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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: February 1, 2018

Court File No.: Toronto 16-Y50595

Between:

Her Majesty the Queen

— and —

H.A.H. (a young person)

Before: Justice David A. Fairgrieve

Heard on: August 14 & 24, October 24, 2017 and January 5 and February 1, 2018

Reasons for Sentence released on: February 1, 2018

Counsel:

• Katherine Rogozinski and Andrea MacGillivray — counsel for the Crown
• Elliott Willschick — counsel for the accused H.A.H., a young person

Reasons for Sentence

FAIRGRIEVE J.:

Findings of Guilt

[1] After a trial in the youth justice court, H.A.H. was found guilty of the three charges on which the Crown had proceeded against him:

• Count 2: possession of a prohibited firearm (Criminal Code, s. 92(1));
• Count 3: occupying a motor vehicle in which he knew there was a prohibited firearm (s. 94(1));
• Count 4: possession of a loaded prohibited firearm (s. 95(1)).

[2] The three indictable offences were committed by H.A.H. on September 23, 2016, when he was still 17. All three charges related to the same loaded Mossberg 12-gauge sawed-off shotgun found in his mother's car, which H.A.H. had taken without her consent a few hours earlier.

[3] Although the evidence at trial did not establish exactly when or by whom the shotgun was placed in the car, it did prove beyond a reasonable doubt the accused young person's knowledge and control required to make out the offences. The surveillance security cameras at the scene showed H.A.H. driving the car, then allowing another person to drive it away briefly, followed by H.A.H. jumping back into the driver's seat and reparking it, just as police officers arrived. Immediately after H.A.H. and the other three occupants of the vehicle fled, the officers were able to observe the prohibited firearm protruding from under H.A.H.'s backpack, left on the floor of the car in front of the front passenger seat, just to the right of the centre console.

[4] Both counsel agreed that, given the rule in R. v. Kienapple, [1975] 1 S.C.R. 729, prohibiting multiple "convictions" arising from the same unlawful act, a conditional stay of proceedings should be entered on Count 2 (possession of a prohibited firearm).

[5] H.A.H. is to be sentenced, then, on the other two charges of which he was found guilty, Count 3 (occupying a motor vehicle in which he knew there was a prohibited firearm) and Count 4 (possession of a loaded prohibited firearm).

Sentencing under the Youth Criminal Justice Act

[6] It is important, particularly for a court that normally deals only with Criminal Code provisions, to recognize that the YCJA mandates a completely different statutory sentencing regime. In R. v. B.W.P.; R. v. B.V.N. (2006), 2006 SCC 27, 209 C.C.C. (3d) 97 at p. 102 (S.C.C.), Charron J. stated, for a unanimous 7-judge court, the following:

[4] The YCJA introduced a new sentencing regime. …[I]t sets out a detailed and complete code for sentencing young persons under which terms it is not open to the youth sentencing judge to impose a punishment for the purpose of warning, not the young person, but others against engaging in criminal conduct. Hence, general deterrence is not a principle of youth sentencing under the present regime.

[7] While the YCJA was later amended to include among the applicable sentencing principles a statement that a youth sentence could properly consider the objectives of denouncing the unlawful conduct and deterring the young person from committing offences, it has not been suggested that the Supreme Court's prohibition against taking general deterrence into account is not still binding. Section 50(1) has not been amended, and still excludes from application to the YCJA s. 718(b) of the Criminal Code, which recognizes that deterring "other persons," apart from the offender, is a legitimate objective when sentencing an adult.

[8] Moreover, Charron J. observed, at para. 19 of her reasons in B.W.P., the following:

… the YCJA brought about substantial changes in the general youth sentencing process. The statute provides more specific guidance to judges. Detailed sentencing principles are expressly set out. Sentencing options are more regulated. Factors to be taken into account are spelled out. Mandatory restrictions are placed on the use of custodial sentences. The new sentencing provisions have been characterized as "the most systematic attempt in Canadian history to structure judicial discretion regarding the sentencing of juveniles": J.V. Roberts and N. Bala, "Understanding Sentencing under the Youth Criminal Justice Act" (2003), 41 Alta. L. Rev. 395, at p. 396.

[9] It is accordingly necessary to set out in considerable detail the current statutory provisions which govern this case.

[10] Repeating much of the Declaration of Principle set out in s. 3, which is applicable to the interpretation and administration of the entire statute, "Part 4/Sentencing" of the YCJA commences with the following general statement in s. 38(1):

The purpose of sentencing under s. 42 (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.

[11] The principles enumerated in s. 38(2) that are clearly applicable to this case include the following:

(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…;

(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 … into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to 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.

[12] In addition to those principles that always apply, s. 38(3) lists a number of factors that must be considered in determining a youth sentence:

(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.

[13] While s. 42(2) sets out a wide range of potential sanctions that are available, extending from a mere reprimand to lengthy periods of custody, as a practical matter, the positions taken by the parties in this case clearly limit the relevant options.

[14] Given the seriousness of the firearm offences, notwithstanding H.A.H.'s personal circumstances as disclosed by the pre-sentence report and the s. 34 psychological report, the Crown is seeking 6 to 9 months in custody, to be followed by probation for up to 18 months (recognizing that s. 42(14) limits the combined duration of the sanctions to two years), as well as the usual ancillary orders. The Crown takes the position that the custodial sentence should be immediate, rather than deferred, but that open, as opposed to secure, custody would be acceptable in the circumstances.

[15] The defence submits that a probation order would be the appropriate sanction. The firearms prohibition order and an order forfeiting the shotgun and ammunition that were sought by the Crown were not opposed. Although Mr. Willschick argued initially that a DNA order would involve an unwarranted intrusion on H.A.H.'s privacy interests, he expressly stated that he was not seeking a voir dire to allow him to call evidence as to why the order would not be in the best interests of the administration of justice. The issue was not pursued further.

[16] Among the relevant provisions of s. 42(2), then, the court is required to consider a sentence that includes one or more of the following sanctions:

(i) subject to s. 54, order the young person to perform a community service at the time and on the terms that the court may fix, and to report to and be supervised by the provincial director or a person designated by the youth justice court;

(j) subject to section 51 (mandatory prohibition order), make any order of prohibition, seizure or forfeiture that may be imposed under any Act of Parliament or any regulation made under it if an accused is found guilty or convicted of that offence…

(k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years;

(n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody, and a second period – which is one half as long as the first – be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order…

(p) subject to subsection (5), make a deferred custody and supervision order that is for a specified period not exceeding six months, subject to the conditions set out in subsection 105(2), and to any conditions set out in subsection 105(3) that the court considers appropriate.

[17] Section 42(5) restricts the availability of a deferred custody and supervision order in the following terms:

The court may make a deferred custody and supervision order under paragraph 2(p) 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 set out in section 38 and the restrictions on custody set out in section 39.

[18] Since H.A.H. was not found guilty of a "violent offence," and since these were the first findings of guilt made against him, it was agreed that the restrictions on custody in s. 39 relevant to this case are the following:

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

(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.

(3) In determining whether there is a reasonable alternative to custody, a youth court justice 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.

(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.

(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).

[19] In R. v. R.E.W. (2006), 205 C.C.C. (3d) 183 at pp. 193-194 (Ont. C.A.), Rosenberg J.A. explained how s. 39(1)(d) should be interpreted:

[31] The theme that runs through the use of the term "exceptional" in both criminal case law and legislation is that it is intended to describe the clearest of cases. Such cases include those where applying the normal rules would undermine the purpose of the legislation, where the exercise of the unusual power is necessary or required, and where the exercise of the unusual jurisdiction is capable of explanation. The wording of s. 39(1)(d) is consistent with this approach. The exceptional power to commit a young person to custody is reserved for those circumstances where, in effect, any other order would undermine the purpose and principles set out in s. 38. The analysis of s. 39(1)(d) must be set against the background of s. 38, which stresses the importance of interfering with a young person's liberty as little as possible. For example, s. 38(2)(d) states that youth justice courts should consider "all available sanctions other than custody that are reasonable in the circumstances". Section 39(2)(e) further directs that youth court justices should apply the "least restrictive sentence" and "the [sentence] most likely to rehabilitate the young person".

[20] To avoid any remaining uncertainty concerning the proper interpretation to be given to s. 39(1)(d), Rosenberg J.A. repeated his conclusions at pp. 197-198:

[44] I draw the following conclusions respecting the interpretation of s. 39(1)(d):

• The object and scheme of the YCJA and Parliament's intention indicate that the Act was designed to reduce the over-reliance on custodial sentences that was the experience under the [Young Offenders Act]…

• An expansive definition of "exceptional cases" would frustrate Parliament's intention to reduce the over-reliance on custodial sentences.

• Section 39(1)(d) can be invoked only because of the circumstances of the offence, not the circumstances of the offender, or the offender's history.

• Exceptional cases are those where any order other than custody would undermine the purposes and principles of sentencing set out in s. 38. Put another way, s. 39(1)(d) is intended to describe the rare non-violent cases where applying the general rule against a custodial disposition would undermine the purpose of the YCJA.

• Exceptional cases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can be justified.

• One example of an exceptional case is a case where the circumstances are so shocking as to threaten widely-shared community values.

Whether a Custodial Sentence is Available in this Case

[21] In my view, the Crown has failed to establish that the indictable offences committed by H.A.H. meet the requirements of s. 39(1)(d) of the YCJA. Without in any way minimizing the gravity of the offences or overlooking the community's rightful condemnation of H.A.H.'s conduct, the evidence, I am compelled to find, simply fails to disclose the aggravating factors that would be needed to permit a custodial sentence.

[22] Both Ms. Rogozinski, Crown counsel at trial, and Mr. Willschick, defence counsel, referred to several, albeit now quite dated, YCJA sentencing cases considering whether the particular circumstances surrounding the firearms possession offences at issue in those cases met the s. 39(1)(d) "gateway to custody" conditions. Moreover, both counsel agreed that their research had found no more recent cases deciding the issue, much less providing assistance in determining, generally, the range of youth sentences for similar offences committed by similarly situated young offenders.

[23] Given the fact-specific nature of the s. 39(1)(d) threshold, it is perhaps not surprising that different judges would come to differing conclusions as to whether a particular case could be viewed as an "exceptional" one, where only a custodial sentence could be viewed as reasonable or acceptable.

[24] It is to be observed that in R. v. Nur, 2015 SCC 15, 322 C.C.C. (3d) 149, dealing with a s. 12 Charter challenge to the mandatory minimum sentences in s. 95(2) of the Criminal Code, the Supreme Court recognized the widely varying circumstances that could lead to very different conclusions concerning the gravity of a specific s. 95(1) offence, the aggravating or mitigating factors that might be present, and ultimately the kind of sentence that would be considered proportionate.

[25] As examples of youth sentences in somewhat comparable cases where judges found custodial sentences to be available and, indeed, ultimately required, reference was made to R. v. M.J., 2007 ONCJ 283 (Wong J.); R. v. A.R., [2007] O.J. No. 1202 (Tuck-Jackson J.); R. v. T.R., [2007] O.J. No. 4074 (Foster J.); R. v. J.H., 2010 ONCJ 231 (Barnes J.); and R. v. B.E., 2013 ONCJ 713 (Murray J.). On the other hand, reference was also made to other YCJA cases involving the possession of a firearm where there was either an explicit finding that it was not an "exceptional" case under s. 39(1)(d) or where the judge simply proceeded to impose a non-custodial sentence: see R. v. N.G., 2007 ONCJ 129 (Gage J.) and R. v. A.A., 2005 ONCJ 480 (Blacklock J.).

[26] In my view, it is not necessary to attempt to reconcile the differing conclusions or to express agreement or otherwise with the specific youth sentences imposed in those cases. More to the point, I think, is simply the observation that there appears to be no unanimous opinion that, for example, an offence like possession of a loaded prohibited firearm invariably requires, by its very nature, regardless of the presence or absence of particular aggravating circumstances, a finding that the "gateway" conditions have been met.

[27] The difficulty with the Crown's position in the present case, it seems to me, is that the evidence on which the Crown relied does not permit, much less compel, a conclusion that H.A.H.'s offences involved an "exceptional" case, nor does it allow findings as to what aggravating circumstances have been proved beyond a reasonable doubt.

[28] There is no evidence here, as already noted, as to where the loaded sawed-off shotgun came from, nor who, in particular, put it in the car belonging to H.A.H.'s mother that he had taken without her consent some hours earlier. There is clear evidence that H.A.H. had personal or constructive or joint possession of the firearm in question, with the requisite knowledge and control sufficient to make out the offences, and that he was the driver immediately before the intervention by the police and the discovery of the gun. At the same time, however, there is an absence of evidence as to exactly what degree of responsibility H.A.H. personally bears himself.

[29] While there was substantial security camera footage of H.A.H.'s association with the other occupants of the vehicle immediately before, during, and shortly after the commission of the offences, as well as with other suspicious persons in the vicinity, there was no evidence as to the nature of H.A.H.'s relationship with these people. Indeed, the Crown initially took the position that the names of the others shown on the video clips were irrelevant, and that they could just be referred to as numbered "targets," as though it would be possible to construct or follow a sensible narrative simply by watching often blurry, indistinct images of different unidentified figures engaging in different movements in different locations. In any event, while I gather that some individuals involved were likely older than H.A.H., the evidence certainly did not disclose whether he was a leader or a follower, or what external influences might have led to his involvement, or what the motivation for his participation or his intent at the time might have been.

[30] Similarly, there was no evidence, circumstantial or otherwise, of what the object of the joint enterprise, foiled by the unexpected intervention by the uniformed officers, actually might have been. A robbery or a drive-by shooting are perhaps among the speculative possibilities, and I have no doubt that any right-thinking member of the public would find H.A.H.'s offences alarming in the extreme and warranting forceful denunciation. At the same time, however, apart from the essential elements of the offences of which he has been found guilty, I think one would be hard-pressed to identify precisely what aggravating factors would allow H.A.H.'s case to be characterized as among the "clearest of cases" requiring a custodial sentence, merely by virtue of the nature of the offences themselves.

[31] I should add that my observations concerning the limitations of the evidence should not be taken as implying any criticism of the police investigation that was conducted. To the contrary, I accept that the security camera footage on which the Crown's case depended required a great deal of time and effort to collect and assemble. The remaining state of uncertainty concerning whatever aggravating factors were present simply reflects the evident lack of co-operation by the people who were involved or by others in the community who might normally be expected to come forward as witnesses.

[32] Given the sentencing policy dictated by the YCJA, however, the default position is not to assume that serious offences like the ones committed by H.A.H. necessarily warrant a custodial sentence. The opposite is true. As Rosenberg J.A. explained, the statute has in fact enacted a prohibition against making such a leap, regardless of whether one might have justifiably expected a jail term for an adult offender who committed the same offences. General deterrence, to repeat it, is not to be taken into account here.

[33] In my opinion, then, a custodial sentence is not available in this case. I must, therefore, consider H.A.H.'s personal circumstances, as disclosed by the reports filed and the submissions made, in determining the appropriate sentence.

The Pre-Sentence Report

[34] H.A.H. was born in Toronto on May 11, 1999, so he is now 18 years old. He was 17 when he committed these offences. He lives with his mother and three sisters, ages 20, 19 and 8, and one brother, 11, in a townhouse in a community housing complex known as Scarlett Heights.

[35] Both of H.A.H.'s parents, now divorced, immigrated to Canada, separately, from Somalia in the 1990's. Although his father moved to Alberta five years ago to work as a heavy machine operator, he visits Toronto often and has maintained a positive relationship with his children. H.A.H.'s mother, according to the PSR, gave up her job at her brother's restaurant when H.A.H. encountered his current YCJA charges, the first time he has been in conflict with the law. She manages to support the family with her welfare benefits and help from her oldest daughters, who work part-time while still students. H.A.H.'s mother stated that she has always maintained strict discipline over all of her children, and that H.A.H. never broke the household rules, including a nightly curfew.

[36] The PSR stated that H.A.H. has no significant mental health issues, no history of aggressive behaviour and no gang affiliation, although it was noted that he might have been adversely influenced by the older brothers of his closest friend, who was also involved in the commission of the offences.

[37] While H.A.H. has changed schools a number of times, he currently attends an alternative, community-based high school, where he is expected to have sufficient credits to allow him to graduate in June 2019, despite sometimes low academic achievement and earlier attendance problems. The curriculum leader at his school provided a favourable assessment of H.A.H., suggesting that he was a good person who was now avoiding the negative peers with whom he had previously been associated. Despite his literacy and mathematics challenges, he was seen as a student who is making progress and might eventually be capable of post-secondary education.

[38] In addition to his family support, H.A.H. has always been actively involved in the local Muslim community and has had the benefit of a one-on-one mentorship relationship with the person responsible for a program for children and youth.

[39] Also, according to the PSR, there is no suggestion that H.A.H. has failed to comply with any of his bail conditions (by which he has now been bound for over 16 months), which included a "house arrest" condition, with exceptions for attending school or while in the company of his mother or his other surety.

[40] The PSR refers to concerns expressed by both H.A.H. and his mother with respect to crime in the Weston neighbourhood where they live. Reference is also made to the possibility of the family's relocating to Alberta or moving to Somalia for an extended period. There appears, however, to be no concrete plan currently to do either. In any event, the provisions of ss. 56 and 57 of the YCJA governing inter-provincial transfers of youth sentences, were not the subject of any submissions or applications, so I think the sentencing should proceed on the basis that the sentence will be served in this jurisdiction.

[41] The PSR further states that H.A.H. appears to be remorseful for his involvement, left unspecified, in the offences, and that he would be amenable to participation in youth programs of the kind identified by the probation officer. She also specifically recommended conditions of probation to including reporting and requiring H.A.H. to maintain his school attendance.

The Section 34 Psychological Assessment

[42] After the PSR was received, on the date set for sentencing, the Crown applied for an order under s. 34 to assess H.A.H. for any mental health or learning issues and to provide "a cognitive and academic assessment." Despite the resulting delay and the likelihood that such a report would not affect the central issue of whether the offences met the s. 39(1)(d) "gateway to custody" requirements, defence counsel consented to the order, submitting that a psychological report would only be helpful to his client. Accordingly, the order for a s. 34 report was made. The "psycho-educational assessment" was conducted at Child, Youth and Family Services, at the Centre for Addiction and Mental Health (CAMH) in Toronto. A very detailed report, dated January 2, 2018, prepared by Elisea De Somma, M.A. and Dr. Teresa Grimbos, a staff psychologist, was filed for purposes of the youth sentencing.

[43] It should be pointed out that the repeated references in the CAMH report to H.A.H.'s "probation officer" and to his compliance with his "probation" conditions were somewhat misleading, in that H.A.H. has no prior YCJA history. Rather, the references were intended to refer to the probation officer at the Ministry of Children and Youth Services who was assigned to prepare the PSR, and to H.A.H.'s bail conditions imposed with respect to the present charges.

[44] Similarly, the references in the CAMH report to H.A.H. having pleaded guilty are in error. He was found guilty after a contested trial, with the relevant factual admissions concerning the chronology coming only after hours spent watching surveillance video clips during the trial. Moreover, H.A.H.'s statement to the psychologist that the offences related to a situation in which a friend had played a joke on him by leaving the gun behind in the car he had lent him, for reasons H.A.H. could not fathom, was completely inconsistent with the evidence called by the Crown at trial, as well as being unsupported by any other evidence led by either party. That being said, I should say that H.A.H. is obviously entitled to persist in a state of denial, if he chooses, and to minimize the extent of his participation. At most, I think, his present attitude is relevant only to the principle in s. 38(2)(e)(iii) that a youth sentence should "promote a sentence of responsibility in the young person." It is not to be taken into account as an aggravating factor.

[45] Along the same lines, it is perhaps difficult to reconcile the statements, at p. 17 of the CAMH report, both that "[h]e reported feeling angry, ashamed, regretful and guilty about his offending," and also that "[h]e said that his environment [his current neighbourhood] is the issue, noting that there is no need to change himself." Again, however, I do not think that such statements need to be analyzed too closely, or that concerns about their sincerity should be factored into the sentencing.

[46] The CAMH report likewise repeats what was stated in the PSR concerning a potential plan for the family to move to Edmonton if, as H.A.H. put it, "he manages to "beat" the case," and if his divorced parents reconcile, once the matter is completed. It is hard to know exactly what is contemplated by H.A.H. or his mother, but I think the present reality includes the fact that H.A.H. has sisters and a brother in school in Toronto, extended family members here on both sides with whom he is close, and that he himself is finally progressing well at his current secondary school, from which he is not expected to graduate until June 2019. Again, in my view, the sentencing should proceed on the assumption that H.A.H. and his family will remain in this jurisdiction for the foreseeable future, regardless of any other speculative possibilities that might be proposed.

[47] Despite his mother's opinion that her son is "very mature and responsible for his age," and her statement that she imposed a somewhat unlikely "7 p.m. curfew, which [H.A.H.] has always followed" (although clearly not on the night of the offences or the days following), the CAMH report identifies a number of areas of persistent concern.

[48] With respect to his cognitive assessment, it was observed that H.A.H. demonstrates verbal and non-verbal reasoning abilities that are significantly below expectations for his age, but not to the point of an intellectual disability. Rather, it appeared, he met the DSM-5 criteria for a specific learning disorder with impairments in reading, written expression and mathematics.

[49] H.A.H.'s present secondary school placement was considered suitable, providing him with the extensive supports and services he requires for his language and literacy difficulties. The CAMH report confirms the statement in the PSR that he is on track to graduate from high school in June 2019, although there are many elective courses he must still complete and 40 hours of required community service, which, one can surmise, his "house arrest" bail condition might have made problematic. The CAMH report does not explain why H.A.H. has an inconsistent calculation of the number of academic credits he has already earned or why he expects to graduate a year earlier than the school's curriculum leader stated.

[50] While there have been some fairly recent concerns regarding his school attendance, it was noted that "he is present for at least part of each school day, and most consistently in the afternoon," and his mother asserted that she closely monitors his whereabouts. Similarly, while a year earlier, it was stated, he frequently attended school intoxicated, smelling of marijuana and with bloodshot eyes, no such problems have evidently been observed during the current school year.

[51] No specific mental health issues were identified in the CAMH report, apart from minor social anxiety and the fact that H.A.H. reported, understandably, that he viewed the death of his cousin in a shooting incident in 2013 as traumatic.

[52] The CAMH report stated that H.A.H. was of low risk to re-offend, and that his education and disengagement from negative peers should be the current focus. A number of specific counselling recommendations were made by Ms. De Somma and Dr. Grimbos. The psychological assessment concluded as follows:

Overall, [H.A.H.] is a capable young person with strong family support and some prudent plans with regards to staying out of trouble that have already been set in motion, such as focusing on his education.

The Appropriate Youth Sentence

[53] I am required to consider the specific factors set out in s. 38(3).

[54] I think it is apparent, for reasons already stated, that it is not possible to describe with any certainty or precision H.A.H.'s "degree of participation" in the commission of the offences.

[55] Similarly, although the intervention by P.C. Bahula and P.C. Ghandi was clearly not anticipated by H.A.H. or the others involved in committing the offences, it did, fortunately, have the result of preventing actual harm to any victim. If such harm had occurred, with the firearm put to whatever use had apparently been planned, I accept that it would almost certainly be regarded as reasonably foreseeable and probably intended. Given that no actual harm resulted, however, I do not think that any such finding could be justified, even in the admittedly troubling circumstances.

[56] H.A.H. has no previous findings of guilt.

[57] As far as I am aware, H.A.H. spent no time in detention as a result of the offences, apart from the unspecified period between his arrest and bail hearing. Still, it should be noted that he has now spent 16 months on bail, with a so-called "house arrest" condition, allowing him to be outside his residence only for school or with his mother or other surety. According to the PSR and the s. 34 CAMH report, this has obviously had an impact on his normal recreational activities and social life, which, despite some school attendance problems earlier, have apparently contributed more recently to his improved rehabilitative prospects.

[58] The mitigating circumstances include H.A.H.'s favourable PSR and psychological report, reflecting his strong family support, and a generally stable situation already providing, or capable of providing, supervision and discipline.

[59] The glaring aggravating circumstances are the nature of the offences, involving a loaded prohibited firearm, committed as part of an apparent joint enterprise that required a degree of planning and co-ordination among a group of people who, it seems safe to infer, could easily have caused enormous grief and irreparable harm.

[60] It is agreed that since both offences arise from the same occurrence, the same youth sentence, concurrent on each charge, would be the proper course.

[61] Of the youth sentencing options available under s. 42(2), I have concluded that, first, a community service order under paragraph (i) would be appropriate as part of the "meaningful consequences" holding H.A.H. accountable for his offences. In addition, a probation order authorized by paragraph (k) would be appropriate to promote H.A.H.'s rehabilitation. Further, the ancillary orders authorized by paragraph (j), which are not opposed in any event, should be made with respect to the forfeiture of the prohibited firearm, a weapons prohibition order, and a DNA order.

[62] The sentence will include, then an order that H.A.H. perform 40 hours of community service during the next 12 months. I am satisfied, as required by s. 54(7), (8) and (9), that H.A.H. is a suitable candidate, that performing the service work will not interfere with his schooling or part-time employment (which he does not now have, in any event), and that the provincial director will be able to specify an approved program with an agency willing to accept H.A.H.'s services. If it is possible for the community service which is part of the youth sentence to coincide with the community service required to complete secondary school, so much the better.

[63] A probation order is obviously required. While there is no single appropriate length of time that is dictated by the circumstances, I think a probation order for 18 months is warranted. At the completion of this period of probation, he will be 20 years old, having, one hopes, graduated from high school, and having achieved a level of maturity and personal responsibility not always demonstrated during his adolescence. The probation order will include the following conditions, required or permitted by ss. 55 and 56:

1. keep the peace and be of good behaviour;

2. appear before the youth justice court when required by the court to do so;

3. report to and be supervised by the provincial director or youth worker assigned to the case by the Ministry of Children and Youth Services;

4. notify the clerk of the youth justice court, the provincial director or the youth worker assigned to the case of any change of address or any change in employment, education or training;

5. attend school full-time, not missing any classes except for medical reasons, religious reasons or personal or family emergencies, until he has graduated from secondary school;

6. continue to reside with his mother;

7. not contact or communicate, directly or indirectly by any physical, electronic or other means, with [three named persons] or any other person named by the youth worker or his mother;

8. not enter the building located at 58 Waterton Road, Toronto;

9. not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance;

10. attend whatever rehabilitative program(s) is/are directed by the provincial director or youth worker, including, but not limited to, referral(s) to Turning Point Youth Services, Youth Outreach Worker program at Yorktown Family Services, or any other agency to which he is directed by the youth worker.

[64] A copy of the CAMH report dated January 2, 2018, shall be appended to the probation order, a copy of which will be provided to all of the parties involved in the current youth sentencing proceedings, including H.A.H.'s mother, as well as the provincial director and the youth worker assigned to the case. In addition, the reasons for judgment relating to the findings of guilt that were made, as well as these reasons for sentence, will also be attached to the probation order.

[65] The ancillary orders will include, in the usual wording, an order that the firearm be forfeited and destroyed, unless required by the Crown as evidence in other proceedings, and a firearms and other weapons prohibition order under s. 51(1) of the YCJA for a period of two years.

[66] There will also be a DNA order under s. 487.051 of the Criminal Code, since both offences, it was agreed, come within the definition of "secondary designated offence" in s. 487.04.

Disposition

[67] By way of summary, then, the youth sentence imposed on H.A.H., concurrent on Counts 3 and 4, is the following:

(i) an order for 40 hours of community service to be completed within 12 months;

(ii) probation for 18 months, on the conditions stated.

[68] In addition, with respect to Count 4 (possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code), there will be the weapons prohibition order, required by s. 51(1) of the YCJA, for 2 years from today's date.

[69] Since both offences committed by H.A.H. are secondary designated offences, and I am satisfied that it is in the best interests of the administration of justice to require it, there will also be an order that he supply a blood sample for purposes of the national DNA data bank.

Released: February 1, 2018

Signed: Justice David A. Fairgrieve