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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Date: November 7, 2018

Information No.: 2811-998-18-Y18258-00

Ontario Court of Justice

Her Majesty the Queen

v.

M.D.L.

Proceedings at Reasons for Sentence

Before the Honourable Justice G.R. Wakefield

on November 7, 2018 at Oshawa, Ontario

Appearances

D. Morgan — Counsel for the Crown

T. Balka — Counsel for M.D.L.

Procedural History

The defence counsel indicated that the Crown would re-elect to proceed summarily on count one (assault causing bodily harm), with the accused expected to plead guilty. The defence waived any time limitations with respect to the summary proceeding. The court confirmed that the accused understood the consequences of his guilty plea, including that he was giving up his right to a trial and that the court could impose any sentence it saw fit. The court also confirmed the accused's First Nation heritage and that he is a Canadian citizen.

The Crown confirmed it was content to re-elect summarily on count two, which involved the victim D.B.

Facts

The Crown presented the following facts:

On Friday, April 27, 2018, T.T., D.B., A.G., and T.S. were playing basketball at Westcreek Public School in Pickering in a four-on-four game with another group.

During the game, T.T. was trying to clear the ball and pushed one of the males on the other team. At this time, the older-looking male in the group went over and said "don't touch my cousin." The older-looking male pushed T.T. from behind, causing him to fall and hit his head on the ground. The older-looking male then got on top of T.T. and punched him several times. T.T. advised that he blacked out for a period of time.

D.B. then ran over to help, and the older-looking male threw one punch at him, hitting him in the teeth. Two males in the other group then tried to grab the older-looking male to get him to stop. The other group then left in a white Honda with an Ontario licence plate, and a photograph was taken of the licence plate.

T.T., D.B., and their friends did not know anyone in the group by name, but were able to provide police with physical descriptions. They advised that two of the people in the other group were brothers who attended a local high school.

Police contacted the school resource officer, who was able to identify the brothers based on the description provided. Detective Constable Bacon accessed the Facebook accounts of the brothers and found that both had a friend named M.D. (the accused) who matched the description provided by the witnesses.

Police ran the licence plate number of the white Honda and found that it was registered to E.D. (the accused's mother).

M.D.L. was contacted by police and turned himself in on May 9, 2018. His mother E.D. was present with him at the time. Detective Constable Bacon confirmed M.D.L.'s identity through physical features described by other witnesses, including a tattoo on M.D.L.'s left forearm.

Injuries:

• D.B.'s jaw was broken in two places, which required surgery to repair.
• T.T. sustained facial trauma, demonstrated signs of a concussion, and was instructed to adhere to a concussion protocol.

The defence agreed with the facts as presented by the Crown, noting that while the accused had no intention of hurting the victims, he did strike them and is responsible for the injuries.

Guilty Plea

The accused pleaded guilty to assault causing bodily harm contrary to Section 267(b) of the Criminal Code of Canada.

Exhibits

The following exhibits were entered:

• Exhibit 1: Photographs of D.B.
• Exhibit 2: Victim Impact Statement of D.B.
• Exhibit 3: Photographs of T.T.
• Exhibit 4: Victim Impact Statement of T.T.

Crown's Position

The Crown sought the following sentence:

• Two years' probation with the following terms:

  • Report and reside at a location approved by probation
  • Do not communicate and remain 100 metres away from T.T., D.B., A.G., and T.S.
  • Attend counselling for anger management and otherwise as directed by the youth worker
  • Complete 120 hours of community service
  • Do not possess any weapons as defined by the Criminal Code

• Ancillary orders:

  • DNA order (primary designated offence)
  • Weapons prohibition for two years under section 51(2) of the Youth Criminal Justice Act

Crown's Reasoning:

The Crown acknowledged mitigating factors, including:

• Early guilty plea before trial was set
• Saves time off school and stress of testifying
• No criminal record or prior police activity
• Appears to be a social member of society

The Crown identified aggravating factors:

• Gross overreaction to the circumstances
• Very significant injuries to both victims (broken jaw requiring surgery; concussion symptoms)
• Both victims' emotional and physical effects continue to this day
• Principles of general and specific deterrence are engaged
• Violence in the schoolyard must not be tolerated and must be addressed firmly

The Crown submitted that rehabilitation would be addressed through probation, counselling, and regular reporting.

Defence Position

The defence agreed with two years' probation and the terms proposed by the Crown, with the following points of departure:

1. Conditional Discharge: The defence requested that the probation be imposed in the form of a conditional discharge rather than a youth record, arguing it was in the accused's interest and not contrary to the public interest.

2. Community Service: The defence noted that 110 hours had been discussed at pre-trial but did not object to 120 hours.

3. Weapons Prohibition: The defence requested that the no-weapons order be made part of the probation terms rather than a separate order under section 51(2), given that no weapon was involved in the offence.

Defence's Reasoning:

The defence emphasized the following mitigating factors:

• Age and Physical Development: The accused was only 16 at the time of the offence and is described as a 17-year-old in a 25-year-old's body. He did not know his own strength and was shocked at the injuries caused by one punch.

• Protective Motivation: The accused was protecting his younger cousin, who has communication deficits. The accused shouted "leave my cousin alone" and overreacted to the situation.

• Early Guilty Plea: The guilty plea resolved the case without trial, saving four days of trial time and sparing the victims from testifying. This demonstrates pro-social attitude and responsibility.

• Academic Achievement: The accused is on the Honour Roll at his high school and is in grade 12 courses. He has a certificate of completion for the student athlete experience program at the Health Institute.

• Athletic Achievement: The accused was individually selected by the NBA based on his outstanding basketball skills and leadership ability to attend America's Team Camp in the previous summer, where he distinguished himself.

• Family Support: The accused lives with his single mother, who has been responsible and supportive. Despite not seeing his father very much, the accused has been doing very well.

• Character: The accused's mother would attest that he is not a violent person. He overreacted to a schoolyard incident and is very sorry.

• Future Impact: A conditional discharge would preserve scholarship opportunities for U.S. colleges, which could be priceless for a young person being raised by a single parent with substantially reduced resources. A youth record could prevent him from obtaining a scholarship.

The defence argued that a conditional discharge was appropriate because it was in the accused's interest and not contrary to the public interest, given all the circumstances.

Victim Impact

The Crown presented victim impact statements from both T.T. and D.B. The mothers of both victims attended court.

The Crown advised that as a result of the accused's actions, both victims' athletic careers are essentially over. Both victims lost opportunities for varsity tryouts.

The court noted that victim support had provided information to both families regarding the criminal compensation board and other options available outside the criminal process.

Accused's Statement

The accused stated:

I just wanted to apologize for my actions to the families of the victims. I wanted to apologize to my own because it's stressful. Like I said I didn't go there to hurt anyone just to play basketball and yeah I'm sorry.

Reasons for Sentence

WAKEFIELD, J. (Orally):

Systemic Issues and Balancing Considerations

One of the weaknesses in the system is that victim impact statements are currently obtained only after the plea is taken, which deprives victims and their families of the opportunity to have input at the most important stage—when resolution discussions are being undertaken by Crown and defence counsel and a judge. There are good reasons for this practice, as Crown counsel do not want victim impact statements to become subject to cross-examination if the matter is not resolved and goes to trial, because victims should not have to be cross-examined on aspects they would not have been cross-examined on beforehand. However, there is a quid pro quo balancing of issues here.

There also needs to be certainty in the system. The court expressed certain opinions in the pre-trial process, and one reason for taking as much time as the court did was to ensure proper balancing of those expressions, which resulted in the certainty of a guilty plea and the taking of responsibility, while now finding out the extent of the impact of the crime on the two victims.

Sentencing Principles Under the Youth Criminal Justice Act

The court must apply the basic principles of the Youth Criminal Justice Act in approaching sentencing. The Act is very different from the old Juvenile Delinquents Act, when 16-year-old offenders were treated as adults and processed in adult court. That was changed with the Young Offenders Act, which was more of a social redeeming piece of legislation as opposed to the harsher reality that pre-dated it. The current legislation, the Youth Criminal Justice Act, contains certain principles of sentencing that must be applied.

Key Principles

1. Accountability and Proportionality

Young persons must be accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the youth. Here, M.D.L. is clearly the person responsible for the unreasonable use of force in circumstances of trying to protect a cousin. He is the sole cause of the injuries.

2. Rehabilitation and Prevention

The court must promote the rehabilitation of the defendant and support prevention of crime by referring M.D.L. to appropriate programs in the community and agencies, while balancing the consequences of the sentence on him. The court must craft a sentence that is fair and affects proportionate accountability consistent with the dependency of young people and their reduced maturity.

3. Meaningful Consequences

Meaningful consequences are the utmost target, but meaningful consequences can mean very different things to different young people. The least restrictive sentence is an obligation imposed by the statute—the least restrictive sentence capable of achieving the purposes of the principles set out in the Act.

4. Rehabilitation Focus

The court must look for a sentence most likely to rehabilitate the young person, yet promote a sense of responsibility and acknowledgement of the harm done to the victims, whether the harm was intentional or reasonably foreseeable. Here, it is accepted that the harm was not intentional and indeed not necessarily reasonably foreseeable.

5. Jobadon Principles Not Applicable

Unlike the adult regime, the Jobadon principles do not apply in youth proceedings. A guilty plea and the taking of responsibility by a young person is demonstrative of taking responsibility, especially where a trial might have had challenges for the Crown in terms of the foreseeability or intention aspect of the bodily harm that flowed from the blows struck by the defendant.

Mitigating Factors

• M.D.L. was 16 at the time of the offence
• He has no prior record
• He took responsibility by entering a guilty plea
• He saved the victims from testifying
• The guilty plea saved four or more days of trial, which is extremely important in a post-Jordan time limit regime requiring matters for adults to be completed within 18 months and youth matters within 12 months
• By freeing up these dates, other trials were able to move forward in a more timely fashion

Aggravating Factors

• The nature of the charges opens up the possibility of custody
• The severity of the impact on the victims
• The restricted future in sports opportunities for both young people

Crown's Position vs. Defence Position

The Crown is not seeking custody but is content with a probation order. However, the Crown is opposed to a conditional discharge given the severity of the impact on the victims, especially given the now-restricted future in sports opportunities for both young people.

The defence is seeking a conditional discharge, not only due to the lack of prior record and positive history of pro-social choices in his life, but to preserve scholarship opportunities for perspective U.S. colleges. That opportunity would be priceless for a young person currently being raised by a single parent who would presumably have substantially reduced resources to otherwise give those opportunities to her son.

Court's Analysis

In all the circumstances, it is certainly very much in the best interest of M.D.L. to have a conditional discharge. The second part of the test is whether it is contrary to the public interest. Is it going to bring the administration of justice into disrepute with a conditional discharge in these circumstances?

The court considered that no sentence that can ever be administered is ever going to put either of the young victims back in the position they were before the day in question. No sentence can bring a sense of relying on the justice system to acknowledge all the factors. How can it if it does not bring people back to the position they were before they became victims of criminal activity?

What the court must focus on is whether it can make a meaningful consequent sentence that promotes the rehabilitation of the defendant before the court in all the circumstances. What is being proposed here balances all those aspects within the structure required by the Youth Criminal Justice Act.

In all the circumstances, the court finds that it is not contrary to the public interest to impose a conditional discharge because of other aspects of the total structure of the sentencing.

Sentence

Conditional Discharge

There will be a conditional discharge. There is no probation on a conditional discharge. There are terms of discharge which, if breached, bring a youth back into the court system with a risk of far more onerous and restrictive consequences.

The conditional discharge will be for a two-year duration.

Terms of Discharge

1. Keep the Peace and Be of Good Behaviour

You will keep the peace and be of good behaviour.

2. Court Attendance

You will appear before the Youth Justice Court when required to do so.

3. Reporting to Youth Worker

You will report in person to a youth worker. Within two working days and after that at all times and places directed by the youth worker or anyone designated by a youth worker to assist in your supervision.

The reporting condition will continue for the entirety of the terms of discharge. It is always open for a youth to bring an application to review that aspect, which will give the Crown an opportunity to get further input from the victims.

4. No Contact with Victims

You will not associate or communicate in any way or be in the company of T.T. or D.B., subject to an exception to be in the presence of or through legal counsel and/or a peace officer and any required court attendances.

You will not be within 100 metres of any place where you know any of the persons named above to live, work, go to school, frequent, or any place you know the persons to be, except for required court attendances.

5. Counselling and Rehabilitative Programs

You will attend and actively participate in all assessment, counselling, and rehabilitative programs as directed by the youth worker and complete them to the satisfaction of the youth worker, including but not limited to anger management and any other counselling that will assist in rehabilitation and better ways of dealing with confrontational situations.

You will sign any release of information forms as will enable your youth worker to monitor your attendance and completion of any assessments, counselling, and rehabilitative programs as directed.

6. Community Service

You will perform 120 hours of community service work on a rate and schedule to be directed by the youth worker, but must be completed within 12 months of the start date of this order.

The court noted that 120 hours is an important number because historically 120 hours is a clear indication to any future judge should M.D.L. come back into the criminal justice system that it was in lieu of a custodial sentence. A subsequent judge would see that and see the shorthand message that this could have gone in a very different way in terms of the sentencing process.

7. Weapons Prohibition

You will not possess any weapons as defined by the Criminal Code, including, but not restricted to a BB gun, a pellet gun, firearm, imitation firearm, crossbow, prohibited restricted weapon, ammunition or explosive substance or anything designed to be used or intended to be used to cause death or injury or to threaten or intimidate any person.

The court's preference was to have this as one of the terms of the conditional discharge rather than a separate order under section 51(3) because it is actually more expansive than the order under that section.

8. Apology Letter

There will be an obligation to write an apology letter to the satisfaction of the youth worker to be forwarded to the victims should they want it through the youth worker's office. There should not be any direct communication by the defendant with either of the two victims.

DNA Order

There will be a DNA order. The court noted that this means more than just a drop of blood from a finger like that taken at a doctor's office. It is an intrusion into personal privacy because it tells the Government everything that makes a person a human being. The accused has lost that interest in privacy by his conduct that day and the choices he has made.

The court noted that there is a time limit for a DNA order to be kept by the Government if the accused stays out of trouble. The accused has given every indication that this is not going to be something he is going to repeat, that he has learned and has every intention of not putting himself in this situation again. The court accepts that.

The DNA order must be completed by 4:00 p.m. that day.

Withdrawal of Remaining Charge

The remaining charge was withdrawn at the request of the Crown.

Released: November 7, 2018

Justice G.R. Wakefield