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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: January 12, 2017

Court File No.: Ottawa 15-RY1192

Between:

Her Majesty the Queen

— And —

M.A., a young person

Before: Justice P. K. Doody

Sentencing Submissions Heard on: January 11, 2017

Reasons for Judgment Released on: January 12, 2017

Counsel:

• M. Boyce, counsel for the Crown
• T. Botten, counsel for the accused

Reasons for Judgment

DOODY J.:

Part 1: The Offence

[1] The defendant was convicted on December 14, 2016 of robbery on June 13, 2015. These are my reasons for and decision in respect of the appropriate sentence.

[2] The defendant was among a group of individuals who engaged in a "home invasion". A group of individuals knocked on the door and barged in. Only one of the residents of the home, a 17 year old young woman (the complainant) was at home at the time. She was with another group of individuals, including the defendant, who had either been invited or invited themselves to spend the evening with the complainant. The group, including the defendant and the others who were already in the house, then ransacked the house and stole a number of items, including jewelry and computers.

[3] At the conclusion of the trial, I provided written reasons for my decision to convict. I found that the Crown had proven the following facts beyond a reasonable doubt:

(a) the defendant was in the complainant's home when the group of individuals invaded it;

(b) the complainant was, immediately after the second group of persons invaded the house, surrounded in the family room, in the defendant's plain view, by four or five people and held while the others ran through the house, going to the basement and upstairs to the bedrooms;

(c) the defendant saw the complainant being held;

(d) she then broke free and went upstairs;

(e) the defendant left the family room while or after the complainant was being held and went upstairs and into a bedroom;

(f) while in that bedroom with another person, he opened the closet and looked through the shelves for items that could be stolen; and

(g) in doing so, the defendant was joining in the ongoing robbery, and aiding the others in searching for and removing items worth stealing.

[4] I also found that when the complainant telephoned 911 on the night of the robbery, she was very upset and distraught.

[5] It was admitted that property in the amount of $5,348.23 was taken, of which property of the value of $1,823.00 was returned.

Part 2: The Offender

[6] The defendant is 17 years old. At the time of the offence, he was 15. He had not been convicted of any other offences before committing this offence. Although he was on bail at the time of this offence, he must be treated as a first-time offender for the purposes of sentencing.

[7] A pre-sentence report prepared on October 26, 2016 for the purpose of sentencing on other offences was provided to me. The defendant's mother was quite young when she gave birth to the defendant, and he has been raised by his grandmother (who he refers to as his mother). He was raised along with four of his maternal aunts and uncles, who interacted with him as if they were siblings.

[8] The defendant's biological mother has mental health issues and has not played a prominent role in his upbringing. He has not had contact with his father for many years.

[9] The defendant's childhood and early teenage years were not troublesome from a behavioural standpoint. His grandmother reported that he was generally compliant with the rules and expectations of the home and did not display behavioural issues. The defendant reported that he had never experienced verbal, physical, emotional or sexual abuse inside or outside the home.

[10] The defendant reports that he has never experimented with alcohol or drugs, and substance abuse has not been involved with any of his offences. His grandmother and aunt confirmed that they had no issues or concerns with respect to his use of alcohol or drugs.

[11] In 2014, the defendant's grandmother moved to London, Ontario. The defendant did not want to leave Ottawa. His aunt offered to take him in to her home in Ottawa and he lived with her until June 2015. She reported to the pre-sentence report author that initially the defendant was compliant with her rules, respectful and had no identifiable behavioural issues. He did, however, experience some difficulty meeting people and adjusting to his new neighbourhood. By March 2015, he was associating with a significantly older peer group and began "pushing boundaries" by, among other things, being late for curfew and not listening. After charges were laid, he moved to London to live with his grandmother again.

[12] His aunt describes the defendant as very caring and helpful, noting that he relates well to children. His grandmother describes him as smart, respectful and polite.

[13] The defendant had finished grade 10 when he moved to London. He did not, however, complete the next year at the high school he enrolled at in London, obtaining only one credit. He withdrew from that school in 2016 and has not returned.

[14] The defendant was employed part time from October 2015 to July 2016 at a McDonald's in London. I am advised that he quit that job because while he was working, he was on bail with a midnight curfew subject to exceptions approved by his surety, his grandmother. The police told him they would be checking whether his absence from home had been approved by his grandmother if they saw him working after midnight and he was not prepared to endure that humiliation and disruption at work. Since then, he has held a series of general labourer jobs.

[15] The defendant acknowledged to the report writer that moving to London in September 2015 was a difficult transition, because the majority of his peers live in Ottawa. He admitted that when he was committing offences, he was associating with a negative peer group who were significantly older than him, many of whom possessed criminal records.

[16] The defendant was made subject to an 18 month probation order on December 8, 2016. Conditions of that order include that he perform 30 hours of community service within 12 months and that he engage in counselling as seen appropriate by his youth worker.

Part 3: Positions of Counsel

[17] Crown counsel submits that an appropriate disposition would be a deferred custody order of 3 months' duration, with a curfew for the first 60 days, followed by a month with no curfew. He submits that this should be followed by a 12 month probation with conditions prohibiting contact with the co-accuseds on this charge and the complainant, attendance at counselling as recommended by the youth worker, and that he work or attend school. He also seeks a 2 year weapons prohibition and a DNA order.

[18] Defence counsel differs only on the issue of whether a period of deferred custody is necessary. He submits that a period of probation, on essentially the terms suggested by Crown counsel, which is consecutive to the probation imposed on December 6 for the other offences, would ensure supervision and direction towards rehabilitation well into the defendant's adult years.

Part 4: The Law

(a) Availability of Deferred Custody

[19] An initial issue is whether I am entitled to impose a custodial sentence. Subsection 42(5) of the Youth Criminal Justice Act (YCJA) that the court may make a deferred custody and supervision order if:

(a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm; and

(b) it is consistent with the purpose and principles of sentencing set out in section 38 and the restrictions on custody set out in section 39.

[20] "Serious bodily harm" is not defined in the YCJA or the Criminal Code (the definitions of which are adopted for the Youth Criminal Justice Act by s. 3(2) to the extent that they are not in conflict). "Bodily harm" is not defined in the YCJA, but is defined in the Criminal Code as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature".

[21] The Supreme Court of Canada held in R. v. C.D.; R. v. C.D.K., 2005 SCC 78 at para. 20, that the phrase "serious bodily harm", at least for the purpose of the previous definition of "serious violent offence" in the YCJA (which used that phrase), meant

any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant.

I see no reason not to adopt the same definition where the phrase is used in s. 42(5), which was added to the YCJA in 2012, after the Supreme Court's decision.

[22] There was no evidence that the complainant suffered any physical injuries. I found that the complainant was upset and distraught that night. There is no evidence that, even if this interfered with her psychological integrity, health or well-being (and therefore constituted bodily harm) it did so in a "substantial" way. Consequently, there is no evidence of serious bodily harm and s. 42(5) is not an impediment to the imposition of a custodial sentence of deferred custody on the defendant.

[23] I must, however, consider the provisions of s. 39(1) of the Act. It provides:

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 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 .

[24] None of paragraphs (b), (c), or (d) apply. Consequently, I can only sentence the defendant to a custodial sentence, including deferred custody, if he has committed a "violent offence".

[25] Before 2012, the term "violent offence" was not defined in the Act. In that year, the following definition was enacted by the Safe Streets and Communities Act, S.C. 2012, c.1:

"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.

[26] Neither paragraphs (a) nor (b) apply to this case. The offence of robbery does not include as an element the causing of bodily harm. Bodily harm is not required for "violence", "personal violence", or "assault", the elements of robbery committed in various ways as defined by s. 343 of the Criminal Code.

[27] Consequently, a custodial sentence can only be imposed if, while committing this offence, the defendant endangered the life or safety of the complainant by creating a substantial likelihood of causing bodily harm, thereby meeting the requirements of paragraph (c) of the definition.

[28] Crown counsel referred me to the decision of the Ontario Court of Appeal in R. v. S.(J.) (2006), 210 C.C.C. (3d) 296, in which the court held that a home invasion was a "violent offence" within the meaning of s. 39(1)(a) of the Act, with the consequence that a court could impose a custodial term for an offence which amounted to a home invasion.

[29] At the time this decision was released, however, there was no definition of "violent offence" in the Act. Nor was there a definition of this term when the Supreme Court of Canada, at paragraph 17 of C.D., defined the term to mean "an offence in the commission of which a young person causes, attempts to cause, or threatens to cause bodily harm." This definition is different from the definition Parliament chose to enact some six years later. It is the statutory definition which must govern.

[30] The Crown has not proven that the complainant suffered bodily harm.

[31] There is no evidence of physical harm to the complainant. The evidence was that four or five people gathered around her and held her by wrapping their arms around her so she could not move. She was able to break free after approximately a minute.

[32] By extrapolating from the decision of the Supreme Court of Canada in C.D., bodily harm in a psychological sense requires interference with a person's psychological integrity, health or well-being in a way which is more than merely transient or trifling in nature. I cannot conclude, on the evidence I have heard, that the complainant's emotional upset on the night of the offence was so significant as to meet this definition. In particular, I cannot conclude that it was more than transient in nature.

[33] Nor has it been proven that the defendant created a substantial likelihood of bodily harm being suffered by the complainant. This is not a case like S.(J.), where the offenders broke into the victims' home, brandishing a machete and a shotgun; forced its occupants to gather in the living room where a shotgun was pointed at at least one of them; and pulled the trigger on the shotgun while it was pointed at one of the victims as the intruders left the home. That created a substantial likelihood of bodily harm. In this case, the intruders held their arms around the complainant to confine her for approximately one minute. That did not create a substantial likelihood of bodily harm.

[34] The statutory condition not having been established, I am not entitled to impose a custodial term.

(b) Sentencing Principles Under the Act

[35] The principles of youth sentencing are set out in the YCJA as follows:

(a) s. 38(1) states that the purpose of youth sentencing is to hold a young person accountable for the offence by imposing just sanctions that have meaningful consequences for the young person and promote the young person's rehabilitation and reintegration into society, thereby contributing to the long-term protection of society;

(b) s. 38(2) sets out the following sentencing principles:

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

(ii) the sentence must be similar to the sentences imposed in the region on similar youth found guilty of the same offenses committed in similar circumstances;

(iii) the sentence must be proportionate to the seriousness of the offence and the young person's degree of responsibility for that offence;

(iv) all available alternatives to custody that are reasonable in the circumstances should be considered;

(v) the sentence must be the least restrictive sentence that is capable of achieving the goals stated in s. 38(1). It must also be the sentence most likely to rehabilitate and reintegrate the young person into society, and promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and the community; and

(vi) subject to the requirement of proportionality, the sentence may have the objective of denouncing unlawful conduct and deterring the young person from committing offences;

(c) s. 38(3) mandates that a Court must consider the following in determining an appropriate sentence:

(i) the degree of participation of the young person in the commission of the offence;

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

(iii) any reparations made by the young person to the victims or the community;

(iv) any time already spent by the young person in detention as a result of the offence;

(v) previous findings of guilt of the young person; and

(vi) any other aggravating and mitigating circumstances related to the young person and the offence that are relevant to the purpose and principles of youth sentencing.

Part 5: Analysis

[36] The defendant was not a principal in the commission of the offence of robbery. I concluded that he was a party to the ongoing offence because he aided it by taking part in the search of the house looking for things to steal, knowing that the complainant had been held against her will. It was not proven that he stole anything or played an active role in the complainant's confinement.

[37] While there was undoubtedly psychological or emotional harm done to the complainant, I cannot conclude, as I have indicated, that it was more than transient.

[38] The defendant has made no restitution.

[39] The defendant has spent no time in custody prior to this sentence being imposed.

[40] The defendant has no previous findings of guilt on his record in the sense that that term is used in the YCJA.

[41] The fact that the offence was a home invasion is an aggravating factor. As the Court of Appeal has held in S.(J.), these

offences are very serious because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes - highly cherished values in our society - and because they are frequently perpetrated against vulnerable individuals.

[42] The defendant was on bail at the time of the offence, another aggravating factor.

[43] It is a mitigating factor that the offence appears to have occurred as a result of the defendant becoming involved with older persons who influenced him. This lessens his moral culpability.

[44] Furthermore, there are some positive aspects of the defendant's personal situation which suggest that there is a reasonable prospect that he can be rehabilitated and reintegrated into society, and develop a sense of responsibility.

[45] His period of offending behaviour was limited in time, lasting approximately a year.

[46] He is now living in London with his mother, who has expressed her support for him. While there is a possibility of him returning to Ottawa to complete his schooling, his aunt is here and she is willing to provide him support. She has expressed regret for missing the warning signs that she now sees with hindsight, and will no doubt be alert to any such signs in the future. She told the pre-sentence report writer that she has lost trust in her nephew, but has shown her support for him by attending court throughout his trial and sentencing proceedings.

[47] The defendant has indicated that he wants to return to school and complete his high school education. He has been working fairly steadily since he moved to London. He expressed empathy for the victim and has said he is willing to make a restitution payment.

[48] In my view, all applicable sentencing principles can be satisfied by

(a) placing him on probation for a period of twelve months, consecutive to the period of probation he is now serving, with the following conditions:

(i) that he not associate or communicate with his co-accused or the complainant;

(ii) that he take part in counselling for such matters as considered appropriate by his youth worker, and sign such releases and provide such information as is required to evaluate his attendance at, participation in, and satisfactory completion of such counselling;

(iii) that he pay restitution to the complainant in the amount of $391.58, his proportionate share of the total loss (and the amount ordered to be paid by his co-accused who pleaded guilty to lesser included offences);

(iv) that he either work or attend school;

(v) that he perform a further 50 hours of community service (in addition to any volunteer hours required to be completed as part of his high school education), to be completed 2 months prior to the expiry of this period of probation; and

(vi) that he reside at a place approved of by his youth worker.

[49] The 50 hours of community service, to be performed in addition to the 30 hours of community service required by the existing probation order, will, in addition to imposing meaningful consequences, promote a sense of responsibility in the defendant by ensuring that he recognizes that there are consequences for this behaviour.

[50] In addition, there will be an order under s. 51 of the YCJA prohibiting the defendant from possessing a weapon for a period of two years. An order of at least two years is mandatory, robbery being an offence referred to in s. 109(1)(a) of the Criminal Code. There will also be an order authorizing the taking of samples of bodily substances for the purpose of DNA analysis, robbery being a primary designated offence under s. 487.051 and s. 487.04 of the Criminal Code.

Released: January 12, 2017

Signed: Justice P. K. Doody