satisfied that a youth sentence would not be of sufficient length to hold M.G. accountable for his actions. Accountability is not achieved by simply retaining control over an offender for the maximum legally permissible time. It requires, rather, a consideration and balancing of all of the principles of sentencing set out in section 3 and section 38 of the YCJA. The best protection the public have against M.G. committing further racist or violent acts is the type of intensive counselling and support that has been put in place for him. Dr. Federoff expressed the opinion that M.G. was at high risk to reoffend based in part on the evidence he had at the time of the assessment. M.G. at the time of his arrest and for some time thereafter had no interest in treatment, employment, stable living arrangements, continuing education or modifying his prejudices. With the support and guidance of many counsellors who have been meeting with him regularly since last December M.G. has made some significant changes that brighten his outlook. He obtained his high school diploma, he is has taken on paid work and enthusiastically undertaken some skills training. He now is eager to be employed. Very importantly, he is now prepared to actively participate in psychiatric treatment. He will be receiving ongoing counselling through youturn focussed on his particular issues. This counselling is not available until after he is sentenced. He is socializing appropriately with peers and staff at William E. Hay Centre. In his statement to the court M.G. expressed regret for the harm caused by his actions and a determination to "put aside any thoughts I once had and only think positive". Words are cheap unless they are accompanied by actions as I find they have been in recent months.

[32] For the offences before the court M.G. is liable for a maximum sentence of three years. He has already been in custody for almost 9 months. If he is sentenced in youth court he could be liable for up to a further 9 months in custody and 18 months community supervision. That would entail a considerable sanction for someone who had not previously been incarcerated. Moving to the adult criminal justice system would endanger the relationships and programs now in place for M.G. A recommendation could be made that the balance of any period of incarceration be served in a youth facility but all of the youth community services and the individuals providing those services would no longer be available if M.G. is sentenced as an adult. There would be a danger that he would again become isolated, alienated, and antisocial. This would not hold M.G. accountable or encourage his reintegration to the community.

[33] As noted above in Lelas the Court of Appeal held in similar circumstances that an adult should be sentenced to one year in jail. I find that the three year sentence range available under the YCJA is sufficient to hold M.G. accountable and that any greater sentence in the adult range would be disproportionate and contrary to the principles set out in Section 38 of the YCJA.

[34] In the result, I am not satisfied that a youth sentence would not hold M.G. sufficiently accountable and accordingly the application to transfer him to adult court for sentencing is dismissed.

Released: August 14, 2017

Signed: Justice P. Griffiths