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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: 2019-10-31

Court File No.: Toronto 19-Y190106

Between:

Her Majesty the Queen

— AND —

H.M., a young person

Before: Justice Alex Finlayson

Trial Heard on: February 19, 20, March 1 and 19, 2019

Reasons for Judgment released on: June 5, 2019

Submissions Regarding Sentencing Heard on: September 30, 2019

Reasons Regarding Sentencing released on: October 31, 2019

Counsel:

Ed Stimec — counsel for the Crown

Luka Rados — counsel for the accused H.M.

ALEX FINLAYSON J.:

PART I: NATURE OF THIS RULING

[1] H.M. was charged with 16 firearms and drug-related offences. I presided over a trial in this matter during four days in February and March 2019. On June 5, 2019, I released the Judgment respecting that trial. See R. v. H.M., 2019 ONCJ 383.

[2] In that Judgment, I made a number of findings of fact, I heard and disposed of H.M.'s application pursuant to section 24(2) of the Charter to exclude evidence, and I found H.M. guilty of four of the charges. I will provide a brief summary of that ruling.

[3] I found that on June 14, 2018, H.M. and three other males were taken out of a car parked in the garage at 200 Wellesley Street East, by way of a "high risk takedown" initiated by certain police officers, placed under arrest and then searched. There was also a search of the car. The police found H.M. with a loaded firearm tucked into the waist band of his pants. The police also found a second handgun in the car, a number of bullets, some cash, drugs and related paraphernalia, either in the car or on the person of the other males. Two days later, after the police obtained a warrant and performed a further search of the car, they found additional contraband.

[4] H.M. launched an application pursuant to sections 8, 9, 10(a) and (b) and 24(2) of the Charter, asking the Court to exclude the firearms and the contraband from the evidence. The Charter application proceeded as a blended hearing with the trial proper. The Crown conceded that H.M.'s section 8 and 9 Charter rights had been violated, but argued that the evidence ought not be excluded. The Crown did not concede a section 10 violation. H.M. abandoned arguments about section 10 breaches at the trial.

[5] I found that H.M.'s section 8 and 9 Charter rights had been violated and that certain evidence had been obtained in a manner that infringed or denied H.M.'s section 8 and 9 Charter rights. But pursuant to my analysis of the factors in R. v. Grant, 2009 SCC 32, I determined that the evidence would not be excluded.

[6] However, in the recently released decision of R. v. Omar, 2019 SCC 32, the majority of the Supreme Court said, "[i]t may be that consideration should be given to the availability, under s. 24(1) of the Canadian Charter of Rights and Freedoms, of remedies other than exclusion of the evidence when dealing with s. 24(2), but the majority would leave this question for another day". Relying on this and certain other decisions, H.M. seeks a sentence reduction.

[7] At the outset of the sentencing hearing on September 30, 2019, the Crown and the defence agreed that the finding of guilt for the count respecting section 91(1) of the Criminal Code should be stayed pursuant to the principles in R. v. Kienapple. I granted the stay on that date.

[8] The Crown's position is that H.M. should receive a custodial sentence of 9 to 12 months, followed by one year of probation with various terms.

[9] The defence's principal position is that H.M. should receive an absolute discharge. If the Court is inclined to order a conditional discharge instead, then H.M. submits that terms should be imposed similar to those suggested by the Crown during H.M.'s period of probation according to its position. H.M.'s request for a discharge rests in large part on section 24(1) of the Charter. Counsel for the Crown and the defence disagree as to whether H.M. should receive any credit for time that restrictions were placed on H.M. prior to this sentence.

PART II: APPLICABLE LEGAL PRINCIPLES

A. General Principles and Canada's Policy With Respect to Young Persons

[10] As Abella J. said in R. v. D.B., 2008 SCC 25, "[y]oung people who commit crimes have historically been treated separately and distinctly from adults. This does not mean that young people are not accountable for the offences they commit. They are decidedly but differently accountable."

[11] Because of their age, young people have "heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability". This presumption warrants the unique approach to punishment in the YCJA. See R. v. D.B. at ¶ 41.

[12] This presumption of diminished moral blameworthiness or culpability is a principle of fundamental justice recognized by section 7 of the Charter of Rights and Freedoms. It is also a legal principle that finds expression in the United Nations Convention on the Rights of the Child. See R. v. D.B. at ¶ 60, 68-69. And it is a principle that was incorporated into text of the YCJA after R. v. D.B. in its preamble.

[13] Other principles recognized in the preamble of the YCJA include that:

(a) Members of society share a responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood;

(b) Communities, families, parents and others concerned with the development of young persons should, through multi-disciplinary approaches, take reasonable steps to prevent youth crime by addressing its underlying causes, to respond to the needs of young persons, and to provide guidance and support to those at risk of committing crimes; and

(c) Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons.

[14] The YCJA's declaration of principle in section 3 sets out Canada's policy with respect to young persons. This policy informs the sentence that I must impose in this case.

[15] The germane portions of section 3(1) read:

Policy for Canada with respect to young persons

3 (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and

(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and

(d) special considerations apply in respect of proceedings against young persons and, in particular,

(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,

(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

B. Specific Sentencing Principles

[16] Section 38 of the YCJA sets out the sentencing principles that I am to consider and apply.

[17] Pursuant to section 38(1), the purpose of sentencing is to hold H.M. accountable for the offences through the imposition of just sanctions that have meaningful consequences for him, and that promote his rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

[18] Pursuant to section 38(2), I am to determine the sentence in accordance with the principles set out in section 3 that I have highlighted above. In addition:

(a) The sentence must not result in punishment that is greater than that which would be appropriate for an adult 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) I must consider all available sanctions other than custody that are reasonable in the circumstances;

(e) The sentence must be the least restrictive that is capable of holding H.M. accountable through the imposition of just sanctions that have meaningful consequences and that promotes his rehabilitation and reintegration into society, that is the most likely to rehabilitation and reintegrate H.M. into society, and that promotes a sense of responsibility into him and acknowledges the harm done to victims and the community; and

(f) Subject to the proportionality principle and recognizing H.M.'s degree of responsibility, the sentence may also denounce unlawful conduct and deter him from committing offences.

[19] Finally, pursuant to section 38(3), I must take into account a number of factors. Those are H.M.'s degree of participation in the commission of the offence, the harm done to any victims and whether it was intentional or reasonably foreseeable, any reparation made by H.M. to the community, the time H.M. has already spent in detention as a result of the offence, any previous findings of guilt, and any other aggravating and mitigating circumstances related to H.M or the offence that are relevant to the purpose and principles set out in section 38.

C. Specific Statutory Provisions Relating to a Custodial Sentence and to the Other Sentences Suggested in this Case

[20] Pursuant to section 39(1), H.M. may not receive a custodial sentence unless one of four circumstances are engaged. Neither the Crown nor the defence argues that section 39(1)(a)-(c) apply in this case.

[21] That is because possession of a loaded firearm, in itself, is not a "violent offence" within the meaning of sections 2 and 39(1)(a) of the YCJA (see R. v. C.D., 2005 SCC 78; see R. v. G.(N.), 2007 ONCJ 129 ¶ 3-6; and see also R. v. J.G., [2011] O.J. No. 3248 ¶ 10).

[22] Moreover, as this is H.M.'s first finding of guilt, there is no prior example of his failure to comply with a non-custodial sentence, within the meaning of section 39(1)(b).

[23] And while an adult would be liable to imprisonment for more than two years for these offences, H.M. does not have a history that indicates a pattern of either extrajudicial sanctions or findings of guilt, within the meaning of section 39(1)(c).

[24] As such, the question that I must consider pursuant to section 39(1)(d) is whether this is an "exceptional case", in that H.M. has committed an indictable offence, but also that the aggravating circumstances are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

[25] If the Court determines that a custodial sentence is appropriate, then pursuant to section 39(8), I must be guided by the purpose and principles set out in section 38 when determining the length of the sentence that includes a custodial portion, and I am not to take into account that the supervision portion of the sentence may not be served in custody, nor that the sentence may be reviewed under section 94.

[26] Pursuant to section 38(9), I am also required to state in these reasons why a non-custodial sentence is inadequate to achieve the purpose set out in section 38(1). And because a custodial sentence would only be available if I find this case to be "exceptional" under section 38(1)(d), I must explain why the case is exceptional.

[27] Section 42(2) lists the sentences that the Court may impose. The Court may impose more than one sanction, provided that they are not inconsistent with each other.

[28] I have considered all of the available sanctions enumerated in the legislation in light of the principles that I must apply. But also, based on the submissions in this case, I have considered sections 42(2)(b) and (c) specifically, as the defence submits that H.M. should be absolutely discharged, or conditionally in the alternative, and sections 42(2)(n) and (k), as the Crown submits that H.M. should receive a custodial sentence followed by a period of probation.

[29] In the result, I have decided to impose a sentence of deferred custody and supervision for a period of time as authorized in the statute, followed by a period of probation and community service.

D. Case Law Relevant to Whether the Court Should Impose a Custodial Sentence

[30] R. v. R.E.W., involved a young person who had been convicted of two counts of being an accessory after the fact to murder. The young person appealed his custodial sentence. The Ontario Court of Appeal's decision in R.E.W. considered the proper interpretation of section 39(1)(d) of the YCJA.

[31] At ¶44, Rosenburg J.A. drew a number of conclusions about the interpretation of section 39(1)(d) as follows:

(a) The object and scheme of the YCJA and Parliament's intention indicate that the Act was designed to reduce the over-reliance on custodial sentences that was the experience under the Young Offenders Act;

(b) An expansive definition of "exceptional cases" would frustrate Parliament's intention to reduce the over-reliance on custodial sentences;

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

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

(e) Exceptional cases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can be justified; and

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

(1) Firearms Cases in Which Secure or Open Custody Was Imposed

[32] The Crown tendered a number of decisions involving findings of guilt for the possession of a loaded firearm, among other things. In those various decisions, judges have determined that section 39(1)(d) applies. In certain respects, the cases are factually similar. But of course, they are different in other ways. I will summarize some of the cases tendered by the Crown.

[33] In R. v. C.L., [2011] O.J. No. 794, Justice Ellen Murray found C.L., a 19-year old (17 at the time of the offence) guilty of unlawful possession of a loaded restricted firearm and careless storage of the gun. The gun was discovered in the course of executing a search warrant. C.L. pleaded guilty to the charges.

[34] There was very little before the Court about the circumstances of the offence. C.L. did not present any evidence for the sentencing. The pre-sentence report stated that C.L. was paid for holding the gun for another person.

[35] Murray J. ordered a 7-month custodial sentence, 3½ months of community supervision and 12 months of probation. She decided that the custodial portion would be served in open custody.

[36] In crafting this sentence, Murray J. referred to the possession of a loaded firearm as a very serious offence, that C.L. had intentionally taken a risk to hold the gun because he wanted money to finance a lifestyle, and that although he did not use the firearm, the Court found that there was no reason to own a loaded firearm, other than to cause harm or threaten harm.

[37] At ¶ 15, Murray J. held that a well-informed community member would be shocked if a 17-year old committing such an offence in these circumstances was not subject to a custodial sentence.

[38] Murray J. considered, but rejected a sentence of deferred custody. In so doing, she considered that C.L. had accepted responsibility by his guilty pleas, but that he did not express remorse to the probation officer, that he acted alone, and that there was little evidence of rehabilitative activity since the offence. These facts are different than the case before me.

[39] In R. v. J.G., another decision of Justice Murray's, she found a 17-year old young person (16 at the time of the offences) guilty of possession of a firearm with ammunition, possession of a firearm with the serial number removed, possession of cocaine for the purpose of trafficking, obstructing a police officer and of failure to comply with a recognizance. J.G. pleaded guilty to those charges, based on an agreed statement of facts. By the time of the sentencing, J.G. had already served the equivalent of 12 months in detention.

[40] Murray J. sentenced J.G. to a further period of 13 months of custody and supervision. She invited J.G. to apply for a sentence review after 5 months. She also ordered that J.G. would be transferred to open custody after one month.

[41] At ¶ 12-19 and 23, Murray J. had "no doubt" that a custodial sentence was both available and appropriate. At the time of the offences, J.G. was already subject to a recognizance which included conditions prohibiting him from possessing firearms or drugs. The recognizance was the result of two charges of possession of cocaine for the purpose of trafficking. J.G. fled his school when the officers came to arrest him. J.G. did not give evidence as to why he had the gun that day.

[42] J.G. had been attending a school in an alternative placement for students expelled from other schools. The vice-principal testified that the events were traumatic for staff and students and have had lasting effects on the school. The school faced complaints from the surrounding community about the danger that students might pose. The school instituted heightened security measures. And J.G. had previously been found guilty of robbery and received a conditional discharge in 2009.

[43] Murray J. referred to the community concern about handguns and a number of aggravating factors, namely that J.G. acted alone, in a deliberate manner, that he stored the handgun in an insecure manner, that his handgun was taken through a residential neighborhood and into a school, that he attempted to escape leading to a violent confrontation, that the offences had a significant negative impact on the school staff, students, and that it damaged the social fabric of the school community. As well, J.G. was subject to a court order that prohibited the possession of the firearm.

[44] At ¶ 23-25, the Court found J.G.'s pre-sentence report as "neutral". J.G. was a young person with great potential who failed to make use of that potential. He did not take advantage of referrals to programming which could have helped him not to re-offend. While he had the support of his mother and good potential, he had shown positive behavior in detention, he had taken advantage of opportunities in detention, and he had shown remorse by his guilty pleas, Murray J. found the aggravating factors to have been too weighty, and J.G.'s progress towards rehabilitation was too recent to operate against a lesser sentence.

[45] While community concerns about handguns are very much at the forefront in the case before me, at the same time the facts in J.G. are more aggravating than in this case.

[46] In R. v. R.W., [2010] O.J. No. 3555, Justice Barnes sentenced a young person, who pleaded guilty to possession of a loaded firearm, possession of that firearm while prohibited, breach of recognizance and carrying a concealed weapon to 16 months custody and 8 months of probation, with an enhanced credit for time served at 1.3 to 1. R.W. had been in custody for 7½ months when he was sentenced.

[47] R.W. was arrested on a side street in the neighborhood. He was holding onto his waist area, in which there was a firearm with a bullet in the firing chamber and three bullets in the chamber. At the time, R.W. was on bail for a break and enter. Although R.W. accepted responsibility through his guilty plea, had spent time in detention already, had not had contact with his family during detention and did not engage in any threatening behaviour with the gun, Barnes J. found that he had a criminal record with multiple convictions, he was bound by a 2 year weapons prohibition, he was subject to the aforementioned recognizance, he was found with the loaded firearm in a residential area and he fled from the police with the loaded firearm in his waist.

[48] No alternatives to custody had been raised at R.W.'s sentencing hearing. In any event, Barnes J. found that in light of R.W.'s history of non-compliance with court orders, a non-custodial sentence would not be appropriate. In this respect, R.W. is also distinguishable from the case before me.

[49] Finally, I refer to R. v. T.R., [2007] O.J. No. 4074. In that case, T.R. was found guilty after trial of several offences including possession of a weapon, obstruction of justice and breach of probation. Justice Foster sentenced T.R. to 12 months custody, followed by 12 months of probation.

[50] T.R. was observed smoking marijuana in a subway station. During a search of his backpack an antique handgun with a bullet taped to fit in the firing chamber was found. T.R. lied to the Toronto Transit Commission Officer about his name and was also found to be in possession of a small quantity of cocaine and a flick knife. T.R was on bail at the time. He was subject to a curfew and was prohibited from possessing a weapon.

(2) Firearms Cases in Which Deferred Custody and Supervision Was Imposed

[51] By contrast, as Murray J. did say in obiter in R. v. J.G., "strong mitigating factors" can lead to the imposition of a sentence of deferred custody, followed by a period of probation. Strong evidence of rehabilitation since the commission of the offence, an indication that the young person's progress towards rehabilitation and reintegration into the community is well underway and might be impeded by a sentence of custody and supervision will be a significant mitigating factor.

[52] In R. v. A.R., 2007 ONCJ 131, A.R. pleaded guilty to breaking into a house and theft, possession of a firearm knowing it was obtained by a criminal offence and the unauthorized possession of a firearm. Justice Tuck-Jackson sentenced A.R. to 6 months of deferred custody and supervision followed by 12 months of probation and 40 hours of community service.

[53] Tuck-Jackson J. held that there were many factors specific to A.R.'s background and prospects for rehabilitation that weighed in his favour. They included that he accepted responsibility for his actions by cooperating with the police, pleading guilty and expressing remorse for his actions to the author of the pre-sentence report. A.R. had no previous contact with the criminal law at the time of the offences, he came from a pro-social supportive background and he had responded well to community supervision. He had excellent behaviour since his arrest and he was not the "ring leader" in the commission of the offence. His criminal conduct was related, in part, to his vulnerability to peer pressure and his episodic association with a negative peer group. That vulnerability may have been connected to a learning disability. While Tuck-Jackson J. held that probation was inappropriate, in the circumstances of the case, which involved making a prohibited weapon, in light of the mitigating factors, she decided to order deferred custody and supervision.

[54] In R. v. A.W., 2009 ONCJ 650, A.W. pleaded guilty to possession of a loaded restricted firearm with ammunition, resisting a peace officer, failing to comply with a term of the recognizance of bail and failing to comply with a term of a previous conditional discharge. A.W. had already been in pre-trial detention for 7 months. Tuck-Jackson J. imposed a 6-month deferred custody and supervision order, followed by 23 months of probation, 240 hours of community service and a 10-year weapons prohibition. She also ordered a DNA sample.

[55] The facts of that case were that A.W. had been shot at. The vice principal was worried that A.W. might have armed himself to protect himself so he contacted the police. A.W. was subject to a previous judicial interim release order that required him to attend school. His attendance had been spotty. The police attended to arrest A.W. for breaching the bail and he attempted to flee. After a brief struggle, a handgun fell from his backpack. The firearm contained 11 rounds of ammunition. There was a bullet in the chamber. A term of A.W.'s recognizance prohibited him from possessing the firearm as well as did the previous conditional discharge.

[56] Tuck-Jackson J. accepted A.W.'s statement that he had armed himself as a means of self-protection. By way of aggravating factors though, Tuck-Jackson J. took into account that this case involved a loaded weapon, that he had the gun at school, that he acted entirely on his own, that he was subject of two court orders prohibiting him from possessing the firearms and that he tried to escape the police. However, she also considered that he pleaded guilty, that he has served 141 days of pre-trial detention, and that in the three years leading up to the incident, he was subjected to an "enormous amount of untreated stress" associated with his parents' separation, dealing with his father's severe work-place injury, losing three grandparents, being the victim of a robbery, experiencing the murders of three teenage friends, and being shot at for an unknown reasons.

[57] In imposing a sentence of deferred custody and supervision, Tuck-Jackson J. considered that A.W. had responded well to supervision. Community members spoke positively of A.W. and about his personal potential and that he had contributed to his community through volunteer work. As well, his parents were able to supervise A.W. upon his release. The section 34 assessment concluded that A.W. had a moderate risk of re-offending.

[58] And finally, in R. v. C.W., 2007 ONCJ 587, Bloomenfeld J. sentenced C.W. to serve 6-months of deferred custody and supervision, followed by 18-months of probation. C.W. pleaded guilty to careless storage of a firearm, possession of a loaded restricted firearm, careless storage of ammunition and being an occupant in a vehicle in which he knew there was a firearm. C.W. had a criminal record with drug convictions, theft and breach of recognizance.

[59] However, there was evidence that C.W. had a supportive family and C.W. had been diligent in complying with the terms of his bail. C.W. spent several months under a curfew and house arrest without incident. He was remorseful and accepted responsibility for his actions. His pre-sentence report was positive and included a recommendation for a community-based sentence.

[60] For the reasons that follow, I find that the circumstances of the offences before me, and H.M.'s circumstances, more closely resemble those in the cases in which deferred custody and supervision, followed by probation, was imposed.

PART III: ANALYSIS

A. This is An Exceptional Case Within the Meaning of Section 39(1)(d)

[61] Firstly, I agree with the Crown that this case fits within the parameters of section 39(1)(d). and that a custodial sentence is available and appropriate. I find that the circumstances of the offence are shocking, so as to threaten widely-shared community values.

[62] The charges for which H.M. has been found guilty are serious. Again, H.M. had a loaded firearm in his pants with a bullet in the chamber. He has not explained how it came into his possession, nor why he had it. There is no evidence before me to suggest that H.M. somehow has a lesser degree of participation in relation to his possession of that gun. I agree with Murray J. at ¶ 13 of R. v. C.L. where she said there is no reason to own a loaded firearm other than to cause harm or threaten harm. What H.M. did was extremely dangerous.

[63] Moreover, although H.M. was not in a public area, in the sense of being in a school or on the street of a residential neighbourhood, as was the case in some of the other decisions that I have referred to, he nevertheless had the loaded gun, in a car, in a parking garage of an apartment building, in downtown Toronto. I agree with the Crown that these are aggravating factors, and they add to the seriousness of the offences, such that section 39(1)(d) is engaged.

[64] The Crown submits that H.M.'s location in the driver's seat of the car at the time of the arrest is an aggravating factor. I disagree with the Crown that H.M.'s location in the car should factor into the equation in this case. I say that because, in the Judgment of June 5, 2019, I did not find that H.M. had sufficient control over the car to prove his possession of the other items in the vehicle, for which the Crown sought findings of guilt. And while the evidence revealed that the car had been moved within the parking garage, I did not find that it was H.M. had moved it or that he had been in the driver's seat before the police arrived. I only found he was in the driver's seat at the time of the arrest.

[65] Nor did I find H.M. guilty of the other charges in relation to the second gun, or the drugs in the car or on the person of the others for the numerous reasons I articulated in the June 5, 2019 Judgment. Therefore, I do not take the presence of those items in the car or elsewhere into account as part of H.M.'s sentencing. I place little weight on the Crown's submission that H.M. was present in a car that was "littered" with drugs.

[66] Nevertheless, it is still my view, for the reasons set out above, that section 39(1)(d) is engaged. That said, deferred custody and supervision is a form of a custodial sentence.

[67] While I have considered and applied the various principles in the YCJA, H.M.'s sentence must also be an individualized one. At ¶ 12 of R. v. C.W., after having considered a number of cases (some of which I have also reviewed and referred to in this decision), Bloomenfeld J. wrote:

These cases and the range of sentences that they represent re-affirm the individualized nature of youth sentencing. It is impossible and improper to apply a generic analysis when dealing with youth or when determining whether a particular case requires consideration of a custody sentence as an "exceptional case" pursuant to s. 39(1)(d) of the YCJA. As illustrated by Justice Gage's decision in N.G., the presence of a handgun, loaded or otherwise, is not, on its own, enough to make any case "exceptional". Nevertheless, the objective gravity of the offence as contextualized in the instance case must be taken into account, in addition to the other aggravating circumstances.

[68] Therefore, I now turn to H.M.'s circumstances.

B. H.M.'s Circumstances

[69] Following the findings of guilt, H.M. submitted to an assessment at the Centre for Addiction and Mental Health pursuant to section 34 of the YCJA. The Court also had the benefit of a pre-sentence report, and two letters of support, one from Ainsley Lamond, Youth Support Worker at Central Toronto Youth Services, and another from the vice principal at H.M.'s high school during the 2018-2019 school year. This documentation reveals the following.

[70] H.M. was 16 at the time of the arrest. He is now 18 years old.

[71] H.M. comes from a country in east Africa. He lived there until 2014 (when he was 13 or 14 years old), after which he came to Canada with his mother and younger brother. H.M.'s mother did not complete high school in Africa, but she is trying to do so now. She has recently enrolled in a high school program. H.M.'s mother has also worked hard to support the family. As a consequence, both the section 34 and the pre-sentence reports note some concerns about H.M.'s inadequate supervision.

[72] This family left their country of origin because there was civil unrest there, and they did not feel safe. Upon their arrival in Canada, the family lived with relatives for a while, then with the mother's new partner briefly, and then in a shelter. They now reside in their own apartment in Toronto. H.M.'s mother reported that the new neighborhood is safe, but she occasionally feels isolated and overwhelmed.

[73] H.M.'s father has never had any involvement in H.M.'s life. Both mother and son reported a good relationship with each other, and that there is a good relationship between H.M. and his younger brother.

[74] H.M. described his mother as very caring. However, by the same token, H.M. does not feel comfortable discussing his feelings with his mother. Nor was he able to discuss certain trauma during the assessment process. The section 34 report states that H.M. would benefit from counselling.

[75] The section 34 report notes a concern about H.M.'s association with negative peers. H.M.'s mother reported that when he turned 17, H.M. started going out alone. She did not know where he went. Despite having a curfew at 9:00 pm, he generally came home around 11:00 pm.

[76] H.M. said he had a close group of 2 to 5 friends, who are males his age. He said those friends are a positive influence on him, although he also acknowledged that they have engaged in illegal activities together. Meanwhile, H.M.'s mother believes that H.M.'s friends are much older than H.M. (in their 20s) and that they are negative influences and antisocial. Since the arrest though, he has spent less time with those friends.

[77] The section 34 report suggests that it is likely H.M.'s challenging early life, followed by transitions and a lack of stability, plus his weak English language skills, have made him vulnerable to antisocial peers.

[78] H.M. has tried marijuana. He did so when he was 16 for the first time, but reported that he has only used it a couple of times. It is true that he had smoked marijuana at the time of the arrest. He does not report problematic alcohol use.

[79] In the past H.M. worked part-time in a sports club in Toronto. He worked as a dishwasher in the kitchen. He was trying to earn some money to help with the family's finances. H.M. formed a close relationship with the chef there, who taught him about cooking. He got along well with his co-workers. But then H.M. stopped showing up at work. He did so because work became too taxing, and it interfered with his school.

[80] H.M. did not tell the chef that he was leaving. He expressed feelings of guilt to the author of the section 34 report, about the way that he ended his job, and about not talking to the chef.

[81] In the future, H.M. wants to become a mechanic. He also wants to own his own business. He has been watching videos on Youtube about how to become a successful business owner. He also enjoys playing basketball. By the time of the section 34 report, H.M. had done around 40 hours of volunteer work at a basketball camp.

[82] H.M. was quiet and withdrawn during his first appointment at CAMH; the author of the report notes that it was difficult to establish a rapport with him. While he was less withdrawn at his second appointment, he was not comfortable discussing his past trauma history.

[83] That said, the report notes that H.M. was generally cooperative during the assessment process, but he had significant difficulties with comprehension, and he has weak verbal reasoning skills. While there was some concern that he was not entirely forthcoming with information during the assessment, the author of the report noted that his brevity could have been related to his weak language skills.

[84] H.M. has suffered trauma in the past. When H.M. was 11, his best friend passed away. He became very emotional when asked about the loss of this friend during the section 34 assessment process.

[85] In terms of his educational history, after coming to Toronto, H.M. first went to an elementary school for a year, and then to certain high school in Toronto for grade 9. Initially, he attended school and it is noted that he was respectful towards persons in positions of authority, such as his teachers and the vice principal. That said, H.M. struggled in academically in high school during grade 9, earning grades in the 50s.

[86] Starting in grade 10, H.M.'s school attendance became an area of concern. He was involved in some serious altercations at school, and was associating with negative peers. Both H.M. and his mother reported that behavioural problems started happening in Grade 10, when they were living in the shelter. In the middle of grade 10, H.M. was expelled for fighting and truancy. He was then transferred to an expulsion program at another school. He remained there until grade 12.

[87] It has been noted that while there, H.M.'s behaviour improved "substantially" and his marks increased. He achieved grades in the 60s and 70s, although he did not pass a grade 10 literacy test. H.M. reported that he felt respected by his teachers in this program, and he felt motivated to go to class in the expulsion program. He expressed that small class sizes and increased support helped him to learn and focus.

[88] H.M. has earned 17 high school credits. He initially stopped attending school after his arrest due to the conditions of his house arrest. When the conditions were amended, H.M. was able to reintegrate back to school.

[89] Regrettably, H.M. did not attend school during the month of September, 2019. That said, he wants to return. H.M. explained during the section 34 assessment process that he did not go to school in September 2019 because he is waiting for the completion of the court case and this sentencing.

[90] Graduating high school is very important to H.M. Again, he would like to finish high school and then go on to become a mechanic. He expressed that this would make his mother feel proud.

[91] In October 2016, when he was in grade 11, H.M. completed a psychoeducational assessment through the school board. His intellectual abilities across different areas were assessed in the extremely low, very low and low average ranges. He performed in the very low to low average ranges across all domains of academic functioning. And he scored in the "at risk" range for inattention, hyperactivity and depression subscales.

[92] Although he achieved those scores, no diagnoses of H.M. were made at the time. The examiner recommended that H.M. pursue a hands-on occupation, that he receive supportive counselling, a math tutor and English as a second language instruction, and that he consult with a physician regarding a potential ADHD diagnosis.

[93] An updated cognitive assessment was conducted as part of the section 34 assessment. Overall, H.M.'s weaknesses in verbal reasoning, working memory and processing speed, were similar to the results of the previous testing. His non-verbal reasoning abilities appear to have fallen further.

[94] The section 34 report notes that it is likely that H.M.'s cognitive deficits make academic subjects, like math and English, very challenging, and these have contributed to his long-standing history of school disengagement. H.M. will require intensive supports and accommodations to promote his success.

[95] H.M. had social work support at the first high school prior to his expulsion. When there, he established a strong connection with the counsellor and worked on anger management skills.

[96] After the arrest, H.M. worked with a counsellor at the Central Toronto Youth Services' Early Release Support program, who helped him reintegrate into school after the conditions of his pre-trial release were amended. H.M.'s counsellor described H.M. as a friendly and respectful young man, who is open to discussing his learning and behavioural issues, but not his past history. H.M. maintained contact with the counsellor beyond the length required of him by the Court.

[97] There is some concern about H.M.'s anger. He expressed that around once per week, he becomes very angry. The anger is triggered by other individuals, specifically when he feels he has been disrespected. However, he reported that the anger management sessions with the school social worker were helpful.

[98] This is H.M.'s first finding of guilt. He acknowledged being in possession of a gun, but he struggled to explain the specific details of the event, how he acquired the gun or for what reason. He did say that he had no intention of using it to hurt someone.

[99] The author of the pre-sentence report wrote that H.M. seemed to minimize his involvement. He did not provide much insight into his involvement, or into his behaviour and its impact on the community. But the section 34 report says otherwise.

[100] H.M. expressed remorse during the section 34 assessment process. He said that he is the only one to blame for his actions, he realizes the seriousness of the charges and he felt very badly afterwards. He understands that he set a bad example for his younger brother and his community and he disappointed his mother. He wants the Court to know that he made a mistake and that he has learned his lesson. At the end of the sentencing hearing, H.M. told the Court that he is ashamed and that he is trying to change, to do better for himself and his family. He reiterated that he is committed to finishing his education and to pursuing a career.

[101] During the section 34 assessment process, H.M. expressed various positive values, opinions and prosocial attitudes, such as the importance of laws and feeling bad and angry at himself after wrongdoing. He does not want any further involvement with the legal system and says he intends to follow the law. He is open to engaging in services to address his anger and school functioning, although he continues to express a reluctance to talk about past traumatic events.

[102] Collateral sources have also reported that H.M. is motivated to complete his schooling and to make positive choices. The vice principal of H.M.'s expulsion program worked closely with H.M. during the 2018-2019 school year.

[103] In her letter of September 27, 2019, she writes that H.M. "demonstrated tremendous growth in our program. He attended regularly, showed commitment to attaining credits, earning 6 credits last year. Most importantly, he developed a strong sense of commitment to his academics as well as being a positive role model for his peers. After meeting [the] demission requirements in January, H.M. chose to remain in [the] program in order to accumulate more credits in a support environment".

[104] The vice principal also writes that at the end of the 2018-2019 school year, when H.M. left the expulsion program, he expressed optimism about his future and he was motivated to make good choices and to build a life for himself.

[105] The vice principal and the administration team were "confident that H.M. is ready and capable of being a productive and responsible member of society and has learned from his past".

[106] The vice principal and her team are willing to monitor his progress in a new school placement and to support him in any way that they can.

[107] In her letter of September 27, 2019, Ms. Lamond from Central Toronto Youth Services writes that H.M. completed the 16 required sessions of the Early Release Support Program counselling and that he received further supports after June 26, 2019. H.M. was engaged and actively participated in discussions surrounding positive decision making, pro social relationships and identifying individual goals. He had been working on making choices that are likely to lead to a positive, appropriate outcomes. And he is willing to continue in counselling at Central Toronto Youth Services.

[108] The criminogenic needs/risk assessment component of the section 34 report assesses H.M. to be in the moderate risk range for continued behavioural difficulties. There are risks associated with inadequate supervision, low achievement at school and truancy, negative peer associations and few positive peers, limited organized activities, and physical aggression. However, the report also notes that it is promising that H.M.'s anger was not reported as a significant concern after he was transferred to a different, small and structured school setting, and he was able to achieve better grades. It is also encouraging that he developed a positive relationship with teachers, and appears to be motivated to complete school and pursue college in the future.

[109] In the result, both the section 34 report and the pre-sentence report recommend a number of services, targeted at H.M.'s varied needs.

C. The Appropriate Sentence in this Case

[110] Section 42(5) restricts the availability of a deferred custody and supervision order. Deferred custody and supervision is not an option if the young person was found guilty of an offence in which he caused or attempted to cause serious bodily harm. That is not the case here.

[111] Deferred custody and supervision must also be consistent with the purpose and principals set out in section 38, and the restrictions on custody set out in section 39.

[112] I find that a deferred custody and supervision order is available in this case, and it is my view that the maximum sentence of 6 months, followed by 12 months of probation is appropriate.

[113] I say this for the following reasons.

[114] I have already addressed many of the aggravating factors in this case earlier in these reasons, when considering the availability of a custodial sentence pursuant to section 39(1)(d). That said, I will address some of the Crown's other arguments in favour of a more onerous sentence.

[115] The Crown argues that the section 34 and pre-sentence reports are not particularly positive. The Crown says that H.M. has no insight into his participation, no explanation as to why he had the firearm, and that he was not forthright in his discussion of the offence. The Crown also submits that during the section 34 assessment, H.M. denied being involved with a negative peer group, and there is a lack of parental supervision in this case.

[116] I would not characterize the reports in that way. The defence more fairly characterizes the reports as mixed, with some "positives" and some elements that are less so.

[117] I consider the following as positives.

[118] This is H.M.'s first finding of guilt. He does not have a history of offending behaviour.

[119] While I in no way intend to derogate from the seriousness and dangerousness of the offence, H.M. did not use the firearm.

[120] I disagree with the Crown regarding its statements about H.M.'s lack of insight and remorse. I find that H.M. has accepted responsibility for his actions. While he did not plead guilty, that was because he wanted to raise Charter arguments. The Crown even conceded Charter violations. And while the Court did not exclude the evidence, the Court did find there to be Charter violations. I would add here that the Court also found the Charter breaches to have been serious.

[121] I agree with counsel for the defence that but for the Charter arguments, H.M. did not otherwise challenge the charges relating to the gun found in his waist band. In other words, he conceded that he should be found guilty of possession if the evidence was admitted.

[122] H.M. was entitled to raise Charter arguments and the Court would not hold that against him in this sentencing process. Further, he was entitled to challenge the other criminal charges (for which he was not found guilty). I do not see H.M.'s positions taken at the trial as derogating from his expression of remorse.

[123] I have placed some weight on the fact that H.M. did not explain the circumstances of the offence, or his involvement in it, during the assessment and pre-sentence report processes. However, I am also mindful that H.M. was generally quiet and reserved during the assessment process. Concerns about his language skills were flagged by the author of the section 34 assessment.

[124] There are other aspects of H.M.'s interactions during the assessment process that speak to his remorse. He accepted responsibility to the author of the section 34 report. Again, H.M. said that he is the only one to blame, he realizes the charges are serious and he felt badly. He acknowledged having set a bad example for his brother and his community more broadly, and he is upset that he has disappointed his mother.

[125] H.M. has a difficult history. H.M. does not enjoy a relationship with his father and does not seem to have an adult male role model in his life. His family came to Canada as a result of fleeing civil unrest in their country of origin. Since coming to Canada, H.M. was subjected to housing instability, including living in a shelter. There is a suggestion in the report that H.M.'s school issues started to occur during the time the family was in the shelter. The report notes that this history may have made H.M. vulnerable to antisocial peer influence. These are individual circumstances of the offender that I will take into account.

[126] Nevertheless, H.M. enjoys a positive relationship with his mother and his brother. The concerns about inadequate supervision relate to the fact that his mother is a hard working woman who is still trying to integrate into society and to support her family. H.M. showed a sense of responsibility during the assessment process, when talking about wanting to work to contribute to his family's well-being.

[127] H.M. suffers from certain cognitive deficits and potentially ADHD. This too has made him vulnerable. Despite that, he was able to improve his academic performance when he was transferred to the expulsion program and had the help of supportive professionals.

[128] As I have said, it is unfortunate that H.M. decided not to return to school in September 2019, pending the outcome of this decision. However, I accept what I have been told from the assessment, that he has a strong desire to complete high school and to pursue a career in business as a mechanic. While H.M. does have some issues with anger, those issues were not noted as a significant concern once his school was transferred to the expulsion program. It is impressive that H.M.'s former vice principal spoke so strongly of H.M., and that he was able to develop a positive relationship with his teachers in the expulsion program.

[129] While there is some marijuana use, drug and alcohol misuse are not really noted as areas of concern noted in the section 34 assessment.

[130] H.M. is at moderate risk of re-offending. It is a positive that there is no evidence of H.M. not being compliant with the conditions of his release pending this trial, or since the release of my Judgment on June 5, 2019. He has not re-offended in any way.

[131] H.M. has already started his rehabilitation and reintegration process. He participated actively in counselling. One counsellor described him friendly and respectful. He has also performed 40 hours of community service so far.

[132] It is for these reasons that the facts of this case, and H.M.'s circumstances, are distinguishable from many of the cases relied upon by the Crown in which sentences of custody were imposed. Furthermore, unlike some of the other cases, H.M. did not flee when arrested. This is not a situation where H.M. had previous findings of guilt, or where there was already a prohibition order in place, or a bail term, that had been breached. Again, while the offences are very serious, there were no weapons prohibition orders in place at the time of H.M.'s arrest that would have aggravated the seriousness. H.M.'s actions did not cause trauma to members of the community, nor did I hear any evidence of an ongoing impact of the event as was the case before Murray J. This is not a case like R. v. J.G., where the young person had not taken advantage of programming.

[133] In imposing deferred custody and supervision followed by probation and some additional community service, I have taken into account H.M.'s diminished moral blameworthiness and culpability. I find the sentence is proportionate to the seriousness of this offence and H.M.'s degree of responsibility. Taking into account H.M.'s circumstances, and the circumstances underlying his offending behaviour, I find that the sentence will ensure his accountability with meaningful consequences and it promotes his ongoing rehabilitation and reintegration into Society.

[134] I also find that this sentence is within the ranges of sentences articulated above, while being mindful that sentencing for young persons must be individualized. Having regard to the proportionality principle in the YCJA, I have crafted a sentence that contains an element of denunciation and deterrence.

D. A Discharge and Other Lesser Sentences Are Not Appropriate In this Case

[135] While I am not imposing the more onerous sentence sought by the Crown, I do not find a lesser sentence to be appropriate either, as it would not achieve the objectives that I have just articulated.

[136] In particular, I do not find the absolute discharge sought by the defence to be in the public interest. The reports indicate that H.M. still requires support and monitoring.

[137] As the defence argued for a conditional discharge in the alternative, to be clear, I find that neither an absolute discharge or a conditional discharge would be appropriate, to address the principles and the objectives of the YCJA. Counsel for the defence tendered a number of decisions in which discharges were given for possession of firearms offences. Each of those cases is very factually dissimilar to the case before me. I agree with the Crown that these cases are "outliers".

[138] Nor would I have found a probation order alone to be appropriate here.

[139] In saying this, I have reviewed both R. v. G.(N.), 2007 ONCJ 129, and the more recent decision in R. v. H.A.H., [2018] O.J. No. 635, in which the Court imposed a sentence of 18 months' probation for a firearms offence. It is important to note that in each of those cases the Court did not find exceptionality, such that section 39(1)(d) was even engaged. For example, at ¶ 21 of R. v. H.A.H., Justice Fairgrieve found, "[w]ithout in any way minimizing the gravity of the offences or overlooking the community's rightful condemnation of H.A.H.'s conduct, the evidence, I am compelled to find, simply fails to disclose the aggravating factors that would be needed to permit a custodial sentence".

[140] In summary, the charges for which H.M. has been found guilty are serious and there are certainly aggravating features alive in this case. But there are also many positives. There is an indication that H.M.'s person's progress towards rehabilitation and reintegration into the community is underway. In conclusion, while I have not seen fit to impose either secure or open custody, for the reasons I have just articulated, I would not find any lesser restrictive sentence, other than deferred custody, to be appropriate either, even after taking into account the Charter violations.

[141] I will deal with their impact upon my deliberations next.

E. H.M.'s Argument for a Sentence Reduction Pursuant to Section 24(1) of the Charter

[142] Section 24(1) of the Charter reads:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[143] It is true that the Court has a wide discretion in crafting a remedy under section 24(1).

[144] H.M. has not raised a challenge to the constitutionality of any particular applicable statutory provision. Rather, Section 24(1) provides a "case-by-case remedy for unconstitutional conduct of state agents operating under lawful schemes the constitutionality of which is not challenged. The acts of state agents acting under these regimes are not the necessary result or "effect" of the law, rather that agent's application of a discretion conferred by the law in an unconstitutional manner". See R. v. Donnelly, 2016 ONCA 988 ¶ 145-149.

[145] H.M.'s request for a sentence reduction raises two principal questions. First, is it even necessary to turn to the Charter at all to find the jurisdiction to award a sentence reduction? And in any event, is it appropriate to award a sentence reduction at all? My answer to both of those questions is no.

[146] R. v. Nasogaluak, 2010 SCC 6, was a sentencing appeal. Mr. Nasogaluak had his sentences for impaired driving and flight from the police reduced to conditional discharges, as a remedy for Charter breaches related to the excessive use of police force. In the appeal, the Supreme Court considered whether it was necessary to have resort to the Charter at all. The answer to this question can be found at ¶ 3-4, 47-48 of the decision.

[147] Among other things, Lebel J. held, "[w]here the state misconduct in question relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1) of the Charter." If the facts constituting the Charter breach or the alleged breach relate to one or more of the relevant principles of sentencing, then the sentencing judge may take those facts into account at arriving at a fit sentence.

[148] Of course, the sentence must respect the fundamental values enshrined in the Charter. A sentence that takes account of a Charter violation may also communicate respect for the shared set of values expressed in the Charter. But where the state misconduct does not relate to the circumstances of the offence or the offender, there should be no sentence reduction.

[149] There may be some scope for section 24(1) in sentencing. At ¶ 4 and 6, the Court left open the possibility that in "exceptional cases", a sentence reduction outside a mandatory minimum may be the sole effective remedy for some "particularly egregious form of misconduct by state agents in relation to the offence and the offender. However, in such "exceptional cases" and only where a statutory minimum is engaged, it would be necessary for there to be an underlying Charter challenge to the statutory limit itself. And even then, a sentence reduction will not an appropriate remedy under section 24(1) if the facts underlying the breach bear no connection to the circumstances of the offence or the offender.

[150] That said, there is divided jurisprudence from different provinces, pre- R. v. Nasogaluak, on the issue of whether to grant sentence reductions pursuant to section 24(1) of the Charter. The reference to section 24(1) in those decisions may be misguided. At ¶ 56 of R. v. Nasogaluak, the Court held that the, "jurisprudence may not have been completely mindful that events which justify Charter breaches may also be circumstances which can legitimately form part of the analytical process leading to a fit sentence under the provisions of the Criminal Code." Nevertheless, those cases may still inform the analysis. With that caveat in mind, at ¶ 56-63 of R. v. Nasogaluak, the Court went on to review some of that jurisprudence.

[151] According to LeBel J.'s review, certain appellate courts, such as New Brunswick, had employed the remedy of a sentence reduction fairly liberally, whereas others, including Ontario, did so with greater hesitation.

[152] I mention this because the New Brunswick Court of Appeal has recently re-affirmed its more relaxed approach to sentence reductions, albeit now under the sentencing regime in the Criminal Code as opposed to under section 24(1). In particular, in Kennett v. R., 2019 NBCA 52, Mr. Kennett's section 8 Charter rights had been violated as a result of a warrantless search. But on a Grant analysis, the trial judge admitted the evidence.

[153] On appeal, the New Brunswick Court of Appeal upheld the trial judge's section 24(2) analysis, but it went on to allow the sentence appeal and to reduce the sentence by 5 months. In so doing, the Court canvassed a number of post- R. v. Nasogaluak decisions, including those from both New Brunswick and from other provinces.

[154] At ¶ 60-61, the Court of Appeal held that the sentencing judge should have considered the incidents of state misconduct during the sentencing proceedings, not pursuant to the Charter per se, but under the sentencing regime in the Criminal Code. The error identified by the Court of Appeal was the sentencing judge's failure to have done so.

[155] In the result, in reducing the sentence by 5 months, at ¶ 69-74, the New Brunswick Court of Appeal referred to the "casual, cavalier approach to the investigation." The Court was particularly focused on the breach itself. It commented about the communication function of sentencing. It saw the sentence reduction to be fit and just so as not to render the fundamental values and rights enshrined by the Charter meaningless.

[156] By contrast, R. v. Glykis, is cited by the Supreme Court in R. v. Nasogaluak as a case that took the more restrictive approach. The Crown relies on R. v. Glykis in this case before me.

[157] At ¶ 20-21 and 27 of R. v. Glykis, the Ontario Court of Appeal held that the Charter breach did not mitigate the seriousness of the offence, nor did it constitute, in itself, a form of punishment. The actions of the police were divorced from the commission of the offence, and ultimately were unrelated to the evidence-gathering process and to the guilt or innocence of the respondents.

[158] The Court held that it was inappropriate to use sentencing proceedings as an avenue for sending a message to law enforcement officers. And, in cases where sentences had been reduced, the breach had to have resulted in some form of punishment or added hardship.

[159] R. v. Donnelly and R. v. Gowdy, 2016 ONCA 989, are both more recent, post R. v. Nasogaluak decisions of the Ontario Court of Appeal, authored by Justice Watt, in which the Court refused to award a sentence reduction. Each of those cases involved convictions for certain sexual offences. Unlike in this case before me, the sentences imposed in both decisions at first instance fell outside the applicable statutory minimums.

[160] Much of the outcome in each of these decisions turns on the fact that the Court of Appeal found that there had been no Charter violations at all, such that a remedy under section 24(1) was not available. However, the Court went on to assume that there had been Charter violations and that the sentencing judge was authorized to depart from a statutory minimum. In that context, the Court of Appeal further held that these cases did not warrant sentence reductions. In short, the conduct complained of, which included the police making public sensitive medical information in one case, was not sufficiently egregious.

[161] R. v. Donnelly and R. v. Gowdy are distinguishable from this case, in that there is no statutory minimum engaged under the YCJA. As such, there is no need to have resort to section 24(1) at all and according to R. v. Nasogaluak, exceptionality is not the test. Had it been, I would not have found the breaches in this case to be captured by the apparent exception in R. v. Nasogaluak for reasons that I will explain.

[162] In my view, the Charter breaches can and should be considered within the normal sentencing regime set out in the YCJA. According to the ratio in R. v. Nasogaluak and the subsequent decisions, I am required to consider whether the breaches relate to the circumstances of the offence or the offender in this case, or to some other relevant sentencing principle.

[163] In the result, I do not find a sentence reduction to be appropriate.

[164] In the June 5, 2018 Judgment, I found that the violation of H.M.'s section 8 and 9 Charter rights was serious. I found that two of his rights had been violated and that H.M.'s liberty was restricted from the outset. In assessing the seriousness of the Charter violations, I found that the police were not acting in an uncertain legal terrain and I rejected the Crown's argument that the police had in fact acted in good faith. And I found certain aspects of the police testimony to be concerning.

[165] However, I also accepted the Crown's submissions that the impact on H.M. was mitigated by the fact that the police could have undertaken an investigative detention, which would have involved a similar officer safety search, and that would have led to the discovery of the loaded firearm. The police would have then been empowered to undertake a limited search of the car.

[166] I did not find that there was anything untoward in the police subsequently obtaining a warrant to undertake the more extensive search of the vehicle two days later, nor that the warrant was flawed.

[167] While two of H.M.'s Charter rights were violated, the breaches do not relate to the offence itself. H.M. was in possession of the loaded firearm, quite apart from any state conduct.

[168] However, the Charter violations do relate to H.M.'s circumstances, and to the principles of the YCJA more generally in certain respects. H.M. is a young person. Again, Canada's policy with respect to young persons includes that the measures taken against young persons who commit offences should reinforce respect for societal values, and that young persons have rights and freedoms in their own right.

[169] I accept the Court should not use the sentencing process to punish the police. But on the other hand, reinforcing respect for social values and recognizing that young persons have rights and freedoms in their own right, would include the Court disassociating itself from, and disapproving of unconstitutional state conduct.

[170] That said, the Court has already expressed its disapproval of the state conduct and of the in court testimony in its written decision. And in the end, I am unable to find that H.M. suffered any additional prejudice, added hardship or additional punishment as a result of the state conduct in this case.

[171] I do not find that the Charter breaches are mitigating factors such that they either render this case less exceptional whereby a custodial sentence would not or should not be available under section 39(1)(d), nor do I find that H.M. should be given a sentence reduction below that which I have decided to impose. In saying this, I note that the sentence that I am imposing, having taken into account H.M.'s circumstances and the principles in the YCJA, is already towards the lower end of the sentences in the cases that have been put before the Court.

F. Should H.M. Receive A Credit for the Restrictions Placed on His Liberty Following the Arrest

[172] H.M. was detained for 6 days from June 14, 2018 to June 19, 2018. Following that, he was released on bail, on the condition that he reside with his surety and remain in his residence at all times unless in the continuous presence of his surety or early release support worker. There were other conditions imposed, including a prohibition against having a cell phone.

[173] The bail was relaxed somewhat on October 18, 2018 to permit H.M. to attend school. He was not required to be in the continuous presence of his surety or early release support worker as of that date between 6:30 am and 3:30 pm to attend school.

[174] Following the release of my Judgment on June 5, 2019, there was an attendance before me. On that date, counsel for the defence indicated that H.M. wanted a further relaxation of the bail conditions to permit H.M. to work. The Crown did not agree on that date. At this sentencing hearing the Crown submitted that it would have been prepared to consent to a further bail variation had H.M. obtained a job, but no such job was obtained. In the result, no further variations were implemented after October 18, 2018.

[175] As such, H.M. has been on house arrest for in between 16 and 17 months.

[176] I will first address the credit for the 6 days of pre-sentence custody.

[177] In R. v. J.G., Murray J. applied a credit of 1.5 to 1 for J.G.'s pre-sentence custody. That meant he received a credit for about 1 year of custody and supervision. She ordered a further period of 13 months, with 264 days in open custody and 132 days under community supervision. In so doing, she cited the Court of Appeal's decision in R. v. T.B..

[178] At ¶ 34-35 of R. v. T.B., the Court of Appeal held that the trial judge has discretion to assess the quantum of the credit. There is an exception however, in that a trial judge may decline to give full credit where to do so would virtually exhaust the custodial term available and result in a sentence contrary to the purposes of the YCJA. That exception does not apply in this case.

[179] At ¶ 40-42, the Court said:

[40] However, under the YCJA, youth sentences are now comprised of two-thirds custody and one-third community supervision. Thus, young persons are now in a similar position to adult offenders in that time in pre-sentence custody delays their eligibility for community supervision. For example, a youth sentenced to nine months would serve six of those months in custody, the same amount of time served by T.B. in this case. It is for this reason that, under the YCJA, trial judges have credited a youth with 1.5 days for every day spent in pre- sentence custody. On a 1.5-for-one basis, the appellant would receive credit for nine months of pre-sentence custody.

[41] Whether such a credit will be given in a particular case will depend on more than the application of an arithmetical formula. Section 38(3) lists a number of factors to be taken into account in determining the appropriate sentence, only one of which is pre-sentence custody. The s. 38(3) factors do not attract a determination on a formulaic basis.

[42] Thus, while a 1.5 credit may be the starting point for crediting pre-sentence custody, other considerations may affect the appropriate credit. Such factors may include the conditions of the youth's pre-sentence custody, the reasons for that detention, the length of the detention, the reasons for any delay in reaching trial or sentencing, and the youth's need for further custody or community service to meet the purposes of the YCJA.

[180] In R. v. T.B., T.B. only received credit for pre-sentence custody on a 1 to 1 basis. At ¶ 43, the Court said, "… the experienced trial judge expressed his concern about a 1.5 credit, which would credit "dead time for community-based supervision he's never done". In determining the appropriate sentence, the trial judge took into consideration the circumstances of the offence and the offender, including the offender's record and his prospects for rehabilitation in arriving at a one-for-one credit. He also took into consideration the impact of the offences on the victim as well as the relatively compressed duration of the maximum sentence available".

[181] In R. v. T. (D.M.), 2012 ABCA 142, the Alberta Court of Appeal explained how pre-sentence custody should be credited. At ¶ 6, the Court held that credit for pre-sentencing custody could be applied to a custodial sentence in a number of ways as follows:

(a) The pre-sentencing custody could be credited to the global sentence, and the remnant then divided into a two-thirds portion and a one-third portion. In this case the 21 month global sentence would be reduced to 12 months (21 - 9 = 12), which would be served 8 months in custody, and 4 months in the community;

(b) The pre-sentencing custody could be credited entirely against the custodial portion of the sentence, with the community supervision portion of the sentence to remain intact. In this case the 14 month custodial portion of the sentence would be reduced to 5 months (14 - 9 = 5), followed by 7 months of community supervision;

(c) Credit for the pre-sentencing custody could be entirely in the discretion of the sentencing judge. It could be credited any way the judge saw fit. This approach would be consistent with the wide discretion sentencing judges have in giving credit for pre-sentencing custody; or

(d) The pre-sentencing custody could be credited entirely against the custodial portion of the sentence. Then, regardless of what the initial notional sentence was, the time to be served under supervision in the community would be one-half of the remnant of the custodial sentence. In this case the 14 month custodial portion of the sentence would be reduced to 5 months (14 - 9 = 5), followed by 2.5 months (one half of the custodial remnant) to be served under community supervision.

[182] At ¶ 10 and 11, the Alberta Court of Appeal went on to say:

[10] In giving a young offender credit for pre-sentencing custody, the youth justice court should normally use option (b) outlined above. This approach best preserves the concept that the young offender should serve two-thirds of the sentence in secure custody. The pre-sentencing custody should be credited against the custodial portion of the sentence, with the community supervision portion of the sentence to remain intact.

[11] The sentencing judge does exceptionally have the discretion to use option (a) in appropriate cases, where that approach would be more consistent with the sentencing principles in the Act, given the circumstances of a particular young offender. Since the sentencing judge can, in exceptional circumstances, give no credit for pre-sentencing custody, it follows that there must remain a similarly wide discretion to decide how pre-sentencing credit should be recognized. Secondly, while this global approach might result in the young offender serving a longer time in custody, that flexibility should be maintained to ensure that a sentence suitable for the particular circumstances of the young offender can be imposed. In some cases, this might be necessary to ensure that the young offender has access to programming, which is important for rehabilitation. Thirdly, the pre-sentencing custody may have resulted because the young offender was in custody on other charges, or for reasons unrelated to the offence presently before the court.

[183] Regarding the credit, if any, that should apply for the time H.M. spent on bail, at ¶ 23-29 of R. v. Downes, (2006) 79 O.R. (3d) 321 (C.A.), Rosenberg J.A. discussed the different rationale for applying a credit for time spent in pre-sentence custody, versus a credit for pre-sentence time spent on bail, even when one is under stringent conditions such as house arrest.

[184] Rosenberg J.A. began by writing that it is well established that an offender should be given credit for pre-sentence custody. The rationale comes from the Criminal Code and from judicial recognition about the conditions under which it is served. But Rosenberg J.A. said that these rationales do not readily apply to time spent on bail for three reasons.

[185] First, there is no statutory provision that directly addresses the issue. Second, even the most stringent bail conditions, tend to allow the offender to work, attend school and medical appointments, conduct religious worship and tend to personal needs. And third, the impact of the bail conditions cannot be assumed. On the other hand, stringent bail conditions, especially house arrest, represents and infringement of liberty, inconsistent with the presumption of innocence.

[186] At ¶ 33-34, Rosenberg J.A. held that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, there will be variations in its potential impact and the attendant circumstances may dictate that little or no credit should be given for pre-sentence house arrest.

[187] The sentencing judge must state why he or she has decided not to take pre-sentence house arrest into account. The Court should not adopt a rigid formula since sometimes, the terms of the house arrest may impinge very little on the offender's liberty. For others, the accused may find himself confined to a small space, cut off from family and friends and unable to obtain employment.

[188] At ¶ 37, Rosenberg J.A. summarized the applicable principles as follows:

(a) time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor;

(b) as such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence;

(c) the failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle;

(d) the amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply;

(e) the amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest, the stringency of the conditions, the impact on the offender's liberty, and the ability of the offender to carry on normal relationships, employment and activity;

(f) where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[189] H.M. did not call much evidence as to the conditions of either his detention or his bail.

[190] Nevertheless, I am mindful that H.M. is a young person. The conditions imposed on him were restrictive. It is not disputed that after his release, H.M. was still prohibited from going to school until into the fall, and even after that, his freedom was still restricted in that he was allowed out on his own, only for limited hours to get to and from school (apart from the programming). He had otherwise to rely on his mother to go out in the community. The mother had other commitments. And H.M. was deprived of the use of a cell phone. And I am mindful that H.M. was fully compliant with the conditions imposed on him.

[191] In arguing that H.M. should receive little to no credit, the Crown submits, in part, that it already consented to relax the conditions once, and after that, it was prepared to do so further.

[192] I do not place much weight on this submission.

[193] Relaxing the bail conditions to permit H.M. to go to school was appropriate, and ought to have been done. H.M.'s school attendance is important, both in terms of helping him with his cognitive issues, but also it is important to foster his reintegration and rehabilitation.

[194] I further note that no other variation was actually consented to, or implemented, so I would not place weight on the Crown's statement of its willingness to have done so, after the fact. In fact, when the issue was raised at the attendance before me, that I have already referred to, the Crown told the Court that it would be seeking a custodial sentence in expressing its unwillingness to consent, at least as of that day. In saying that, I do also acknowledge that I was told, that day, that the issue of an additional bail variation had not been previously raised by defence counsel with the Crown.

[195] In any case, counsel for the Crown supplied me with a number of cases in which the credit for pre-trial bail went as high as 28%. The Crown's alternative submission is that H.M. should get no more than 25% if the Court intends to credit H.M.

[196] Based on the submissions and the circumstances of this case, I will award H.M. a credit of 1.5 to 1 for the pre-sentence custody. This means he will receive a credit of 9 days.

[197] I will award him 25% for 16 months of time that he spent on bail. This means that he will receive a further credit of approximately 4 months, ie. approximately 120 days.

[198] In total, therefore, H.M. shall receive a credit of 129 days.

[199] Because I am imposing an sentence of deferred custody and supervision, which will be served in the community, as opposed to custody and then supervision in the community, the discussion about how the credit should be applied in R. v. T. (D.M.) is not entirely applicable.

[200] As such, and in any event, I would credit the 129 days towards the 6 months of deferred custody and supervision.

PART IV: CONCLUSION

[201] Based on the foregoing, I sentence H.M. as follows:

Deferred Custody and Supervision and Terms and Conditions

(a) For the next 6 months, which to be clear I am calculating to be 180 days, H.M. shall serve a sentence of deferred custody and supervision in the community. However, H.M. shall receive a credit of 129 days applied towards the 6 months, which means he shall serve the remaining 51 days on the following terms and conditions;

(b) H.M. shall keep the peace and be of good behaviour;

(c) H.M. shall appear before the youth justice court when required by the court to do so;

(d) H.M. shall report to the provincial director immediately upon the release of this Judgment, and then he shall be under the supervision of the provincial director;

(e) H.M. shall inform the provincial director immediately upon being arrested or questioned by the police;

(f) H.M. shall report to the police, or to any named individual, as instructed by the provincial director;

(g) H.M. shall reside with his mother, or at such other address that the provincial director approves of. H.M. shall be amendable to the rules of the home;

(h) H.M. shall advise the provincial director of his address of residence and report immediately to the clerk of this court or to the provincial director any change in that address, in his normal occupation, including employment, vocational or education training and volunteer work, in his family or financial situation and any other change that may reasonably be expected to affect his ability to comply with the conditions of this order;

(i) H.M. shall not possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as needed for, and while at school, work or for culinary purposes;

(j) H.M. shall comply with any reasonable instructions that the provincial director considers necessary in order to prevent a breach of any condition or to protect society;

(k) H.M. shall attend school and/or seek and maintain suitable employment;

(l) H.M. shall attend any counselling, assessment or treatment as directed by the provincial director;

(m) H.M. shall remain in his residence between the hours of 10:00 pm and 6:00 am, except for a medical emergency, unless in the presence of his mother or another adult designated in writing by his mother, for a purpose approved of in advance by his deferred custody and supervision supervisor;

(n) H.M. shall not attend at, or within 100 meters of 200 Wellesley Street East;

(o) H.M. shall not have any direct or indirect contact with any of the other three persons who were arrested at the same time as he was on June 14, 2018. They are named by initials in the Judgment of June 5, 2019;

(p) H.M. shall execute any releases as required by the provincial director so that the provincial director may monitor H.M.'s compliance with any of these terms;

(q) H.M. shall be advised by the Court that if he breaches any of these conditions, he risks serving some or all that remains of the sentence at the time of the breach in a custodial facility;

Probation and Terms and Conditions

(r) Following the completion of the deferred custody and supervision portion of the sentence, H.M. shall be placed on probation for a period of 12 months on the following terms;

(s) H.M. shall keep the peace and be of good behaviour;

(t) H.M. shall appear before the youth justice court when required by the court to do so;

(u) H.M. shall report to a probation officer within 72 hours of completion of the deferred custody and supervision order, and thereafter as required;

(v) H.M. shall reside with his mother, or at such other address that the provincial director approves of. H.M. shall be amendable to the rules of the home;

(w) H.M. shall advise the provincial, the clerk of this court or the youth worker assigned to this case of any change of address, or his place of employment, education or training;

(x) H.M. shall attend school and/or seek and maintain suitable employment;

(y) H.M. shall not possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as needed for, and while at school, work or for culinary purposes;

(z) H.M. shall attend any counselling, assessment or treatment as directed by the provincial director;

(aa) H.M. shall not attend at, or within 100 meters of 200 Wellesley Street East;

(bb) H.M. shall not have any direct or indirect contact with any of the other three persons who were arrested at the same time as he was on June 14, 2018. They are named by initials in the Judgment of June 5, 2019;

(cc) H.M. shall execute any releases as required by the provincial director so that the provincial director may monitor H.M.'s compliance with any of these terms;

Community Service

(dd) In addition, H.M. shall complete a further 40 hours of community service that shall be part of a program approved by the provincial director and for an organization which has agreed to its performance. The community service shall commence no later than February 23, 2020 and shall be completed at the rate of not less than 5 hours per month;

Weapons Prohibition and DNA

(ee) Pursuant to section 51 of the YCJA, H.M. shall be prohibited from possession any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for 5 years from the date of this Order, except as needed for, and while at school, work or for culinary purposes;

(ff) There shall be an order in the proper form for the taking of DNA samples from H.M. pursuant to section 487.051 of the Criminal Code;

Release of Section 34 Report

(gg) The section 34 report shall be released to the provincial director. The provincial director may, in turn, release it to any person or program providing direct rehabilitative or treatment programming to H.M. Any further dissemination is strictly prohibited by the YCJA unless a further court order is sought.

(hh) The portion of the section 34 report that addresses H.M.'s cognitive and academic needs is to be released to H.M.'s school officials. H.M. himself may release a copy of this part of the report to anyone providing educational planning or programming.

(ii) The probation order and community service order shall run concurrently, and consecutive to the deferred custody and supervision order. The entire sentence is concurrent on each count for which there was a finding of guilt.

[202] I wish to thank both counsel for their helpful written submissions, their Books of Authority and their helpful oral submissions.

Released: October 31, 2019

Signed: Justice Alex Finlayson

[1] The Crown seeks both the weapons prohibition and the DNA Orders. Regarding the DNA, H.M. did not make submissions about the impact of such an order on his privacy and security of the person. I have decided to grant these orders based on the serious nature of the offences for which H.M. was found guilty, and the circumstances surrounding their commission. I also grant this order for reasons of community safety. Given that H.M. worked before in a kitchen and he has a dream to become a mechanic, in the interest of clarity, I have made an exception for school, work or culinary purposes. I have done so in the event that any such tools might be considered prohibited.