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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: 2019-07-23

Court File No.: London 18-Y16526

Sitting as a Youth Court under the Youth Criminal Justice Act, S.C. 2002, c. 1

Parties

Between:

Her Majesty the Queen

— and —

J.B., a young person

Before the Court

Justice: Harris Bentley

Sentencing submissions heard: July 8, 2019

Sentencing Decision: July 23, 2019

Counsel:

• Kenna Dalrymple, counsel for the Crown
• Ron Ellis, counsel for the defendant J.B.

Decision

HARRIS BENTLEY J.:

Charges and Guilty Pleas

[1] J.B. plead guilty to stealing from Asmaa Sayed, while armed with an imitation of an offensive weapon, namely a paintball gun, contrary to section 344(1) of the Criminal Code, and to using an imitation firearm, namely an imitation rifle while committing an indictable offence, contrary to section 85(3) of the Criminal Code with respect to events which took place December 14, 2018.

[2] J.B. also pled guilty to two charges of failing to comply with his recognizance by breaching a curfew condition on May 12, 2019 and June 23, 2019 contrary to section 145(3) of the Criminal Code.

Facts

[3] On December 14, 2018, Mohammed Sayed, Walid Sayyed and Asmaa Sayed were working at Shawarma Boys, a family restaurant and store in London. At 9:25 p.m., J.B. entered the restaurant brandishing what the victims thought to be a firearm. It was black and resembled a 16mm assault rifle. He held the firearm and pointed it in the general direction of staff. He told them to open the cash register and give him all of the money. He banged on the counter with the gun and then walked into the kitchen area.

[4] Walid Sayyed was in the kitchen cutting meat. He held up his knife and a tray for protection. Mr. Sayyed walked towards J.B. slowly, telling him to relax. J.B. backed up and ran out of the restaurant.

[5] As J.B. ran across the street, he lost a shoe and dropped the weapon and then tried to hide behind a dumpster and then a tractor trailer. Police arrived and arrested and handcuffed J.B. He told police that he had a "piece". Police located a Tipman 98 custom paintball gun nearby.

[6] J.B. told police he had cut his hair into two stripes prior to the robbery and that he had been planning to shave off afterwards.

[7] J.B., through counsel, informed the court that he was using substances at the time and was encouraged to commit the robbery by peers.

[8] On December 17, 2018, J.B. was released from custody on the robbery. He had a curfew from 9 p.m. to 7 a.m. and a condition not to possess alcohol. On May 12, 2019, J.B. was residing with a foster family out of town. Arrangements were made for him to visit his mother in London. J.B. made arrangements to meet his foster parents at a particular location at 9 p.m. He did not arrive at the appointed time and the foster parents contacted him. J.B. told his foster parents that he was not coming back and that he would remain in London with friends. He turned himself in one week later.

[9] On June 23, 2019, J.B. was again permitted to visit in London for the weekend. At 2:30 p.m., J.B. said he would return on the train leaving at 7 p.m. The foster parents attended at the train station at 9:15 p.m. They waited until 10 p.m. but J.B. did not appear. He was arrested June 24, 2019.

Circumstances of the Offender

[10] A pre-sentence report was prepared for J.B. who is now 16 years old and was 15 at the time of the robbery. The writer of the report stated that J.B. presented himself in a very honest, mature and compliant manner in preparation of the report.

[11] J.B. has been with the Children's Aid Society for the past few months. He was placed at a foster home in Erin, Ontario on April 29, 2019 on a voluntary basis. J.B. was described as very friendly, personable and intelligent while at the home in Erin. He has been respectful and helpful to the foster parents although he spent much of his time in his bedroom.

[12] J.B. had been previously residing with his mother, stepfather and two younger siblings and two stepsiblings. J.B.'s biological father has not been in his life. J.B. reports that he and his mother have not been getting along and that his family do not want him back in their family home. J.B.'s mother did not respond to requests for her to participate in this report.

[13] J.B. took full responsibility for his actions in the robbery. He said that it was the most stupid thing he has done in his life. He stated that he felt sorry for the victims as they "did not deserve that". He stated that he wants to do right by the people he has wronged.

[14] J.B. graduated from grade 8 and attended two secondary schools in grade 9 and 10. He did not earn any high school credits. He stated this was due to him spending too much time hanging around with his friends and not attending class. Since being at King Street Detention Centre, J.B. has received a half credit. J.B. has an academic goal of graduating with his Ontario Secondary School diploma. He is interested in attending Fanshawe College in the trades program.

[15] While in detention from March 5, 2019 to April 29, 2019, J.B. participated in therapeutic programming including for substance abuse, during which he was able to relate his personal life experiences and verbalize the importance of healthy lifestyle choices. J.B. also completed programming regarding peer relations and financial literacy. J.B. was released with a glowing discharge summary. The summary included that he engaged in pro-social activity and displayed positive behaviour with his peers. He was open to learning new skills and increasing his abilities. He completed chores regularly and demonstrated respect to his peers and staff.

[16] J.B. hopes to return to a regular high school in London in September 2019. His goal is to transition to a place of his own in London close to his friends.

Victim Impact Statements

[17] Victim Impact Statements were provided by Mohammad Sayed, Asmaa Sayed and Walid Sayyed.

[18] Mohammed Sayed stated that he was fearful of going to the restaurant at night and has lost trust in strangers.

[19] Asmaa Sayed stated that the offence affected her very badly and negatively. She feels afraid of strangers who come to the store, especially at night time. She feels the need to have someone with her whenever anybody comes into the store. She felt as though she were dreaming when she saw the gun in front of her face. Ms. Sayed does not sleep well and has nightmares of people trying to kill her with a gun or knife while trying to steal her money. She is still frightened of J.B. returning and trying to kill the family. These events make her see people in a different way. She is sad that she has no confidence in anyone. Some of the customers who knew about the offence have been afraid to return to the store. Ms. Sayed ended by saying "Love and peace and good living. We all deserve it. Love you Canada." A drawing of a gun is placed beside these words.

[20] Walid Sayyed stated that this day was one of the most difficult in his life. He is still afraid for himself and his family. He dreamed that J.B. was out of prison and came to the restaurant to kill his sister. He suffers from pain because of what happened. Approximately half of the customers did not return to the restaurant because of what happened. There was a significant financial repercussion for the business. Mr. Sayyed has lost the feeling of safety he had before this incident. The incident has changed the way he sees people. Mr. Sayyed also suffers from feelings of sadness.

Crown and Defence Positions

[21] The Crown seeks a sentence of one year in custody followed by probation and the appropriate ancillary orders. The Crown argues that this robbery is a violent offence as defined in section 39(1)(a) of the Youth Criminal Justice Act (YCJA). The Crown argues that the definition of violent offence is set out in R. v. C.D., 2005 SCC 78 and that the amendments under the Safe Streets and Communities Act, 2012 do not affect the application of the definition. Consequently, custody is available.

[22] The defence submits that a period of probation is the appropriate sentence in the circumstances. In the alternative, should I find the gateway to custody open, J.B. has served sufficient time, being 86 days or the equivalent of 129 days. If further custody should be required, the defence asks that J.B. be allowed to serve it with a sentence of deferred custody and supervision.

[23] The defence argues that robbery is not a violent offence as defined in section 39(1)(a) because bodily harm is not an element of the offence. The defence concedes that a threat of bodily harm was made by the accused. He entered the store with a replica firearm and pointed it at the employees. However, the defence argues that requirement of the element of bodily harm determination should be statutory–dependent rather than fact–dependent.

Youth Sentencing

Is Custody an Available Sentence for J.B.?

[24] As the issue of whether a custodial sentence is available for these offences has been the main area of submissions, I will address that issue first. Para. 39 YCJA restricts the availability of custody in sentencing to four circumstances. S 39(1)(b) and (c) do not apply here.

Committal to custody

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;…

(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38

2(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.

[25] Are robbery and using an imitation firearm while committing a robbery offences that include as an element the causing of bodily harm? Where an accused is charged with an offence that does not require an element of bodily harm for the offence to be made out but it is established on the facts that a threat of bodily harm was made by the accused, does this fall within the definition of violent offence under para. 2(1) YCJA?

Background

[26] Prior to the enactment of the Safe Streets and Communities Act, S.C. 2010, c. 1, the term "violent offence" lacked a statutory definition.

[27] In R. v. C.D., 2005 SCC 78 and its companion case R. v. C.D.K., the Supreme Court of Canada defined "violent offence". In the context of a dangerous driving case, the Alberta Court of Appeal had determined that, "if it is reasonably foreseeable that criminal conduct may result in bodily harm that is more than merely trifling or transitory, the offence is violent for the purpose of para. 39(1)(a) of the Act." Bastarache J. of the Supreme Court of Canada, rejected this definition. In its place, the following harm-based definition for a violent offence was set out at para. 17:

an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm.

The Safe Streets and Communities Act, 2012

[28] The Safe Streets and Communities Act enacted a definition of "violent offence" under s. 2 of the Act.

[29] Following a review of Hansard from both the House of Commons and Senate, and their respective committees tasked with examining the proposed amendments, the motivation for the new definition appears to be the government's opinion that the Supreme Court of Canada had too narrowly defined the term "violent offence" in R. v. C.D. /C.D.K., ibid.

[30] Minister of Parliament Stephen Woodworth, who chaired the standing committee tasked with examining the bill and who spoke on behalf of the Conservative Party responsible for sponsoring the bill during its second reading in the House of Commons, stated the following about the proposed definition:

The amendments … expand the meaning of "violent offence" under the Youth Criminal Justice Act. The current scope of "violent offence" under the act was interpreted by the Supreme Court of Canada as including offences in which an offender causes or attempts to cause or threatens to cause bodily harm, but not to include other offences that endanger someone's life or safety. (Emphasis added.)

The proposed definition includes offences in which a young person actually endangers the life or safety of another person by creating the substantial likelihood of causing bodily harm. This new definition would have application in a number of areas, including the imposition of custodial sentences and the lifting of publication bans. [emphasis added]

House of Commons Debates, Second Reading of Bill - C10: Safe Streets and Communities Act, Volume 146, Number 021, 1st Session, 41st Parliament, September 27, 2011, Mr. Stephen Woodworth, Kitchener Centre, CPC, at p. 1505

[31] Senator John Wallace, sitting as the Chair, made the same observation of the proposed definition during debates in the Senate Standing Committee on Legal and Constitutional Affairs:

Bill C-10 proposes to establish [among a number of amendments] to expand the case law definition of "violent offences" to include reckless behavior that endangers public safety … [emphasis added]

Senate Standing Committee on Legal and Constitutional Affairs, Bill - C10: Safe Streets and Communities Act, Volume 146, Number 021, 1st Session, 41st Parliament, February 22, 2012, Senator John D. Wallace, at p. 13-8.

[32] During debate of the bill in the House of Commons' Standing Committee on Justice and Human Rights, Law Professor Nicholas Bala was called as a witness to speak of the motivation behind the proposed amendments to the Act. In response to a question regarding the proposed statutory definition of a "violent offence", the Professor explained the following:

I think there is some value to changing the definition of violent offence, and Justice Nunn, in his report in Nova Scotia, addressed that issue and did suggest there are cases where a young person might be endangering the public. [emphasis added]

House of Commons Debates, Standing Committee on Justice and Human Rights, Debate on Bill - C10: Safe Streets and Communities Act, Professor Nicholas Bala, Number 007, 1st Session, 41st Parliament, Tuesday, October 25, 2011 at p. 4.

[33] It is clear that the focus was to add liability to young people who engaged in activity which had a potential to endanger the public. Para. (c) of the definition of "violent offence" under s. 2 of the Youth Criminal Justice Act (YCJA) sets out the endangerment circumstance addressed in the hearings.

[34] In enacting the remainder of the definition, Parliament did not adopt the Supreme Court language of "an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm". Parliament has chosen the words, "an offence committed by a young person that includes as an element the causing of bodily harm". Para. (b) adds an attempt or threat to commit an offence in para. (a). Counsel have not been able to locate any other discussion in Hansard or other records of why there was a change in language.

[35] The word "element", in the context of an offence has a meaning which is understood in criminal law. All essential elements of an offence must be proven by the Crown in order to establish a conviction. The Crown asks that I consider "element" in the definition of violent offence to mean existing as part of the facts, rather than something which requires proof.

[36] It is instructive to look at para. (c) of the definition of violent offence to assist with statutory interpretation. Parliament has chosen to use the language, "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". [emphasis added] The deferred custody provision in para. 42(5) YCJA also uses the language "in the commission of which…" In my view, the meaning is clear and unequivocal and it is consistent with the Supreme Court language. If Parliament had mean para. (a) to mean "where bodily harm exists as a fact" in that particular offence, it would have used the same language.

[37] As Doody, J said in R. v. M.A., [2017] O.J. No. 856 (ONCJ):

Nor was there a definition of this term [violent offence] 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.

[38] Crown counsel suggests that the court in R. v. M.A., ibid did a fact based analysis. I agree that the court took account of the young person's background and the offence before the court as it should have to determine his sentence. It used the Supreme Court of Canada definitions with respect to analyzing the deferred custody option. It did, though, determine whether custody was available by looking to see whether the causing of bodily harm was an element of the offence of robbery at para. 26:

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 para. 343 of the Criminal Code.

[39] Crown counsel suggests that the words "committed by a young person" suggest a fact-based determination. If Parliament had intended a statutory based interpretation, the Crown argues, it would have used the same language as the s. 2 YCJA definition of "serious violent offence". The wording is as follows:

Serious violent offence means an offence under one of the following provisions of the Criminal Code (and then lists 7 offences)

[40] I cannot determine why Parliament chose to use different language in the definition set out above. It may have had to do with the listing of entire offences rather than elements of them. I am not convinced that this language points to a fact-based inquiry.

[41] The Crown referred to R. v. K.S.V., [2015] S.J., No. 92 (SKPC), where the youth plead guilty to robbery and having his face masked with intent to commit an indictable offence. The robbery involved four persons (including the youth). An imitation firearm being a BB gun was held against the victim's head. The victim reported being frightened at the time of the offence and experienced ongoing anxiety as a result of the offence. Both Crown and defence agreed that the robbery was a violent offence so that the issue of whether or not it was a violent offence was not fully explored.

[42] The Court held that the robbery was a violent offence in that it was, "an offence committed by a young person that includes as an element the causing of bodily harm", referring to para. (a) of the definition of violent offence under section 2 of the Act. The Justice went on to explain at para. 25:

It is clear and agreed upon that the psychological harm to the victim caused by the robbery meets the definition of bodily harm contained in para. 2 of the Criminal Code, which states "bodily harm means 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.

[43] The analysis is fact-based. In my view, the court did not benefit from a full discussion of the language used in the YCJA. I respectfully disagree that the offence included as an element the causing of bodily harm.

[44] Cozen, J in R. v. K.S., [2016] YJ No 53 (YKCJ) at para. 130, commented on the language used in sections 2 (a) and (b) saying:

However, I am satisfied that there is no substantial difference between the meaning of "violent offence" as stated in C.D. and as subsequently defined in s. 2 of the YCJA, and therefore I find that these were violent offences whether they occurred before or after October 23, 2012.

[45] Daunt, J in R. v. N.C., S.J. No. 234, in sentencing a young person for a section 271 offence stated that the elements of the offence did not include bodily harm. He was considering the elements of the offence as they are commonly referred to. Justice Daunt, J. went on to say at para. 11:

"Furthermore, section 42(5) precludes a deferred custody order for "an offence"… in the commission of which a young person causes or attempts to cause serious bodily harm." Given the reasoning in V.I.C. and R. v. McCraw, N.C. clearly committed such an offence, it seems absurd that an offence is too violent to allow an alternative to custody (deferred custody), but not violent enough to allow custody in the first place. Nevertheless, in the recent amendments, Parliament did add a third category of violent offence, "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". Parliament added this definition in response to the Supreme Court of Canada decision in R v C.D. ; R v C.D.K., 2005 SCC 78. It is meant to cover the situation where a youth has not been violent, but the act is so inherently dangerous that it should open the door to custody for the youth committing it. However, the wording is broad enough to include N.C.'s offence. I find he endangered the safety of D.M. by creating a substantial likelihood of causing bodily harm, in the sense of psychological harm, if not physical injury.

[46] The Crown suggests that I resolve the absurdity as set out in this case by deciding that the analysis should be factually driven. I note that when custody is not available, neither is a deferred custody and supervision order.

[47] Defence provided a number of cases of courts of concurrent jurisdiction. See R. v. J.H., [2019] N.J. No. 61 (NLPC), R. v. B.H., [2013] N.J. No. 394 (NLPC), R. v. A.H., 2017 ONCJ 521 and R. v. R.R., 2016 ONCJ 307. Some used a fact-based approach and others a statutory-based approach. The latter two involved counts of dangerous driving causing death.

[48] In R. v. A.H., supra, the judge concluded that the youth committed a violent offence without reference to the facts. See para. 43:

I find that dangerous driving causing death is a violent offence within the meaning of s. 39(1)(a). The definition of "violent offence" in s. 2 of the YCJA includes: "an offence committed by a young person that includes as an element the causing of bodily harm." I find that the element of causing death in dangerous driving meets the requirement of being a violent offence (R. v. C.D.K., 2005 SCC 78, [2005] 3 S.C.R. 668 at paras. 65-87; R. v. R.R., 2016 ONCJ 307 at paras. 44-46.)

[49] In R. v. R.R., supra, the sentencing judge explored whether custody was available under s. 39(1)(a) YCJA at paras. 44-46. Concluding that the offence was a violent one for the purpose of s. 39(1)(a) of the Act, the Justice stated:

"Violent offence" is defined in section 2 of the YCJA to mean, amongst other things, "an offence committed by a young person that includes as an element the causing of bodily harm." While the offence of dangerous driving, absent the required element of bodily harm, does not constitute a violent offence, notwithstanding the reasonable foreseeability of harm [citing R. v. C.D., supra at para. 92], the offence of dangerous driving causing death would seem, on its face, to meet the definition of violent offence as set out in section 2 above, as well as the Supreme Court's interpretation of that section, in R. v. K (C.D.) at para. 87, defining "violent offence" as "... an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm." Neither party has taken the position that a custodial sentence is unavailable. In my view, on the plain language of the statute, a custodial sentence is permitted in the circumstances of the case. [emphasis added]

[50] The language is ambiguous in the latter case, relying both upon the definition in s. 2 YCJA and upon the Supreme Court of Canada's decision in R. v. K (C.D.), supra.

[51] Defence provided the case of R. v. J.S., [2009] OJ. No. 4842, a sentencing involving a robbery of a convenience store using an imitation firearm and a knife. The Court held that a period of probation was inadequate to recognize the seriousness of the offence nor did it properly address the requirement that the young person be held accountable for his actions and that meaningful consequences flow from the sentence imposed. The Court held that crimes of this nature normally call for a significant custodial term but allowed the young person to serve a deferred custody and supervision order of three months as a result of his exceptional rehabilitative progress. There was no discussion of the definition of violent offence nor of the bars to a deferred custody and supervision order.

Conclusion

[52] I am not persuaded that I should ignore the use of the word element in the definition of para. (a) of the definition of violent offence. In my view, there is no ambiguity to the term unless one is troubled by the consequences of interpreting it that way.

[53] In my view, the court is bound by the definition in para. (a) of the definition of violent offence. Bodily harm must be an element of the offence, not simply present in the facts. These allegations required the Crown to prove for the robbery, that J.B. stole or attempted to steal from the victim and that he was armed with an imitation offensive weapon. For the weapons offence, the Crown was required to prove that J.B. used an imitation firearm and that he did so while committing an indictable offence. Neither of the offences before the court require the Crown to prove, as an element of the offence, that bodily harm occurred. Therefore, para. (a) of the definition does not encompass either of the offences to which J.B. plead guilty. Similarly para. (b) of the definition does not apply.

[54] I must then look to para. (c) of the definition. If a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm, they have committed a violent offence pursuant to part (c) of the definition.

[55] "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".

[56] There were no physical injuries in the case before the court. There was evidence, though, that the victims were traumatized by the robbery, having nightmares, viewing the world differently and being sad and afraid.

[57] Cory, J held in R. v. C.D.; R. v. C.D. K., supra at para. 20, that the phrase "serious bodily harm", for the purpose of the original definition of "serious violent offence" in the YCJA, 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.

[58] In my view bodily harm can be defined in the same way without the words, "in a substantial way" for the purpose of para. (c) of the definition of violent offence. Psychological harm is included in the definition of bodily harm.

[59] In my view, entering a business armed with what looks like a real firearm, pointing it at the employees, demanding money and invading a further private area being the kitchen, creates a substantial likelihood of causing psychological harm to the victims. In my view, J.B. endangered the safety of the victims of the robbery in this way.

[60] I find that the gateway to custody is open for J.B. as, further to para. (c) of the definition. He committed a violent offence. As I have determined that he has committed a violent offence, I do not need to consider 39(1)(d) – exceptional cases.

[61] Having determined that the gateway to custody is open, I must look to all of the sentencing principals for youth as well as all of the available sanctions.

General Sentencing Principles

[62] S. 3(1)(b) YCJA states that the criminal justice system for young persons "must be separate from that of adults" and "must be based on diminished moral blameworthiness or culpability" (section 3(1)(b), YCJA). Young persons, even those who commit or are party to violent offences, are not adults and cannot be treated as though they are. Abella, J of the Supreme Court of Canada in R. v. D.B., 2008 SCC 25, stated at par. 41:

… because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability.

The Purpose of Sentencing under the Youth Criminal Justice Act (YCJA)

38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles: …

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

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

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

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

Factors to be considered

(3) In determining a youth sentence, the youth justice court shall take into account

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

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

(c) any reparation made by the young person to the victim or the community;

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

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

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[63] In the present case, the robbery committed with an imitation firearm was a very serious offence. J.B. was the only person participating in the robbery and his degree of responsibility is very high. The victims were harmed psychologically and financially and the psychological harm was reasonably foreseeable. J.B. comes before the court with no criminal record. I take into account the following aggravating and mitigating factors:

Mitigating Factors

[64] The following are the mitigating factors:

1. J.B. plead guilty to the offences thereby saving the victims the stress of having to testify as well as saving the resources of the administration of justice,

2. The plea is an indication of remorse and J.B. has expressed remorse during the course of his presentence report;

3. J.B. had no criminal record at the time of this offence,

4. J.B. has done very well while he has been in custody and has engaged with counselling and schooling.

Aggravating Factors

[65] The following are the aggravating factors:

(1) The nature of the offence itself is very serious – an imitation firearm was taken to intimidate the victims,

(2) The imitation firearm was pointed at the employees,

(3) J.B. went past the public area into the private area of the business,

(4) The offence was planned. J.B. acquired the BB gun, he cut his hair and made plans to shave his head afterwards to avoid being identified,

(5) The victims of the offence were working and should expect to feel safe at their place of work, and

(6) The robbery had a significant impact on the victims, both psychologically and financially.

[66] The applicable sentencing principals are rehabilitation, reintegration into society, denunciation and the specific deterrence of J.B. The sentence must promote a sense of responsibility.

[67] The YCJA requires the court to consider all alternatives to custody before imposing a custodial sentence as follows:

Alternatives to custody

39(2) If any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.

Factors to be considered

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

(a) the alternatives to custody that are available;

(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and

(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

[68] In my view, a period of probation would not adequately denounce nor deter J.B. from committing further offences. It would not hold him accountable nor would it be a meaningful consequence in the circumstances. I am guided by the Court of Appeal in R. v. J.S., supra.

[69] The YCJA provides for a deferred custody and supervision order.

Deferred Custody and Supervision Order

42(5) 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.

[70] As indicated above, the Supreme Court adopted a definition of "serious bodily harm" for the purposes of the definition of serious violent offence in R. v. C.D., supra, para. 20:

"serious bodily harm" is "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 why this definition of "serious bodily harm" should not also be used for purposes of the YCJA, and, in particular, for purposes of the definition of "serious violent offence" that is found in s. 2(1) of the Act.

[71] Under the original provisions of the YCJA, certain offences were designated as serious violent offences which involved determining whether the young person caused or attempted to cause serious bodily harm. Although the current version of the YCJA has codified serious violent offences as the listed offences, the court must still determine, when considering a deferred custody sentence, whether the young person caused or attempted to cause serious bodily harm. The definition set out by the Supreme Court is still applicable for this purpose.

[72] I have reviewed the Victim Impact Statements. The test for a deferred sentence is whether J.B. caused or attempted to cause bodily harm. There is no actual physical bodily harm. The victims are fearful and one of them expresses sadness. Two have nightmares and the effects remain months after the event. In my view, these effects constitute a substantial interference with their psychological integrity. J.B. has caused serious bodily harm.

[73] Therefore, a deferred custody and supervision order is not available.

Sentence

[74] I have considered all alternatives to custody raised at the sentencing hearing, including a deferred custody sentence which I have determined not to be available or a very strict period of probation, and, despite considering the mitigating factors of rehabilitative potential and being a first time offender, I have determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in s. 38 YCJA. The alternatives to custody are not adequate in the circumstances to hold the young person accountable for these particular violent offences nor would they be a meaningful consequence for him in the context of these serious crimes. Nothing less than a sentence that incorporates a custody and supervision order will be sufficient.

[75] In my view, a sentence of the equivalent of 6 months custody and supervision meet the principles of sentencing. J.B. has 86 days of presentence custody which I will enhance on a 1 to 1.5 basis to 129 days, leaving a further 51 days. J.B. will be sentenced to 34 days in open custody where he has been doing well followed by 17 days of community supervision. This will be followed by an 18 month period of probation. This sentence will allow J.B. to start school in the fall term and will monitor the friends with whom he associates, many of whom seem to have been a bad influence on him. This is the least onerous sentence which will hold this young person accountable, and promote rehabilitation and reintegration. This is a serious sentence for a first time young offender.

[76] With respect to the two breaches of probation there will be a concurrent period of probation of 18 months.

[77] The terms of the probation order will be:

1. Keep the peace and be of good behavior;

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

3. Report to a probation officer within 48 hours of the expiration of the open custody and supervision order and thereafter all times and places as directed by the youth worker;

4. Reside at a residence approved by the probation officer and not change that address without the express permission of the probation officer;

5. Abide by a curfew as set out by the probation officer;

6. Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with Asmaa Sayed, Mohamed Sayed or Walid Sayyed or anyone else named by the youth worker;

7. Do not be within 100 meters of any place where you know Asmaa Sayed, Mohamed Sayed or Walid Sayyed live, work, or go to school;

8. Do not be within 50 meters of Asmaa Sayed, Mohamed Sayed or Walid Sayyed;

9. Attend an educational or vocational program provided by a local school board, or any place of learning, training or recreation approved of by the youth worker and provide proof as required by the youth worker and sign releases to allow the youth worker to confirm your attendance;

   or

   Make reasonable efforts to seek and maintain suitable work approved of by the youth worker and provide proof as required by the youth worker;

10. Do not buy, possess or consume alcohol or other intoxicating substance,

11. Do not buy, possess or consume any illicit substances as defined in the Controlled Drugs and Substances Act except with a lawful prescription,

12. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the youth worker and complete them to the satisfaction of the youth worker for substance abuse, and anything else as set out by the probation officer;

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

14. Perform 30 hours of community service work at the direction and to the satisfaction of your probation officer in the first year of the probation order.

Ancillary Orders

[78] Pursuant to s. 487.051(1) of the Criminal Code, robbery is considered a primary designated offence. The provision of a DNA sample is mandatory. Therefore, I am ordering that J.B. provide a sample of his DNA.

[79] Pursuant to s. 487.051(3) of the Criminal Code, the weapons offence is considered a secondary designated offence. I take into account that J.B. comes before the court with no criminal record and with a heightened privacy interest as a young person. I take into account the very serious nature of these charges. In my view, it is in the best interests of the administration of justice to make the order for DNA. Therefore, I am ordering that J.B. provide a samples of his DNA.

[80] Pursuant to s. 51(1) of the YCJA, a mandatory weapons prohibition order is required for both offences. Accordingly, J.B. is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance. This order commences today and ends two years after J.B. has completed the custodial portion of his sentence.

Released: July 23, 2019

Signed: Justice W Harris Bentley