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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: 2019-09-27

Court File No.: Central East Region: Oshawa Court 18-Y184408

Between:

Her Majesty the Queen

— AND —

J.N.-F.

Before: Justice Peter C. West

Sentencing Submissions Heard: September 19, 2019

Reasons for Sentence Released: September 27, 2019

Counsel:

• Ms. S. Thompson — counsel for the Crown
• Mr. A. Alibhai — counsel for the young person J.N.-F.

WEST J.:

Introduction

[1] J.N.-F. was convicted on July 18, 2019, with offences arising from a home invasion, which occurred on February 25, 2018, at 77 Church Street in Toronto, where Lawrence Brown, an 80 year old gentleman, was assaulted in his home, tied up, and his wallet and his GMC Envoy, license BNWF601 were stolen.

[2] The charges in respect of the home invasion are:

a. Break and Enter with Intent to commit Indictable Offence;

b. Forcible Confinement;

c. Robbery;

d. Disguise with Intent;

e. Assault Causing Bodily Harm (The Crown conceded during submissions that the original offence of Aggravated Assault was not proven beyond a reasonable doubt on the evidence, I agree with that concession.);

f. Theft of a Motor Vehicle.

[3] The GMC Envoy was recovered by police on February 27, 2018, and was returned to Mr. Brown on February 28, 2018. I found this GMC Envoy was stolen a second time between March 3 and 4, 2018. J.N.-F. was convicted of the theft of this motor vehicle, as well as a charge of fail to comply with a bail condition, namely, house arrest.

[4] J.N.-F. was convicted with the following offences relating to the robbery of Farida Farooq at the Big Bee Convenience store in Hamilton, Ontario on March 4, 2018, as well as disguise with intent and fail to comply with a bail condition, namely, house arrest.

[5] Finally, J.N.-F. was convicted of the robbery of Patel Margesh at the Circle K Convenience store in Whitby, Ontario, on March 5, 2018, as well as disguise with intent and fail to comply with bail condition, namely, house arrest.

[6] A pre-sentence report was ordered and prepared by Fiona Kanhal, Probation Officer, dated September 13, 2019. It was marked as Exhibit 1 on sentence. There is a youth court record, which is referred to in the pre-sentence report and was filed as Exhibit 2 on sentence.

Position of the Parties

[7] On September 19, 2019, the Crown sought a further 6 month sentence made up of 4 more months in secure custody followed by two months of supervision, in addition to pre-trial credit, according to the Crown, of approximately 16.5 months. Consequently, the Crown sought a total 22.5 month custodial sentence less pre-trial credit, to be followed by 13.5 months of probation. Both Crown and defence counsel have calculated the pre-trial custody from October 9, 2018 to September 19, 2019.

[8] The current actual pretrial custody, as of September 27, 2019, is 354 days, which translates on a 1.5 to 1.0 basis as 531 days of pre-trial credit, which is approximately 17.5 months. This would be followed by a period of probation for 384 days, with conditions. Although rehabilitation and reintegration are the primary sentencing principles respecting a young person under the Youth Criminal Justice Act (YCJA), where the offences were "violent offences" a custodial sentence was appropriate and should be imposed in accordance with ss. 39(1)(a) and 42(2)(n).

[9] The defence seeks a sentence of time served having regard to the 354 days of pre-trial custody, which on a 1.5 to 1.0 basis translates to 531 days of pre-trial credit. This would be followed by 1 year and 199 days of probation, which should contain conditions that continue the rehabilitation commenced by J.N.-F. while he has been in detention awaiting his trial. The defence submitted the time spent in custody by J.N.-F. properly addresses the sentencing principles set out in ss. 38 and 39 of the YCJA and there is no need for any further period of custody having regard to the length of pre-trial custody he has already served and the steps he has taken while in detention towards his rehabilitation.

Factual Circumstances

[10] I have set out the facts surrounding the charges I found J.N.-F. guilty in my judgment dated July 18, 2019, and I do not intend to set them out again in any detail. J.N.-F. and another young man pushed their way into Lawrence Brown's home on February 25, 2018, they assaulted him by kicking and punching him in the chest and face and then bound him with plastic zip-ties and duct tape. They stole his GMC Envoy. The GMC Envoy was recovered by police (February 27, 2018) but was stolen a second time by J.N.-F., whose cell phone's GPS indicated the cell phone was at Mr. Brown's residence on March 4, 2018 at 2:56:45 a.m. Further, there were text messages between J.N.-F.'s cell phone and A.P.'s cell phone on March 3, 2018 at 11:35 p.m., discussing their need to get another "whip" (slang for "vehicle") and whether they should check to see whether the "other one," which I found was Mr. Brown's GMC Envoy, was back at Mr. Brown's house.

[11] I found J.N.-F. was a participant in the robbery on March 4, 2018 at 9:45 p.m. of the Big Bee Variety in Hamilton, as a result of J.N.-F.'s DNA could not be excluded as the source of DNA found on a swab taken from a water bottle used to keep open the entrance door. Further, the person who put the water bottle was wearing a black hoody with a distinctive grey rectangle between the shoulders. This same hoody was worn by J.N.-F. when he was arrested on March 6, 2018, in the GMC Envoy, license plate BNWF601, stolen from Mr. Brown's residence originally on February 25, 2018, after the home invasion and for a second time on March 4, 2018. The GMC Envoy BNWF601 was observed two individuals leave the Big Bee Variety with hoodies drawn and masks and sun glasses and could hear clanging of coins and change in bag they were carrying. Finally, the clerk's cell phone was stolen and the daughter of the clerk had installed the app, "Find My Device," which tracked the cell phone to an apartment building at […] in York, which was J.N.-F.'s mother's address where he resided.

[12] I also found J.N.-F. guilty of the offences in connection with a robbery at Circle K Convenience on March 5, 2018. One of the young men involved in this robbery was wearing a black hoody with distinctive grey rectangle between the shoulders on the back. This was the same hoody worn by J.N.-F. when he was arrested in the back seat of the GMC Envoy BNWF601, stolen on two occasions from Mr. Brown's residence. The black hoody worn by J.N.-F. was being worn inside out and the grey rectangle was the brand name. A black iPhone was located in a JANSPORT back pack found in the back seat of the GMC Envoy beside where J.N.-F. was observed to be sitting by the police officer who arrested him. I found this cell phone belonged to J.N.-F. as a result of the items described in my reasons for judgment that clearly identified J.N.-F. as the owner of the iPhone. The other white iPhone found in the front of the GMC Envoy was found to be the cell phone of A.P., who was also arrested fleeing the GMC Envoy, along with A.J. Mr. A.P. and Mr. A.J. were both young persons and were charged with possession of stolen property with J.N.-F. I will discuss these charges later in my reasons for sentence.

Young Person's Circumstances

[13] The PSR paints a picture of a young person whose early upbringing was troubled, and he was exposed to his father's physical abuse of his mother and himself and his older brother. His father was an alcoholic who had little involvement with his children. Mr. N. was eventually deported to his native El Salvador and in December 2013, he was murdered. Apparently, he was a member of the MS-13 gang. J.N.-F. is quite close to his mother, who is an advocate for her son.

[14] CCAS became involved with the family as J.N.-F.'s older brother assaulted him and was removed from the home. J.N.-F. was also in care with CCAS for approximately 15 months, as a result of his own involvement with the police and his mother's inability to control or influence his behaviour. He was in the Hinks-Dellcrest treatment facility in Collingwood for the last six months of care. He was returned to his mother's care in August 2016.

[15] Ms. F. is the sole provider for her family and is currently unemployed and receiving ODSP benefits. They reside in a subsidized apartment in the Weston Road/Lawrence Avenue area, which is not a safe environment. Ms. F. attempted to relocate but her request was denied.

[16] Ms. F. does not approve of her son's peer group when he was living at home but was unable to change who he hung out with. J.N.-F. advised his friends were generally older than he is, 18-22. J.N.-F. indicated he wanted to have a group of positive peers to motivate him to accomplish his goals. He advised his current girlfriend was a good influence on him but he has been in custody since October 8, 2018. J.N.-F. is not involved in any constructive and organized leisure or sporting activities.

[17] He has been using marihuana since he was 12 years old. He was using it daily at the time of the offences. His mother was aware of his marihuana use but could not prevent him from using. J.N.-F. did not believe his marihuana use did not negatively affect him. It was his view his use reduced his stress and increased his focus and calmed him.

[18] His mother described her son as intelligent, funny, outgoing, charming and likeable. His mother described him being bullied in school and in January 2014 he was robbed in a mall. She told the youth worker her son witnessed a stabbing, had a gun pointed to his head and he has been chased by people with guns and his life has been threatened. J.N.-F. described himself as a "hood man," someone who associates with gang members but is not a gang member. He said he was an "advertiser" and gets involved in gang activity but he declined membership although it was offered to him. Some of his friends are G2M gang members.

[19] J.N.-F.'s elementary school history contains 16 suspensions for physical altercations, aggressive behaviour, making threats to staff and opposition to school administrator. Two of the suspensions resulted in an expulsion hearing as they were 20 days in length. He has earned 15 high school credits to date and he has an additional five credits being reviewed to add towards his credit accumulation. During his time in detention, the last 11 months he has attended school.

[20] The PSR reflects that while in detention J.N.-F. has used physical aggression as his problem-solving technique for certain situations. He told the youth worker he believed he had exhausted all other problem-solving techniques before he resorted to physical aggression. Although his times in detention reflect numerous transfers to more secure facilities, which from the PSR relate to his involvement in physical altercations and he is currently facing a charge of assaulting a staff member at Roy McMurtry Youth Centre.

[21] J.N.-F. has a youth court record for Assault Causing Bodily Harm, in 2016, when he was 13 years of age, for which he received a 15 month conditional discharge. In April 2018, he was found guilty of a robbery and was placed on probation for 18 months. On October 11, 2018, he was found guilty of Failure to comply with a recognizance and was placed on probation for 12 months. The PSR reflected J.N.-F. was involved with youth probation from 2015 when he was involved with diversion programs. The PSR reflected that he complied with the terms of probation, when engaging in counselling he was described as cooperative, polite, friendly and respectful. The PSR reflected while on probation he had regular attendance at school but also indicated he did have occurrences where he missed class without justification.

[22] While on probation J.N.-F. has participated with an individual worker from CTI and attended the Manifesting Amazing Dreams during summer 2017. He also completed the Stop Now and Plan (SNAP) to acquire skills for improved decision making. In October 2017, he was referred to Youth Justice Outreach Worker Program (YJOP) facilitated by Central Toronto Youth Services (CTYS). He did not get along with his first worker but was later transferred to Emma Aigbedion, who he established a good working relationship. She worked with J.N.-F. from May 2018 to October 2018. The PSR reflected a very positive report from Ms. Aigbedion in terms of his acceptance of his mistakes and a willingness to do the right thing. The PSR also reflected, however, his being charged with failure to comply with bail conditions. Ms. F. indicated she would support and encourage J.N.-F. to comply with his conditions but he did not listen to her on all occasions.

[23] J.N.-F. told the youth worker he has re-connected with religious practices of Christianity while in detention and intends to continue this once he is back in the community. His future plans involve completing high school, completing a post-secondary program for automotive technician, establishing a career, having a family and living life as a successful member of society by being independent. He indicated a willingness to participate in programming to achieve his goals.

[24] One positive result of his time spent in detention has been his actively attending high school classes. The PSR indicated he currently has 15 credits towards his Ontario Secondary School Diploma and there are an additional 5 credits being reviewed. His counsel provided me with his report card, which reflects 20 completed courses with grades. The final 11 courses have grades between 75 and 89, which certainly demonstrates his ability to succeed when he puts in the effort. He also has completed the required literacy course and 50 hours of community service, as required to graduate from high school. I was also provided a number of Certificates of Completion respecting programs offered at the detention centre: (1) Privilege (July 8, 2019); Assertive vs Aggressive Behaviour Workshop (July 24, 2019); Understanding Social Constructions (August 12, 2019); Self-care (August 26, 2019) and Conflict Resolution (September 9, 2019).

[25] J.N.-F. read a letter he wrote to the court concerning his sentencing where he thanked the Youth Justice System for allowing him the opportunity to effectively rehabilitate himself during his time in detention. He reflects that he is remorseful for his past behaviours and choices he made and believed if he could do things over, he would choose differently. He regretted letting his selfishness take over and putting hard working individuals in jeopardy. He wants to become a better person, wants to continue with his education, holding himself accountable for his actions, respecting those around him and continuing to manage his anger in constructive ways, rather than making poor decisions.

[26] The PSR recommended J.N.-F. become involved with Yorktown Child and Family Centre where he would receive a full continuum of mental health services, which would be individualized based on J.N.-F.'s needs and goals. Unfortunately, J.N.-F. was not prepared to participate in counselling to explore any trauma he has encountered. He already has an individual community outreach worker with Youth Justice Outreach Program with whom he has a good relationship. A case management plan for J.N.-F. could be prepared by his YJOP worker and his probation officer. Central Toronto Youth Services also offers a substance abuse program through ACCESS, which could address J.N.-F.'s marihuana use. Finally, it was suggested J.N.-F. become involved with Fernie Youth Transitional Program, which is an independent living program facilitated through Fernie Youth Services. J.N.-F. has completed the referral form and interview and has been placed on a waiting list. There was no indication in the PSR as to how long the wait would be.

Sentencing in the Youth Criminal Justice Act

[27] The purpose of sentencing under s. 42 of the YCJA, pursuant to s. 38(1) 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."

[28] I requested that I be advised of the outcomes of the adults charged with J.N.-F. on March 6, 2018, however, I have not received any indication of what transpired respecting their charges. I requested this information so that I did not infringe s. 38(2)(a) which provides "the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances."

[29] Sentences in Youth Court must "be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence," s. 38(2)(c); and "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," s. 38(2)(d). In order to comply with s. 38(2)(c), the sentence must (i) be the least restrictive sentence that is capable of achieving the purpose set out in s. 38(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," s. 38(2)(e). Further a youth sentence, subject to s. 38(2)(c), may have the following objectives: (i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences, see s. 38(2)(f).

[30] The Supreme Court of Canada directed in R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941 at paras. 33 and 34 that the principle of general deterrence does not apply to youth sentences:

In the same way, when the statute speaks of "accountability" or requires that "meaningful consequences" be imposed, the language expressly targets the young offender before the court: "ensure that a young person is subject to meaningful consequences" (s. 3(1)(a)(iii)); "accountability that is consistent with the greater dependency of young persons and their reduced level of maturity" (s. 3(1)(b)(ii)); "be meaningful for the individual young person given his or her needs and level of development" (s. 3(1)(c)(iii)). Parliament has made it equally clear in the French version that these principles are offender-centric and not aimed at the general public:…

In my view, the words of the statute can only support the conclusion that Parliament deliberately excluded general deterrence as a factor of youth sentencing.

[31] Although s. 38(2)(f) added the sentencing principles of denunciation and specific deterrence, general deterrence was not added and remains excluded as a factor to be considered during a youth sentencing.

[32] A Youth Court sentencing judge must consider the following factors in determining the appropriate sentence, pursuant to s. 38(3):

(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.

[33] The starting point in any analysis of whether a custodial sentence is an appropriate sentence for a young person is a consideration of s. 39 of the YCJA.

[34] Section 39(1) states:

(1) A youth justice court shall not commit a young person to custody under s. 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 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.

[35] In R. v. S. (J.), [2006] O.J. No. 2654 (C.A.), the Ontario Court of Appeal described a "home invasion" robbery in para. 32 as follows:

The main features of a home invasion include the breaking and entering a dwelling place for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home is being occupied, and using or threatening to use violence. The presence of weapons is often a factor, as is the confinement of the occupants of the home in some fashion.

[36] In S. (J.) the Court of Appeal found that a "home invasion" robbery, opens the gateway to consideration of a custodial sentence because the type of crime that invokes the tag "home invasion" will have embedded in it a "violent offence" within the meaning of s. 39(1).

Victim Impact Statements

[37] Lawrence Brown, who was 80 years old at the time of the home invasion, has subsequently died due to other causes. As a result, he was not available to provide a victim impact statement. There is no doubt a home invasion, which involved gratuitous violence leading to injuries and the subsequent forcible confinement from plastic zip-ties being applied to Mr. Brown's hands and his feet being duck taped, would result in fear and distress being experienced by Mr. Brown. It likely would lead to continuing anxiety and concerns for the future. It is my view these feelings and emotions would be the natural result of such an experience.

[38] The two victims of the convenience store robberies did not provide victim impact statements, however, they both testified to being extremely afraid and distressed by the actions of J.N.-F. Ms. Farooq, the clerk at the Big Bee Variety was clearly upset and distraught by the actions of J.N.-F. and his co-perpetrator. When the two men first went behind the area where the cash register was located, they can be seen pushing Ms. Farooq away from the cash register. The first man, not J.N.-F., can be seen striking her on the left side of her face. Her daughter described her mother having bruising from this assault. She testified she was very scared and panicky during the robbery. Patel, the clerk of the Circle K Convenience testified he was scared and panicked when the two young men came into his store and robbed him, forcing him to sit on the floor. It is my view based on the testimony of these two victims that the conduct of the two individuals who robbed them had a significant and long-lasting impact on the two victims having regard to the violence shown towards each victim.

[39] It is also my view that it was a reasonably foreseeable consequence of the home invasion of Mr. Brown and the two victims of the convenience store robberies that J.N.-F. would know his and his co-perpetrator's conduct would cause physical harm to Mr. Brown and Ms. Farooq and emotional harm to all three victims. It is my view the physical injuries and psychological harm occasioned during these crimes must be considered in determining the nature and quantum of sentence to hold J.N.-F. accountable for his conduct and actions.

Analysis

[40] The decision of whether J.N.-F. should receive a custodial sentence was determined, in part, by the fact J.N.-F. was detained pending his trial. He has spent 354 days in pre-trial custody, which translates to 531 days of pre-trial credit. This is approximately 17 ½ months of pre-trial credit. The only issue remaining is whether he should receive any additional period of custody to be followed by a period of probation or should he receive a time served sentence and be placed on probation or community supervision.

Calculation of Pre-Trial Custody

[41] Both Crown and defence calculated the pre-trial custody from October 9, 2018 until September 27, 2019. It is my view there is another period of pre-trial custody that should be included in determining the actual pre-trial custody served by J.N.-F. in respect of the criminal conduct I have found him guilty.

[42] On the evidence presented at his trial, J.N.-F. was initially arrested on March 7, 2018 for possession over $5000.00 of Lawrence Brown's GMC Envoy license # BNWF601, as a result of his being a passenger in that vehicle when it was stopped by police, as well as four breach of recognizance charges. He did not commence a bail hearing on those charges until April 4, 2018, when he was detained. On May 28, 2018, a bail denovo was held before Justice D.M. Stone when J.N.-F. was released from custody on a $500.00 without deposit surety recognizance. Consequently, J.N.-F. was in detention from March 7, 2018 until his release on a recognizance on May 28, 2018, 83 days. It was during the period from May 28, 2018 until October 9, 2018 that J.N.-F. was actively involved with Emma Aigbedion of the Youth Justice Outreach Worker Program (YJOP) as part of his existing youth sentence probation. This is reflected in the PSR, at p. 7 and 8. I obtained a copy of Information #18-Y18129 from Oshawa Court Records, which jointly charged J.N.-F. and A.P. and A.J., all young persons, with possession of stolen property over $5000.00, which was in respect of Lawrence Brown's GMC Envoy license # BNWF601. On October 9, 2018, J.N.-F. first appeared in custody on Information #18-Y18408, which charged him alone with the offences upon which his trial before me was held. J.N.-F. was held in custody on Information #18-Y18408 pending a bail hearing. No bail hearing was held respecting the charges in Information #18-Y18408.

[43] According to the PSR, at p. 8, J.N.-F. was in detention from March 7, 2018 until May 28, 2018 at Kennedy House, a secure detention facility. Therefore, J.N.-F. spent a further 83 days in pre-trial custody, which translates to 124.5 days of pre-trial credit on a 1.5 to 1.0 basis (s. 719(3.1)).

[44] On October 11, 2018, J.N.-F. appeared before Justice S. MacLean respecting Information #18-Y18129 and he entered a guilty plea to a charge of fail to comply with a recognizance and was placed on probation for 12 months. None of the 83 days of pre-trial custody from March 7, 2018 to May 28, 2018, which on a 1.5 to 1.0 basis translates to 124.5 days of pre-trial credit, was reflected on Information #18-Y18129. Justice MacLean did not take into account any of the pre-trial custody served by J.N.-F. when she imposed a youth sentence of 12 months of probation. The possession over charge relating to Mr. Brown's stolen GMC Envoy was withdrawn by the Crown.

[45] Subsections 719(3) and (3.1) provide:

719 (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

719 (3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [Emphasis added]

726.1 -- In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender.

[46] The issue raised is whether the 83 days of actual pre-trial custody (March 7, 2018 to May 28, 2018) should be added to the pre-trial custody J.N.-F. spent between October 9, 2018 and September 27, 2019. There are a number of decisions from the Ontario Court of Appeal dealing with this issue, commencing with R. v. Reid, [2005] O.J. No. 1790 (C.A.), and R. v. Tsai, [2005] O.J. No. 2574 (C.A.). This was followed by R. v. Wilson, 2008 ONCA 510, [2008] O.J. No. 2512 (C.A.), which held an accused is not permitted to get credit for pre-trial custody on another offence by, in effect, "banking" the pre-trial credit, at para. 43:

If this appellant can use the time he spent serving his drug offence sentence as credit for his robbery sentences, then an accused who years earlier spent time in custody for a prior offence of which he was acquitted should also be able to ask a trial judge to take that prior time into account. I can see no basis in principle for allowing credit in this case, and not giving an accused credit for time spent in custody on a prior offence that was not used up because the accused was acquitted of that prior offence at trial.

[47] The scenarios described by Justice Rosenberg in R. v. Wilson, has no application to the facts in this case where the original Information #18-Y18129, is causally connected to the charges related to the home invasion of Lawrence Brown and the two thefts of his GMC Envoy, which was then used in the two convenience robberies I found J.N.-F. guilty of.

[48] It is my view the 83 days of pre-trial custody should be added to the 354 days of pre-trial custody (from October 9, 2018 to September 27, 2019) and the 124.5 days of pre-trial credit should be added to the 531 days of pre-trial credit (354 days X 1.5). This would mean he has been in actual pre-trial custody of 437 days, which translates to approximately 655 days of pre-trial credit on a 1.5 to 1.0 basis. This is approximately 21.9 months of pre-trial credit, which is very close to the 22.5 months sought by the Crown. I am relying upon the analysis in the Ontario Court of Appeal decision in R. v. Barnett, 2017 ONCA 897, [2017] O.J. No. 6102, at paras. 21-31 dealing with ss. 719(3) and 719(3.1), as well as s. 726.1 of the Criminal Code as it relates to the determination of pre-trial custody credit.

30 What we draw from the case law is that ss. 719(3) and (3.1) require that there be some causal connection, a sufficient link or relation between the offence for which the offender is being sentenced and the pre-sentence custody. That relation or link can exist with more than one offence. It is not limited to the offence that directly triggered the detention, but will include offences that contributed to the denial of bail or, in the trial judge's assessment, factored into the offender's decision to not seek bail on the charges that triggered the detention order.

31 There is no strict rule dictating what constitutes a sufficient link or relationship between the given charge and the pre-sentence custody so as to meet the "as a result of" standard.

[49] See also the recent decision of R. v. Hussain, [2018] O.J. No. 840 (C.A.), at paras. 14-22.

[50] In this case there is a direct causal connection between the original charge of possession of stolen property over $5000.00, which related to Lawrence Brown's GMC Envoy, license # BNWF601 (Information #18-Y18129) and the subsequent break and enter a dwelling house, robbery, forcible confinement and theft over $5000.00, which also related to Lawrence Brown's GMC Envoy, license # BNWF601, robbery of Big Bee Variety, the second theft of Lawrence Brown's GMC Envoy, license # BNWF601 and robbery of Circle K Convenience (Information #18-Y18408). A further connection was that J.N.-F. was released on bail on Information #18-Y18129 on May 28, 2018 but was held in custody when he was arrested on the additional charges set out in Information #18-Y18408. I find therefore that J.N.-F. is entitled to receive additional pre-trial custody credit pursuant to ss. 719(3) and 719(3.1) and R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, of 124.5 days for a total pre-trial custody credit of approximately 655 days. This is approximately 21.9 months of pre-trial custody credit.

Sentence Imposed

[51] It is my view, given the positive steps commenced by J.N.-F. while he was in detention in terms of his attending high school and completing a further 15 credits, as well as completing 50 community service hours, together with the five day-long programs he completed from July to September 2019, a further custodial sentence is not required or necessary to hold J.N.-F. accountable for his criminal conduct and would be contrary to the sentencing principles set out in s. 38 of the YCJA.

[52] Prior to March 7, 2018, according to the PSR, J.N.-F. never spent more than two to four days in pre-trial custody. As a result of the charges I found him guilty of on July 17, 2019, he has served the equivalent of a 21.9 month custodial sentence. This is a significant sentence for a young person who has never received a prior jail sentence. I have no doubt this length of time in custody has demonstrated to J.N.-F. the serious and meaningful consequences that flow from the commission of a home invasion and two robberies of convenience stores. Mr. N.-F.'s comments to me after submissions were made by counsel and the letter he read in court, as well as the PSR, reflect a young person who has learned valuable lessons and who has made meaningful and potential life-altering decisions to change his behaviour and be successful in achieving his goals.

[53] A realistic alternative to a further period of incarceration is a very structured probation order with restrictive terms, which will promote J.N.-F.'s rehabilitation and reintegration into society. In my view further incarceration will detrimentally and adversely impact the positive steps he has already begun to take while in detention. J.N.-F.'s letter reveals insight and awareness on his part as to the harm he caused to the victims of his violent behaviour and conduct.

[54] The PSR reflected J.N.-F. had been impacted positively by his previous probation orders, particularly his attendance at school and his involvement with Emma Aigbedion, his Youth Justice Outreach Worker with Central Toronto Youth Services (CTYS). A term of probation requiring his continued involvement with this worker or her designate and Youth Justice Outreach programs will continue to support and encourage his decision to change his behaviour in the future and achieve his goals, which in my view will contribute to the long-term protection of the public.

[55] I acknowledge there are still areas of concern reflected in the PSR – whether J.N.-F. will listen to and follow the advice and counsel of his mother, with whom he has a good relationship, is an unknown given his past track record, however, it is my view the almost 22 months of pre-trial credit has had a positive impact on J.N.-F.'s attitudes and future decisions and his continued involvement with Youth Justice Outreach programs, his outreach worker and his probation officer will result in further positive changes.

[56] It is my view J.N.-F.'s beliefs concerning his daily use of marihuana are misguided and ill-informed, however, this can be overcome through a counselling term while he is on probation.

[57] I am also of the view there needs to be a strict curfew for J.N.-F., as these offences were all committed during the evening and early morning hours.

[58] Consequently, I am placing J.N.-F. on probation for 14 months. The pre-trial credit of 21.9 months will be reflected as part of this sentence on Information #18-Y18408.

[59] The probation order will contain the following terms and conditions:

(a) Keep the peace and be of good behaviour;

(b) Report to the Youth Justice Court as required;

(c) Report in person to a youth worker within five (5) working days from your release from custody and after that, at all times and places as directed by the youth worker;

(d) Live at a place approved of by the youth worker and not to move from that address without the prior permission of your youth worker;

(e) Obey a curfew and be in your place of residence or on the property of your residence between the hours of 8 p.m. to 7 a.m. daily except:

• While in the direct company of your mother or your grandmother;
• While in the direct company of an adult approved of in advance in writing by your youth worker;
• For any medical emergency involving you or any member of your immediate family, written justification is to be provided to your youth worker within 72 hours of any such absence during curfew hours;
• While travelling directly to, directly from and while attending at a place of employment that has been approved of by your youth worker;
• While travelling directly to, directly from and while attending at a place of educational, vocational, counseling or treatment programs that have been approved of by your youth worker;
• While travelling directly to, directly from and while attending at a place that has been approved of by your youth worker to complete your community service hours; and
• With the prior dated written approval of your probation officer to be carried with you at all times while out of your residence during curfew hours

(f) Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by the youth worker including but not limited to all programs recommended by the Central Toronto Youth Services (CTYS) Youth Justice Outreach Program (YJOP), continue counselling with Emma Aigbedion, if possible, or another outreach worker; substance abuse (marihuana); anger management or any other reason deemed appropriate by the youth worker;

(g) You shall sign any release of information forms to enable the youth worker to monitor your attendance at and completion of any assessment, counselling, or rehabilitative programs;

(h) Do not associate or communicate in any way directly or indirectly with A.P. or A.J.;

(i) Remain away 100 metres from any place where you know A.P. and A.J. live, work, go to school or any place you know them to be;

(j) Do not associate or communicate in any way directly or indirectly with Hannah Farooq and Margesh Patel except to write detailed letters of apology to each of the victims. These apology letters are to be approved by the youth worker, who will inquire of the victims whether they wish to receive them. The letters of apology are to be completed within two months of the start date of this probation order;

(k) Remain away 100 metres from any place where you know Hannah Farooq and Margesh Patel live, work, go to school or any place you know them to be;

(l) Remain away 100 metres from Big Bee Variety store, 4 Newton Avenue, Hamilton, Ontario and Circle K Convenience store, 1-200 Carnwith Drive E, Whitby, Ontario;

(m) Attend a high school educational and/or vocational program approved of by the youth worker and complete them to the satisfaction of the youth worker;

(n) Do not possess any weapon(s) as defined by the Criminal Code;

(o) You shall perform 100 hours of community service work. The work is to start no later than 60 days from the start date of this order and shall be completed at a rate determined by your youth worker. You shall complete the work as directed by and to the satisfaction of the youth worker.

(p) You are to attend before Justice West on December 17, 2019, at 2:15 p.m. with a brief update from your youth worker reflecting your enrollment in school, counselling which has been commenced or arranged, whether your involvement with Central Toronto Youth Services (CTYS) Youth Justice Outreach Program (YJOP) has been re-established and a copy of your letters of apology. Finally, the report is to also address expected timelines respecting the Fernie Youth Transitional Program and J.N.-F.'s involvement.

[60] There will also be the following ancillary orders:

(a) A DNA order pursuant to s. 487.04 as primary designated offences of Break and Enter Dwelling House, Forcible Confinement, Assault Causing Bodily Harm, and Robbery x3.

(b) Mandatory weapons prohibition order for a period of 2 years pursuant to subsection 51(1) of the YCJA.

Released September 27, 2019

Signed: Justice Peter C. West