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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: October 10, 2019
Court File No.: Brampton 19-Y345-00
Between:
Her Majesty the Queen
— and —
M.A.-O., a young person
Before: Justice P. T. O'Marra
Heard on: September 13 and October 3, 2019
Reasons for Judgment on Sentence released on: October 10, 2019
Counsel
Amy Mountjoy — counsel for the Crown
Norman Ronka — counsel for the accused M.A.-O.
Judgment
P. T. O'Marra, J.:
Introduction
[1] On September 13, 2019, M.A.-O. pled guilty to robbery with a firearm, contrary to section 344(1)(a) of the Criminal Code of Canada. I ordered a Pre-Sentence Report and adjourned sentencing submissions to October 3, 2019. After hearing submissions, I reserved my judgement on sentence, and adjourned the matter to October 10, 2019 (today).
[2] These are my reasons for and my decision in respect of the appropriate sentence for this young person.
The Offence
[3] The facts that supported the guilty plea are as follows:
On March 25, 2019, the victim, Joshua Chambers, was working at the Starlight Aromatherapy Studio located at 157 Queen Street in the City of Brampton. The studio was also acting as an unlicensed marijuana dispensary.
Shortly after 7:00 pm, an individual entered the studio and began asking Mr. Chambers questions about obtaining marijuana. After a brief discussion, the suspect left.
At approximately 7:23 pm, four individuals, including M.A.-O. and an individual the Crown alleges was K.O., entered the studio and began asking questions regarding how to obtain marijuana. Mr. Chambers instructed them that they would require copies of their driver's licences prior to purchasing.
The four individuals left the studio without providing any identification or purchasing any marijuana, but they returned a short time later.
At approximately 7:40 pm, the four individuals, including M.A.-O. and the person believed to be K.O., returned to the studio and gained entry to the front hall/foyer area.
While still in the front hall/foyer area, the person alleged to be K.O. produced a silver firearm and began pointing it at an employee who had gone to greet them.
Shortly thereafter, Mr. Chambers got up from the front desk in the studio and attended the hallway to confront them.
M.A.-O. and another individual went past Mr. Chambers to attend upstairs where the marijuana and cash were kept. The person believed to be K.O. (still armed with the silver firearm) and another individual remained on the main level and attempted to prevent Mr. Chambers from interfering.
The individual who attended upstairs with M.A.-O. was also armed with a firearm which is visible on video surveillance.
Prior to any cash or marijuana being obtained by the individuals upstairs, Mr. Chambers advanced towards the person believed to be K.O. in the front hall/foyer. It is at this time that he fired the gun at Mr. Chambers, striking him in the leg.
The shooter and the other individual in the front foyer fled the studio and Mr. Chambers gave chase.
Upon hearing the gunshot, M.A.-O. and the other individual who were upstairs came downstairs and fled the studio as well.
All parties fled in a nearby black Toyota Camry which was being operated by the individual who first came into the studio earlier in the evening.
Emergency services were notified, and Mr. Chambers was transported to Brampton Civic Hospital to be treated for a gunshot wound to the leg.
A search warrant was conducted on March 26, 2019 at Starlight Aromatherapy where both the video surveillance of the shooting and the marijuana were seized by police.
Initially, Mr. Chambers did not provide police with a statement, but he eventually did so on March 28, 2019.
Mr. Chambers suffered a gunshot wound to the left thigh. As of the date Mr. Chambers provided his statement, the bullet had not been removed from his leg.
M.A.-O. knew that a firearm(s) was present at the robbery.
M.A.-O. was identified as being involved in the robbery due to a crime alert being issued by Peel Regional Police that came to the attention of Toronto Police Services officers who were familiar with him from prior occurrence(s).
M.A.-O. was arrested on April 23, 2019 in Toronto. Upon his arrest, M.A.-O. was wearing black Air Jordan shoes, like the ones he wore during the robbery.
On April 23, 2019, M.A.-O. provided a videotaped statement to the Peel Regional Police admitting his involvement in the robbery of the Starlight Aromatherapy on March 25, 2019. M.A.-O. also acknowledged K.O. as the shooter when confronted by police with that information.
Victim Impact Statement
[4] Attempts were made to obtain a victim impact statement from Mr. Chambers. However, those attempts were unsuccessful. Nevertheless, Mr. Chambers was wounded in the leg during the robbery. It is evident that he was significantly affected by this offence. It would be trite to comment otherwise.
M.A.-O.'s Background and Circumstances
[5] A Pre-Sentence Report was ordered which, in my view, was very positive. M.A.-O. is 17 years old who has lived with both parents and his 24-year-old brother. He does not have a previous youth court record. However, on October 9, 2018 he received Extra Judicial Sanctions (EJS) for the offence of Robbery. On the same day, he received Enhanced Extrajudicial Sanctions (EEJS) for the offences of Uttering a Death Threat and Robbery with a weapon. M.A.-O. successfully completed the assigned sanctions while in detention at Cuthbert House.
[6] He grew up in the Jane and Finch area in the City of Toronto. Originally, his parents came to Canada in 1988 from Ghana. They have a close-loving relationship and have been together for a very long time. Both are employed full time. The eldest son attends Seneca College. M.A.-O. comes from a close-knit family that attends the Church of Pentecost.
[7] M.A.-O. has always had a positive relationship with his parents. His father and M.A.-O. have a strong and positive bond. They often watch soccer games together and hang out. His father described M.A.-O. as "funny, polite and a well-mannered young man". His mother has a loving relationship with M.A.-O. Both parents conveyed that M.A.-O. was always an easy-going child while growing up and never acted out or was involved in any deviant behaviour within the household. His parents confirmed that M.A.-O. has a close relationship with his older brother who often lectured him on his behaviour.
[8] Generally, M.A.-O. follows the rules of the household. He usually keeps his room tidy, vacuums, and returns home at an appropriate hour in the evening.
[9] It seems that M.A.-O.'s problems may come from the fact that he has very few pro-social peers in his life. Most of M.A.-O.'s friends leading up to this offence conflicted with the criminal justice system. His parents believe that his friends have had a negative and detrimental effect on their son and feel that M.A.-O. would not be in his current situation but for his negative peer group that he has chosen.
[10] M.A.-O. does not use alcohol; however, he has developed a marijuana habit. He smokes marijuana 2-3 times a day.
[11] Before being ordered detained in custody on this charge, M.A.-O. was attending a Collegiate Institute and is currently in grade eleven (11). At the time of his arrest, M.A.-O. had twelve (12) credits towards his OSSD. While he has been at Cuthbert House, M.A.-O. has earned an additional three (3) credits through Secondary School. M.A.-O. indicated that his goal is to earn his high school diploma and one day apply to attend an automotive college.
[12] M.A.-O.'s prime worker from Cuthbert House confirmed that M.A.-O. has accepted most of the programming that was offered to him. He has participated in the Yes Employment Services (YES) program offered through the YMCA. He regularly attends group sessions when a worker from the Central Toronto Youth Services (CTYS) attends the facility. M.A.-O. meets with a counsellor from Family Guidance International (FGI) through Morneau Shepell for counselling sessions. M.A.-O. regularly attends the Chaplaincy program. His prime worker states that M.A.-O. has "progressed well and continues to be engaged". In fact, M.A.-O. has taken on a leadership role by encouraging his peers to attend group sessions.
[13] While at Cuthbert House for approximately 5½ months, M.A.-O. has received six (6) negative behaviour reports and four (4) positive behaviour reports. However, since June he has not received any negative behaviour or serious concern reports.
[14] M.A.-O. has expressed empathy and concern about the victim and has indicated to others that he wishes that he could apologize to the victim. He acknowledges his actions and the wrongfulness of his actions.
[15] With respect to M.A.-O.'s future, as already mentioned, he wishes to complete his high school education. Also, he wants to avoid his negative peer group and avoid any risky situations. He will seek part-time employment. He wants to join a club either through school or a community centre to fill all his unstructured time, which he admits led him into his current troubles.
[16] Amanda Nichol, the writer of the PSR, feels that M.A.-O. does require additional support in his life to address potential underlying causes of his behavior. M.A.-O. should be referred to continued support from CTYS that are able to offer M.A.-O. individualized programming and counselling through the Youth Justice Outreach Program. The program allows a trained counsellor to meet M.A.-O. in the community and discuss various aspects of his life while supporting identified goals or areas of concern. This program can address his substance abuse while educating him on harm reduction. Ms. Nichol recommends, as well, that M.A.-O. be referred to the support program of the Canadian Training Institute (CTI) to assist M.A.-O. with regulating his emotions, controlling his impulses and educating him on the importance of having a positive and pro-social peer group. Finally, Ms. Nichol recommends that M.A.-O. should be linked to the Toronto Youth Partnerships and Employment (TYPE) program which is designed to support youth in Toronto who are facing challenges in their life. A youth outreach counsellor will help develop an action plan for M.A.-O. and connect him to employment services, skill development and educational programs.
Crown's Position
[17] Ms. Mountjoy, on behalf of the Crown, submits that the appropriate disposition for M.A.-O. is a period of custody and a supervision order in the range of twelve (12) to fifteen (15) months less his pretrial custody, followed by two (2) years' probation, an order under section 51 of the YCJA prohibiting M.A.-O. from possessing a weapon for a period of ten (10) years, and a further order authorizing the taking of samples of bodily substances for the purpose of DNA analysis.
[18] The Crown forcefully submitted that the circumstances of the offence demand a denunciatory sentence of custody to achieve a meaningful consequence.
The Defence Position
[19] Mr. Ronka, on behalf of M.A.-O., submits that the young person should be sentenced to the time that he has spent in custody which is 171 days, which on a 1 to 1.5 days credit is the equivalent of 257 days or approximately 8½ months. Mr. Ronka agrees that two (2) years' probation is appropriate in the circumstances. He takes no issue with the ancillary orders sought by the Crown.
Guiding Principles in the YCJA
[20] These principles in section 3 inform the purposes of sentencing youths that are detailed in section 38 of the Youth Criminal Justice Act:
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:
(a) 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;
(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;
(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;
(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, 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.
[21] 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 further custodial disposition. I must consider section 39 of the YCJA. It provides that:
(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.
[22] Neither of paragraphs (b) or (d) apply. Therefore, I can only sentence the young person to custody if there has been a history that indicates a pattern of extrajudicial sanctions or if I find that he committed a "violent offence".
[23] In my view, there has been a history that indicates a pattern of violent behaviour. M.A.-O. has been sanctioned for two robberies that an adult would be liable to life imprisonment.
[24] 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.
[25] Bill C-10 which came into force on October 23, 2012 amended the Act by clarifying the definition of serious violent offence and added the new definitions 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 (S.C.C.) and R. v. H.W.G., 2003 SKPC 122.
[26] M.A.-O. was a party to the offence of robbery with the use of a handgun. However, he is equally culpable despite his various forms of participation.
[27] I am bound to consider all reasonable alternatives to custody before incarcerating a young person. Parliament has set out the following factors in section 38(2):
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.
[28] I acknowledge that I must also consider parity of sentencing and whether the alternatives to custody, or custody, have been used in respect of young persons for similar offences committed in similar circumstances.
The Case Law
[29] The Crown provided three (3) decisions to support the position that a significant custodial sentence is called for considering the serious nature of this offence. These cases are instructive in highlighting important principles of sentencing in robberies and weapons. However, I did not find that all the cases aided me with determining the appropriate sentence as some were factually distinguishable.
[30] In R. v. J.S., [2006] O.J. No. 2654, the Court of Appeal dismissed the conviction appeal but allowed the sentence appeal and varied the sentence to 15 months' custody and community supervision. In this case, the trial judge imposed a sentence of two years' closed custody in addition to the 44 days of pre-trial custody. A distinguishing feature to the case here is that there was no guilty plea. The young person was convicted of a violent home invasion committed with a group of youths. The court called a home invasion style robbery a "horrendous crime". In this case, a shotgun was used by another person, but the young person was in possession of a machete, looked for property to steal and ushered the victims downstairs where the person with the shotgun was present. When assessing the appropriateness of the sentence, the Court of Appeal noted at para 48 that "the defence at trial did not put forward any alternatives to a custodial sentence". (See: R. v. K.H., 2019 ONCJ 525, 2019 O.J. No. 3795 para. 53)
[31] In R. v. H.S., [2014] O.J. No. 5032, the Court of Appeal dismissed the sentence appeal and upheld the sentence imposed after trial of six (6) months closed custody followed by three (3) months open supervision. A 16-year-old was convicted of armed robbery and possession of a weapon for the purpose of a robbery. The young person drove the car that his co-accused robbed the complainant at gunpoint, that both exited from prior to and entered after the offence. The gun used was found inside the youth's car and the operating manual was found on his person upon his arrest. There was no guilty plea in this matter. In upholding the sentence, the Court of Appeal noted at para. 10 that the sentence was "arguably on the higher end of the sentencing range in similar cases…"
[32] The decision in R. v. J.O., [2009] O.J. No. 2041, was after a guilty plea. The 16-year-old was the getaway driver of a bank robbery. The other culprits entered the bank armed with a hand gun and a steak knife. The youth remained in the car and never entered the bank. The customers were threatened and assaulted with kicks. The youth did not have a previous record. His limited role, early guilty plea, his lack of a prior record and his age, were mitigating factors. The court imposed a sentence that reflected credit of 108 days (3½ months) for the 72 days spent in detention. The court felt that the aggravating and mitigating factors, and the circumstances of the youth, the imposition of a global sentence in the range of 5 to 6 months was appropriate. A further 60 days was imposed to be served as 40 days secure and followed by 20 days under community supervision, followed by 18 months' probation. The facts are less serious than the case at bar. The youth never entered the bank, unlike the active role that M.A.-O. played in the robbery. However, unlike M.A.-O., J.O. made no effort to rehabilitate while on release. Furthermore, he showed a complete disregard for his need to comply with the terms of his release to the point that his own mother sought breach charges and detention out of concern for peer associations. J.O. demonstrated a complete lack of remorse and was considered a "high risk to re-offend". (See: J.O., para. 16)
[33] Mr. Ronka reminded me of my decision in R. v. T.-J.W. and M.R.M., [2019] ONCJ 555. This sentencing decision was after a very long trial that also involved a third co-accused, O.M. In that case, three young persons and an adult robbed an escort of her personal belongings. The robbery was akin to a home invasion, as the robbery took place in the victim's hotel room. I found as a fact that both youths were unaware that the third youth was in possession of a handgun moments before the robbery. There was no evidence of planning or deliberating by both youths. They entered the hotel room after being let in by the third youth. They ransacked the room looking for valuables. The third youth pressed the gun to the victim's head, threatened to shoot her, and shoved the gun down her throat. Due to their limited roles, steps taken to rehabilitate, finishing high school while facing the charges, and supportive families, I placed both youths on probation. The Crown in that case sought a closed custody sentence in the range of three (3) to six (6) months. Due to his past youth court record, additional convictions in addition to the robbery, and his shocking violent behavior, on September 27, 2019, I sentenced O.M. to the equivalent of a nine (9) month custodial sentence which he had already served due to his pre-trial custody followed by two years' probation.
[34] In R. v. K.H., 2019 ONCJ 525, Justice B.M. Green imposed a non-custodial sentence of 24 months' probation for a youth convicted of robbing a convenient store and a Subway restaurant armed with a loaded shotgun. Justice Green imposed a sentence that was unprecedented by emphasizing an alternative to custody with the assistance of the Intensive Support and Supervision Program (ISSP). Justice Green commented on the rarity of this kind of disposition for such a serious crime at para. 55:
I do not have any sentencing precedent wherein a young person committed robberies of vulnerable store clerks while armed with a loaded handgun and received a non-custodial sentence. Considering the individualized nature of each sentencing hearing, it is challenging to achieve proportionality or parity. Nevertheless, I found the following decisions to be instructive:
R. v. J.S., [2009] O.J. No. 4842 at paras 1, 4 and 5 (C.A.):
This was a serious crime. The respondent and an accomplice robbed the lone operator of a convenience store late at night. They both wore masks and black clothes. The respondent threatened the store clerk with an imitation firearm, while his companion was in possession of a knife. The youth court justice's disposition of 12 months' probation failed to recognize the seriousness of this offence. It also failed to properly address the requirement that the respondent be held accountable for his actions and that meaningful consequences for the respondent flow from the sentence imposed. As a result, the youth court justice erred in principle and her disposition was unfit.
The Court of Appeal granted the appeal with respect to the sentence of one year of probation but went on to find that:
Crimes of this nature normally call for a significant custodial term. However, the record establishes that the respondent is committed to and has made exceptional rehabilitative progress during the nine months since his sentencing hearing. Throughout, he has enjoyed the steadfast support of his father, who again attended court today with the respondent. In our view, the respondent is fortunate to have that support, which undoubtedly has contributed positively to the turnaround in the respondent's life. The respondent's rehabilitative transformation, the extent of which the Crown did not challenge in this court, merits significant consideration in mitigation.
In all these circumstances, the Crown responsibly proposes that the probationary disposition imposed by the youth court justice be set aside and that a disposition of three months' deferred custody, followed by one-year probation, be substituted in its stead. We regard this proposal as eminently reasonable and fit on the facts of this case.
R. v. H.A.H., [2018] O.J. No. 635 at para 32 (O.C.J.):
A youth was convicted after trial of possessing a loaded prohibited firearm in a motor vehicle.
Given the sentencing policy dictated by the YCJA, however, the default position is not to assume that serious offences like the ones committed by H.A.H. necessarily warrant a custodial sentence. The opposite is true. As Rosenberg J.A. explained, the statute has in fact enacted a prohibition against making such a leap, regardless of whether one might have justifiably expected a jail term for an adult offender who committed the same offences. General deterrence, to repeat it, is not to be taken into account here.
[35] This is a serious offence in which the facts are alarming. An innocent clerk in a marijuana dispensary was shot in the leg. M.A.-O. was involved in the reconnaissance of the dispensary. He entered the dispensary and attended the second floor where the cash was stored. The facts are serious but not so aggravating that anything less than a further custodial disposition will fail to protect society and adequately denounce his conduct.
[36] M.A.-O. has reached a cross road in his life, whereby he can choose to return to his negative peer group, shun society's values and norms, and return to a life of crime and disappointment or he can continue down the path of education and counselling. He is a young person that can turn his life around, despite being a young black teenager growing up in a high crime area of Toronto. In R. v. Jackson, 2018 ONSC 2527, [2018] O.J. No. 2136 (S.C.J.), Justice Nakatsuru eloquently stated:
About making change, let me quote Dr. Martin Luther King Jr.: "Take the first step in faith. You don't have to see the whole staircase, just take the first step."
So it is with sentencing Mr. Jamaal Jackson, a Black man. Too many African Canadians are serving time in jail. Something more needs to be done. In this case, I hope to take a small step in changing that.
He went on to observe at para. 143 that:
The problem of the over-jailing of African Canadians starts with young people. How they come into the criminal justice system. How we treat them. The Honourable Roy McMurtry and Dr. Curling connected racism to an over-representation of young Blacks in the criminal justice system:
"...it is apparent to us that all of the immediate risk factors for violence involving youth can easily arise from the diminished sense of worth that results from being subject to racism, and from the often-accurate inference of what that racism means for the hopes of advancing, prospering and having a fair chance in our society. When, as is so often the case, racism is combined with poverty and other sources of serious disadvantage...its central role in the issue that concerns us is all too evident."
[37] I adopt the insightful and inspiring words of Justice Green at para. 60 as they pertain to the hope of change:
Change must start somewhere. It starts with a fair and compassionate justice system that recognizes that sometimes incarceration is counter-productive and may not result in a just sentence. A number of jurists have taken steps to ameliorate the over representation of young black people in custody by exploring creative alternatives to lengthy periods of incarceration. Justice Nakatsuru commenced his judgement with the sage words of Dr. Martin Luther King. Dr. King also said that "injustice anywhere is a threat to justice everywhere". The injustice of the continued overrepresentation of young black people in custody is a threat to our fundamental notions of an equitable justice system.
[38] M.A.-O. has already spent 171 days in custody for his offence. In my view, that is enough. He has spent more time in custody than the remorseless getaway offender in the J.O. decision and slightly less than the getaway driver in the H.S. decision. As I said before, the offender in J.S. was armed with a machete during a home invasion. His lengthy custodial sentence was imposed after a finding of guilt after a trial. These aggravating factors are not present in the case at bar.
[39] Finally, a youth court judge is not functus after the imposition of a sentence. I have the ability to monitor M.A.-O.'s progress after the passing of a non-custodial sentence. Section 59(1) of the YCJA allows for reviews of sentences that do not involve custody:
Review of Youth Sentences Not Involving Custody
59 (1) When a youth justice court has imposed a youth sentence in respect of a young person, other than a youth sentence under paragraph 42(2)(n), (o), (q) or (r), the youth justice court shall, on the application of the young person, the young person's parent, the Attorney General or the provincial director, made at any time after six months after the date of the youth sentence or, with leave of a youth justice court judge, at any earlier time, review the youth sentence if the court is satisfied that there are grounds for a review under subsection (2).
Grounds for Review
(2) A review of a youth sentence may be made under this section:
(a) on the ground that the circumstances that led to the youth sentence have changed materially;
(b) on the ground that the young person in respect of whom the review is to be made is unable to comply with or is experiencing serious difficulty in complying with the terms of the youth sentence;
(c) on the ground that the young person in respect of whom the review is to be made has contravened a condition of an order made under paragraph 42(2)(k) or (l) without reasonable excuse;
(d) on the ground that the terms of the youth sentence are adversely affecting the opportunities available to the young person to obtain services, education or employment; or
(e) on any other ground that the youth justice court considers appropriate.
Progress Report
(3) The youth justice court may, before reviewing under this section a youth sentence imposed in respect of a young person, require the provincial director to cause to be prepared, and to submit to the youth justice court, a progress report on the performance of the young person since the youth sentence took effect.
[40] I am ordering that M.A.-O. appear in front of me in two (2) months for a review with a progress report, in order to assess his compliance with the terms of his probation order. If M.A.-O. is doing well, I will vary his probation order. This is an incentive for M.A.-O. to continue his rehabilitation. If he chooses to not follow the correct path and return to his negative peer group, then the restrictions will continue to protect society and hold M.A.-O. accountable.
The Appropriate Sentence
[41] I am persuaded that a further period of custody is neither necessary nor appropriate in these circumstances. His 171 days in detention will be credited as having served the equivalent of 257 days or in excess of 8½ months. In my view, in consideration of the aggravating and mitigating factors, and the circumstances of M.A.-O., this is within the higher end of the range given the plea. M.A.-O. will be sentenced to two (2) years probation with the following conditions:
(1) Keep the peace and be of good behavior;
(2) Appear before the Youth Justice Court when required to do so.
(3) Report in person to a youth worker immediately and after that, at all times and places as directed by the youth worker.
(4) 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;
(5) 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, father or your brother.
- for any medical emergency involving you or any member of your immediate family if written justification is 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; or
- 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.
(6) Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by the youth worker including but not limited to all the programs recommended in the Pre-Sentence Report, and complete them to the satisfaction of the youth worker;
(7) 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;
(8) Do not associate or communicate in any way directly or indirectly with K.O. except through legal counsel;
(9) Do not associate or communicate with anyone that you know has a youth court or adult criminal record;
(10) Do not contact, directly or indirectly, Joshua Chambers;
(11) Do not attend any place that you know Joshua Chambers to be;
(12) Attend an educational and/or vocational program approved of by the youth worker and complete them to the satisfaction of the youth worker;
(13) Make reasonable efforts to seek and maintain suitable work approved of by the youth worker unless your youth worker determines that it would not be feasible considering the counseling and treatment programs;
(14) Do not possess any weapon(s) as defined by the Criminal Code;
(15) Do not buy, possess or consume any marijuana.
[42] There will be an order under section 51 of the YCJA prohibiting M.A.-O. from possessing any weapons for a period of ten (10) years. There will also be an order authorizing the taking of samples of bodily substances for the purpose of DNA analysis, as robbery with the use of a firearm is a primary designated offence pursuant to section 457.051 and section 487.04 of the Criminal Code.
Released: October 10, 2019
Justice P. T. O'Marra