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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

b) a terrorism offence;

c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: August 1, 2019

Court File No.: Burlington 1211118-0025

Between:

Her Majesty the Queen

— AND —

T.-J.W. and M.R.-M. (YCJA)

Before: Justice P.T. O'Marra

Heard on: July 29, 2019 and August 1, 2019

Reasons for Sentencing released on: August 1, 2019

Counsel

Elise Quinn — counsel for the Crown

Andrew Vaughan — counsel for the young person T.-J.W.

Andrew Morrison — counsel for the young person M.R.-M.

Decision

P.T. O'Marra, J.:

INTRODUCTION

[1] On June 7, 2019 after a lengthy trial, I found both young persons guilty of robbery simpliciter. I dismissed the charge of use of an imitation firearm while committing the indictable offence of robbery. I provided written reasons to convict.

[2] These are my reasons for and my decision in respect of the appropriate sentence for both young persons.

THE OFFENCE

[3] T.-J.W. and M.R.-M. were among a group of individuals that forcefully entered a hotel room in Oakville that was occupied by S.M., an escort, and robbed her of her personal belongings.

[4] I found that both young persons' culpability in the offence was grounded in party liability.

[5] I was satisfied beyond a reasonable doubt of the following facts:

a) On September 28, 2017, an adult, N.B. drove O.M., T.-J.W. and M.R.-M. to the Holiday Inn in Oakville.

b) O.M. arranged to meet S.M. that evening.

c) O.M. entered S.M.'s hotel room. He engaged in sexual intercourse with S.M. for money.

d) T.J.-W. and M.R.-M. left N.B.'s car and attended the second floor of the Holiday Inn. They waited outside of S.M.'s hotel room.

e) Shortly afterwards, O.M. opened the hotel room door and N.B. passed O.M. a handgun. O.M. held the handgun to S.M.'s head and threatened to shoot S.M. if she screamed. N.B., T.J.-W. and M.R.-M ran into the room. They quickly ransacked the room looking for valuable items and fled.

f) As the robbery unfolded, S.M. screamed and O.M. put the handgun into S.M.'s mouth.

g) O.M. took S.M.'s purse, which contained credit cards, identification, cash and her passport.

h) All parties fled in N.B.'s car.

i) S.M. asked the hotel staff to call 911.

j) No property was recovered.

k) S.M. suffered scrapes around her mouth and bruising on both sides of her neck. She was very upset and distraught.

[6] I had reasonable doubt that either T.-J.W. or M.R.-M. were aware that a handgun was going to be used in the robbery, imitation or otherwise. There was no evidence before me that suggested that they had the requisite knowledge that O.M. or N.B. possessed a handgun that evening, and was going to use it, before they rushed into the hotel room.

[7] I now turn to both young persons' background. Both counsels waived the necessity of a pre-disposition report.

T.-J.W.'S BACKGROUND

[8] At the time of the offence T.-J.W. was 17 years old. Today, he is 19 years old. He had no previous youth court record before the date of this offence. After his arrest on November 13, 2017, T.-J. W. was held for seven (7) days pending his bail hearing. He has been on bail for approximately 21 months. He has not been charged with a criminal offence nor has he incurred any breaches while on bail.

[9] Currently, T.-J.W. resides with his mother and two siblings. While this matter was outstanding, T.-J.W. completed his high school diploma. In fact, earlier this year, he quit his job at Purolator to concentrate his efforts on completing his high school education. T.-J.W. is contemplating whether he will attend a post-secondary graduate program or seek employment. He spends a lot time at his uncle's sound studio listening and making music. His mother and grandparents are very supportive. They have attended most of T.-J.W.'s court appearances. He also enjoys immense support, guidance and mentoring from his uncle. His uncle is a victim of gun violence that has left him confined to a wheelchair.

M.R.-M.'S BACKGROUND

[10] On the date of the offence, M.R.-M. was 17 years old. Currently, he is 19 years old. After his arrest, M.R.-M. spent one day in custody and was released on bail. He has spent approximately 21 months on bail. There have been no allegations of any breaches while on bail, and he has not incurred any additional charges. Prior to his arrest M.R.-M. did not have a youth court record.

[11] M.R.-M. comes from a very stable background. He lives with his parents who are very supportive. They have been present throughout these proceedings. His older sister is attending university and his younger sibling is in grade 11. While this matter was outstanding, M.R.-M. completed high school and subsequently, finished his first year at Brock University. He was also a recipient of the Brock Scholars Award. Next month, M.R.-M. will be entering his second year at Brock University.

POSITIONS OF THE PARTIES

[12] Ms. Quinn, on behalf of the Crown, submits that the appropriate disposition for both young persons is a period of closed custody in the upper range of three (3) to six (6) months, followed by eighteen (18) months' probation, an order under section 51 of the YCJA prohibiting the young persons from possessing a weapon for a period of two (2) years and a further order authorizing the taking of samples of bodily substances for the purpose of DNA analysis. In the alternative, if the court does not feel that a closed custody disposition is warranted, the Crown suggests that the court impose a period of deferred custody and a supervision order for the duration of six (6) months pursuant to section 42(5) of the YCJA.

[13] Both counsels for the young persons submit that given the circumstances of the case, the principles of the YCJA and the young persons' personal circumstances, an appropriate disposition is a period of probation with conditions including a community service order. There was no opposition to the ancillary orders sought by the Crown.

THE LAW

[14] According to the YCJA, I must consider all sentencing options that are appropriate in the circumstances. The issue in this case is whether I should impose a custodial disposition.

[15] I must consider section 39(1) of the YCJA. It provides that:

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

(a) the young person has committed a violent offence;

(b) the young person has failed to comply with non-custodial sentences;

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

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

[16] None of the paragraphs (b), (c) or (d) apply. Therefore, I can only sentence the young persons to custody if I find that they committed "violent offence". The definition of "violent offence" is stated as:

(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.

[17] Bill C-10 which came into force on October 23, 2012 amends the Act by clarifying the definition of serious violent offence and added the new definitions of for serious offence and violent offence. In the past, the offence of robbery has been deemed a violent offence. See: R. v. D. (C.), 2005 SCC 78 and R. v. H.W.G., 2003 SKPC 122.

[18] I found that the young persons were parties to the offence of robbery. However, they are equally culpable despite their forms of participation.

[19] The complainant suffered minor injuries in this matter. Beyond scrapes to the right side of her mouth and bruising around her neck area, there was no physical bodily harm inflicted by O.M. However, in my view, the victim suffered bodily harm in a psychological sense that when the handgun was pressed against S.M.'s head and shoved into her mouth, this substantially interfered with her integrity, health and well-being in a way which was more than merely transient and trifling in nature. On the evidence that I have heard, S.M.'s emotional distress on the night of the offence was so significant that it meets this definition.

[20] I also find that the circumstances in this case were similar to the facts in R. v. S.(J.) (2006), 210 C.C.C. (3d), in which the court held that a home invasion was a "violent offence" with the meaning of section 39(1) of the Act. See: R. v. M.A., 2017 ONCA 60 at para. 28. Although the robbery was not committed in S.M.'s residence, for sentencing purposes, in my view the hotel room served as her home that evening, notwithstanding it was also her place of employment. S.M. would and should have expected her hotel room to be a sanctuary for her safety and security.

[21] Since the statutory definition has been established, I am entitled to consider the imposition of a custodial term.

THE SENTENCING PRINCIPLES OF THE ACT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ANALYSIS

[23] The young persons were not the principals involved in the commission of the offence. I concluded that they were parties to the robbery. They aided in the robbery by entering the hotel room and searched for valuable property that they could steal. It would be impossible for either one not to be aware of the fact that S.M. was being forcibly confined as they ransacked the hotel room. However, I am satisfied that they did not steal any property, nor did they participate in S.M.'s confinement.

[24] S.M. was a vulnerable victim. This was a home invasion of sorts. The perpetrators of the offence violated the safety and security of S.M.'s hotel room.

[25] A handgun was used to threaten and intimidate S.M.

[26] S.M. declined to prepare a victim impact statement. However, this was a violent and shocking offence that obviously left S.M. badly shaken and traumatized.

[27] I find as a mitigating factor, however, that both young persons were involved with an adult, N.B. who I am prepared to find had some influence over them. For example, N.B. did not permit the young persons to remain in or around his car before the commission of the robbery. In my view, this lessens their moral culpability. See: M.A., para. 41.

[28] Both young persons have no findings of guilt prior to the imposition of this disposition.

[29] T.-J.W. spent seven (7) days in pretrial custody. M.R.-M. spent one (1) day in custody. Both have been on interim judicial release for a lengthy period of time without incident and have led a pro-social lifestyle.

[30] Both finished their high school education, and M.R.-M. completed his first year at Brock University, while they faced the pressure and uncertainty of these proceedings.

[31] Both young persons have supportive families and live at home, which suggests that there is a reasonable prospect that they can be rehabilitated and reintegrated into society and develop a sense of responsibility.

[32] I have carefully reviewed all the cases contained in the Crown's book of authorities submitted in support of a custodial sentence. I do not propose to review each in detail. However, as the Crown and Defence counsel submitted, each case can be distinguished from this case. The Crown cases involved either the commission of more than one robbery; more gratuitous violence; more victim impact; and previous youth court records of violence.

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

(a) Placing both young persons on probation for two (2) years, with the following conditions:

(i) Keep the peace and be of good behavior.

(ii) Appear before the Youth Justice Court when required to do so.

(iii) Report in person to a youth court worker within two (2) days and after that, at all times and places as directed by the youth court worker or anyone designated by your youth court worker to assist in your supervision.

(iv) Not to associate or communicate with each other, N.B. and O.M. except for court purposes.

(v) Not to contact S.M. directly or indirectly.

(vi) Not to attend the Holiday Inn Oakville (Centre) located at 590 Argus Road, Oakville.

(vii) Take part in counselling for such matters as considered appropriate by their youth worker, and sign such releases, and provide such information as required to evaluate their attendance and participation in, and satisfactory completion of such counselling.

(viii) Either work or attend school.

(ix) Perform 75 hours of community service.

(x) Reside at an address approved by their youth court worker.

[34] There will be an order under section 51 of the YCJA prohibiting the young persons from possessing a weapon for two (2) years. There will also be an order authorizing the taking of samples of bodily substances for the purpose of DNA analysis, robbery is a primary designated offence pursuant to section 457.051 and section 487.04 of the Criminal Code.

Released: August 1, 2019

Justice P.T. O'Marra