Court Information

Citation: R. v. Hornick, 2019 ONCJ 817

Court File No.: 4815-998-18-Y50409-00

Date: August 8, 2019

Court: Ontario Court of Justice – Youth Justice Court

Before: The Honourable Madam Justice A. Tuck-Jackson

Location: Toronto, Ontario

Parties

Crown: Her Majesty the Queen

Counsel for the Crown: S. Hobson, Esq.

Young Person: Zachary Hornick

Counsel for the Young Person: D. Maubach, Esq.

Hearing Information

Heard: In Writing

Protected from Publication: By Section 110 of the Youth Criminal Justice Act

Court Proceedings

Pre-Sentencing Matters

The Crown and defence counsel addressed preliminary matters regarding the young person's mother's request to meet with her son before sentencing. The court arranged for the mother to observe the proceedings remotely via video feed from a viewing room, and the young person agreed to meet with his mother at a detention facility following sentencing.

The court also addressed seating arrangements in the courtroom to accommodate the deceased's family, probation officers, and other participants.

Sentencing Decision

Introduction

Zachary Hornick appears before the Court for sentencing following a guilty plea to the offence of Second Degree Murder.

This offence occurred during a tragic confrontation between Mr. Hornick and Kafi Abshir on August 24th, 2018. At the time of his death, Mr. Abshir was 30 years of age. Mr. Hornick was 17 years of age.

Mr. Hornick appears before the Court as a "young person," as contemplated by s.2 of the Youth Criminal Justice Act, herein referred to as the YCJA.

On May 14th, 2019, and pursuant to s.64(1) of the YCJA, the Crown provided Mr. Hornick with written notice of its intention to seek an adult sentence in relation to this offence: Exhibit 7A.

That same day, and pursuant to s.71 of the YCJA, Mr. Hornick, through his Counsel, provided the Crown with written notice that he would not oppose the Crown's application: Exhibit 7B.

It is the joint recommendation of the parties that in accordance with paragraph 745.1(c) of the Criminal Code, I sentence Mr. Hornick to life imprisonment with no eligibility to apply for parole for seven years.

The parties also jointly recommend that pursuant to paragraph 76(1)(c) of the YCJA, I order that Mr. Hornick serve this sentence in a penitentiary.

By way of ancillary orders, I must impose a lifetime weapons prohibition, pursuant to s.109(3) of the Code and authorize the taking of a DNA sample from Mr. Hornick, pursuant to s.487.05(1) ss.1 of the Code. Finally, pursuant to s.491 of the Criminal Code, the Crown seeks a forfeiture order in relation to the knives that the police seized from the crime scene. Mr. Hornick does not oppose this request.

A. Circumstances of the Offence

Three sources of evidence provide the foundation for my findings of fact as to what transpired in the early morning of August 24th, 2018. They are as follows:

1. The Agreed Statement of Fact: Exhibit 1;

2. The video-recorded interview of Mr. Hornick by Detective Brandon Price of the Toronto Police Service's Homicide Squad, that occurred during the early morning hours of August 25th, 2018: Exhibits 8A and 8B; and

3. The video surveillance footage that captures the interaction between Messrs Hornick and Abshir: Exhibits 9A and 9B.

During their submissions of July 29th, 2019, the parties jointly provided guidance as to how I could reconcile certain apparent inconsistencies in the narrative as disclosed by these three sources of evidence.

Background to the Offence

It is common ground between the parties that there was, in fact, no known connection between Mr. Hornick and Mr. Abshir. However, a constellation of factors led Mr. Hornick to harbour a misconceived belief that there was a link between the two individuals, and that mistaken belief fueled his motive to take Mr. Abshir's life.

Some 12 to 18 months prior to the summer of 2018, someone set up Mr. Hornick to be the victim of a robbery at 5 Bellevue Crescent, an address associated to an apartment building in northwest Toronto. It is close to the intersection of Weston Road and Lawrence Avenue West. At the conclusion of that robbery, his assailants left him wearing nothing more than a T-shirt and boxer shorts. The incident was a source of embarrassment for him. Mr. Hornick was intent on seeking revenge on the individual who had set him up.

The Offence

For no apparent reason, Mr. Hornick decided to seek his revenge during the early morning hours of August 24th, 2018. He armed himself with a dagger and a machete. He did not have his handgun with him as the person with whom he was sharing possession of it happened to have it that morning.

He left Richmond Hill and was driving around upset. From midnight onwards, Mr. Hornick ingested five tablets of Xanax, smoked marijuana, and consumed half of a 26-ounce bottle of Appleton rum. He ingested more illicit substances than normal with a view to suppressing any possible aspect of conscience that would discourage him from carrying through with his intention.

As he explained this choice to Detective Price, he "wanted to get rid of that feeling because [he] really wanted to get revenge for what [had] happened". Simply put, he wanted to render himself emotionless.

Not long before five o'clock in the morning, Mr. Hornick arrived in the area of 5 Bellevue Crescent. He parked in the adjacent lot. He deliberately reversed into the parking spot, left the engine running, and ensured that the front wheels were turned towards the direction in which he knew he would ultimately flee. He left 14-year-old J.P., an acquaintance, sitting in the front seat.

Mr. Hornick walked towards the building and came upon Justin Nuila-Fragoso and a second unidentified individual. The three individuals spoke briefly. Mr. Nuila-Fragoso knew Mr. Hornick, though not well. Mr. Hornick disclosed that he had previously been robbed in the area and asked the pair for the names and/or unit numbers of the persons he believed were involved in the incident. Neither Mr. Nuila-Fragoso nor the unidentified individual offered any identifying information.

Kafi Abshir came upon the trio unexpectedly. Mr. Hornick and Mr. Abshir spoke briefly, and during that conversation, Mr. Hornick came to learn that Mr. Abshir was from the Dixon neighbourhood. Mr. Hornick asked Mr. Nuila-Fragoso if Mr. Abshir was the guy who had robbed him. Mr. Nuila-Fragoso confirmed that he was not. During further conversation with Mr. Abshir, Mr. Hornick mistakenly formed the belief that Mr. Abshir had, indeed, played a role in the aforementioned robbery of Mr. Hornick.

After Mr. Abshir had hugged and/or shook the hand of the unidentified individual, the latter together with Mr. Nuila-Fragoso walked away from the area, leaving Messrs. Hornick and Abshir in the area near the front of the building.

Mr. Hornick headed towards the door that accesses the stairwell of the apartment building. Mr. Hornick attempted to lure Mr. Abshir into the stairwell with the promise of marijuana. When these efforts proved fruitless, Mr. Hornick initiated his unprovoked attack on Mr. Abshir outside of the building.

Mr. Hornick retrieved his dagger from his waistband and, with it, inflicted multiple stab wounds to Mr. Abshir's torso. He ignored Mr. Abshir when the latter begged him to stop the attack. As Mr. Abshir attempted to crawl away from Mr. Hornick or kick at him in self-defence, the latter swatted him with his machete. Mr. Abshir was able to get to his feet and run away from Mr. Hornick, but collapsed onto the pavement a short distance away.

Mr. Hornick chased down Mr. Abshir, subdued him, straddled him, and, to use Mr. Hornick's own words, "executed a final blow with the dagger through Mr. Abshir's heart to 'finish him'". As Mr. Hornick put it, he was, "just so angry".

Once everything went quiet, Mr. Hornick discarded the dagger and the machete proximate to where Mr. Abshir lay dying and fled to the aforementioned car.

Flight and Subsequent Robbery

The car doors were locked. He gained entry by smashing one of its windows. Mr. Hornick then drove north to York Region with J.P. Mr. Hornick knew that he would need funds to support his flight from the authorities and, thus, decided to commit a robbery.

At about 6:30 a.m., Mr. Hornick and J.P. parked outside of the kiosk associated with the Canadian Tire Gas Bar located at 14721 Yonge Street in Aurora. Mr. Hornick entered the kiosk with a view to casing it out. He spoke briefly with the kiosk's sole employee. Mr. Hornick returned to the car and repositioned it.

J.P. then entered the kiosk and demanded cash and cigarettes. When J.P. pulled out a butcher knife from the interior of his sleeve, the clerk handed him $100.00 from the till. J.P. fled from the kiosk when a customer interrupted the robbery in progress.

Mr. Hornick and J.P. then attended the latter's home where Mr. Hornick with the assistance of an accelerant, burned the clothes that he had been wearing when he killed Mr. Abshir. In addition to destroying this evidence of his role in Mr. Abshir's murder, he took steps to clean up the blood from the exterior of the getaway vehicle.

Arrest

Several hours later, York Regional Police's Hold-Up Unit located Messrs Hornick and J.P. sitting in line at a drive-thru associated with a McDonald's restaurant in Newmarket. A knife consistent in appearance with the one that J.P. had brandished earlier was located inside of the car.

Remorse

Mr. Hornick has pled guilty to this offence. That plea in and of itself evinces a degree of remorse for his actions. It is important to note that during the preparation of the most recent Pre-Sentence Report, Mr. Hornick shared with Cheryl White, his Probation Officer of more than two-and-a-half years, and of the few persons in authority to whom Mr. Hornick has consistently shown respect, his feelings of remorse for the serious offence that took place.

As a further indication that Mr. Hornick has been grappling with the enormity of his actions, it must be noted that several weeks following Mr. Abshir's death, Mr. Hornick requested to meet with a psychiatrist at the Peninsula Youth Centre as he was experiencing what Ms. White described as, "mental health disturbances" relating to the offence committed.

B. The Circumstances of Zachary Hornick

It is imperative to endeavour to understand an individual's personal circumstances before passing judgment on the choices and actions that underlie a criminal offence for which he or she is responsible and to be sentenced. The greater the gravamen of the offence, the greater the need to gather and analyze as much information from as many diverse sources as is reasonably practicable. This is the case by reason of the role that an individual's personal circumstances can serve in reducing the moral blameworthiness for his or her offence or otherwise operating to mitigate the appropriate sentence thereby tempering the judicial response on behalf to the community to a serious offence.

In Mr. Hornick's case, I have relied upon the following sources of information:

1. The mental health assessment of Dr. Julia Vinik of the Centre for Addiction and Mental Health's Youth Justice Assessment Clinic dated March 16th, 2017, and conducted pursuant to s.34 of the YCJA: Exhibit 5. Of note, in relation to the instant proceeding, Mr. Hornick refused to participate in a new mental health assessment and in the result, I did not order that one take place;

2. The Pre-Sentence Reports of Cheryl White, dated July 18th, 2019, and March 10th, 2017, and prepared pursuant to s.640 of the YCJA: Exhibits 4A and 4B, respectively;

3. The Placement Report of Cheryl White, dated July 18th, 2019, and prepared pursuant to s.76(4) of the YCJA: Exhibit 6;

4. The audio-recorded and written comments of Delores Gray, dated July 29th, 2019: Exhibits 10A and 10B, respectively; and

5. The entries on Mr. Hornick's Youth Court record together with police synopses and transcripts of court proceedings that summarize the previous criminal offences of which Mr. Hornick has been found guilty: Exhibits 3 and 3A, respectively.

These materials, in addition to the content of Mr. Hornick's interview with Detective Price, reveal the following about the young man whom I am about to sentence.

1. Personal and Family Background

Zachary Hornick is now 18 years of age. As noted above, he was 17 when he took Mr. Abshir's life. Mr. Hornick is the only child of Brian Hornick and Delores Gray. He was born in Toronto. Mr. Hornick is bi-racial. His mother is of Jamaican-Canadian heritage and his father is of European-Canadian heritage. According to both of his parents, Mr. Hornick has struggled with his racial identity and how that impacts his self-portrayal.

Parental Separation and Early Instability

Mr. Hornick's parents divorced when Mr. Hornick was very young. Both of Mr. Hornick's parents are well-educated individuals and well-intentioned parents. In spite of these positive factors, Mr. Hornick endured a childhood and early adolescence that was marked by instability as numerous adults who held positions of trust and authority in relation to him transitioned through his life.

According to various accounts, Mr. Hornick's mother has significant un-addressed or under-addressed mental health issues which, at times, have rendered it unsafe for her son to be in her care. Child Protection Services became involved with the family for a very short period of time immediately following Mr. Hornick's birth and became re-involved when he was about 14 months old.

Ms. Gray raised Mr. Hornick when he was a toddler. Family Court ultimately awarded custody of Mr. Hornick to his father who raised his son, largely in the Mississauga area, until Mr. Hornick was 12 years of age, in a financially stable environment. During this timeframe, Mr. Hornick's access to his mother occurred on weekends, though was somewhat sporadic.

It is apparent from all of the evidence that I have reviewed that each of Mr. Hornick's parents is critical of the other's view of what is best for their son and, to a large degree, blame each other for the risk factors that have placed their son in his current legal predicament.

Relationship with Father

Mr. Hornick Sr. described his son as an affectionate child during their early years together. They spent a great deal of time together. Indeed, Mr. Hornick Senior described the pair as "inseparable". As early as the age of seven, Mr. Hornick Sr. found it increasingly difficult to secure his son's compliance with the rules. According to Mr. Hornick, he did not want to be told what to do from a young age and, in the result, did not comply with parental rules and expectations.

Of note, Mr. Hornick Sr. became involved with his current wife when Mr. Hornick was about seven years old. They presently reside in Cambridge. Mr. Hornick and his step-mother do not get along with one another. Mr. Hornick perceives that his step-mother does not like him. Of note, Mr. Hornick blames his step-mother for, inter alia, influencing his father's decision to let him remain in custody pending outstanding criminal charges, a choice that resulted in his long-term placement in the care of Child Protection Services when he was a young teen.

Entry into Child Protection System

By the age of 11, Mr. Hornick spent a great deal of time outside of the house with his peers while consuming marijuana. He would lie about his whereabouts, rendering it difficult for his father to monitor his activities. It was at his father's request that, in September of 2013, Child Protection Services became involved with Mr. Hornick. He was 12 years of age.

Mr. Hornick Sr. simply could not manage his son's behaviour. It would appear that Ms. Gray faced the same challenges in managing their son's behaviour. Indeed, there were reports that Mr. Hornick was being physically aggressive towards his mother.

At that time, Mr. Hornick entered foster care on the strength of a temporary care agreement for several months. He returned to live with his father and step-mother, but his challenging behaviour, including physical aggression at school and within the community at large, involvement in drug trafficking, running away from home and truancy, was escalating in degree and frequency. There was also no improvement in his behaviour when Mr. Hornick would stay with his mother.

Commencing in November of 2015, when Mr. Hornick was 14, he entered the care of the Family and Children's Services of the Waterloo Region. Initially, he was the subject of another temporary care agreement and then became a ward of the Society.

In 2017, and over the objection of Mr. Hornick and his mother, the agency initiated an application for Crown wardship. However, on December 1st, 2017, when Mr. Hornick was 16, his request to terminate his involvement with the Child Welfare Agency was granted.

Group Home Placements

Mr. Hornick did not adjust well to his placements in a variety of group homes. His stay at each location lasted for mere months until his oppositional behaviour would drive a new placement. Indeed, between November of 2015 and March of 2017 he had lived at five different placements. On his own account, he argued with staff, did not follow the rules, got into physical altercations with peers and staff, and ran away from his placement locations. Reports I have reviewed indicate that he was demonstrating a pattern of bullying and intimidation of the peers with whom he lived.

As noted in Dr. Vinik's report at page six, Mr. Hornick has a very negative view of the involvement of Child Protection Services in his life. In the result, he has felt no sense of obligation to comply with their rules and expectations.

Impact on Relationships

Having regard to the years of parental, residential, educational, social, and emotional instability that Mr. Hornick has experienced, it is not surprising that Mr. Hornick's relationships with others, including his parents, is best described as complex.

Of great concern is the adverse impact that this period of instability appears to have had on Mr. Hornick's capacity to form and maintain relationships of any nature. In this regard, Mr. Hornick's observations as conveyed to Dr. Vinik, and which appear at page six of her report, are apt yet chilling:

Zachary indicated that he was upset when he was placed in the care of the Child and Family Services but that he had to "get over it". He added that this taught him a life skill, specifically to care only about himself. Zachary spoke about peers and adults who came in and out of his life during the last 18 months. Therefore, he stated that he learned not to get attached to anyone.

The primary worker who oversaw Mr. Hornick's needs while he was at the Hanrahan Group Home in Brampton commencing in the fall of 2016 made a similar observation as to Mr. Hornick's outlook. She advised Mr. Hornick's Probation Officer that Mr. Hornick appears to have the mindset of wanting to take care of himself, adding that he seems to be apprehensive about trusting others to assist him.

Peer Relationships

With respect to peer associations, Mr. Hornick Sr. has observed that from a young age, his son had difficulties maintaining friendship. As a result, he drifted towards relationships with individuals whom his father described as "outcast kids". When relationships with these persons fell apart, Mr. Hornick was, according to his father, left in a state of loneliness.

With respect to the role, if any, that peers played in influencing his behaviour, Mr. Hornick reported in 2017 to Dr. Vinik that, "no one has any influence on him at all". Mr. Hornick made a similar comment to his Probation Officer in 2017, noting that he makes his own decisions and acts independently. When asked by Dr. Vinik whether some of his peers are engaged in criminal activities, Mr. Hornick indicated that he does not associate with "criminals" adding, "...they follow me".

In the context of exploring potential evidence of trauma symptomology during the same assessment, Mr. Hornick reported to Dr. Vinik that, "he does not get scared even when his life is in danger".

While there is no evidence before me to suggest that Mr. Hornick is a member of or in any associated with, a criminal organization as contemplated by the Criminal Code, various sources indicate that he does appear to glorify what is sometimes referred to as a gang lifestyle. Furthermore, during his statement to Detective Price, Mr. Hornick acknowledged that he "affiliates with" gang members.

2. Education and Employment

It is important to note that Mr. Hornick has his Grade 12 diploma. This is an important achievement and reflects Mr. Hornick's overall interest and value in formal education. He completed the vast majority of his credits during various periods of detention pending the outcome of outstanding criminal charges.

Mr. Hornick struggled with the inter-related areas of academic progress and behavioural self-regulation as early as the age of five. These behavioural challenges, particularly in the areas of oppositionality, a lack of awareness of his impact on others, impulse control and inattention continued through elementary, middle and secondary school, and adversely impacted on his academic and social development.

By the age of 14, he had been expelled from all schools in Waterloo Region District School Board. At the age of 11, Mr. Hornick met the criteria of a learning disability. During the course of Dr. Vinik's mental health assessment, a cognitive and academic assessment was commenced but could not be completed. From the data that was collected, Dr. Vinik concluded that, as of 2017, Mr. Hornick's cognitive profile appeared to be largely unchanged from what was apparent four years earlier.

With the exception of a short stint working for Canadian Tire at the age of 15, Mr. Hornick has not been employed. During his 2017 mental health assessment, he reported that he does not enjoy working. He was, at that time, coy about his involvement in drug trafficking.

3. Substance Abuse

As noted above, Mr. Hornick's substance abuse has negatively impacted various sectors of his life. Mr. Hornick first tried marijuana at the age of seven or eight. By the age of 10 or 12, he was consuming it daily. It bears mentioning that Mr. Hornick reported to his Probation Officer that as he grew older, he took advantage of his mother during visits by stealing her marijuana and money. Mr. Hornick's contextual account of his marijuana consumption led Dr. Vinik to conclude that Mr. Hornick was likely self-medicating to address his ADHD symptoms.

With a view to controlling his impulsivity, at the age of 12 Mr. Hornick began to consume codeine daily in the form of "Lean", a drink that is comprised of cough syrup, soda pop, and candy. Commencing at the age of 14, he consumed Xanax daily, or every second day.

During Dr. Vinik's assessment, Mr. Hornick outlined how he would combine substances. The following passage appears at pages 15 to 16 of Dr. Vinik's 2017 report and was regrettably predictive of the tragedy that brings Mr. Hornick before the Court:

Zachary reported that he usually uses Xanax along with codeine, marijuana, and some alcohol as it allows him to have a better time at parties and with girls.... Zachary stated that he spends several hours on Xanax use, continues to use it even though it causes his memory problems, and was under the influence when he engaged in risky activities, like getting into physical altercations. Zachary did not consider his use of these three substances problematic and was not open to services in order to reduce his use.

Mr. Hornick first consumed alcohol at the age of 10. While he does not drink frequently, he does consume a very large amount of alcohol when he does imbibe. In contrast to his views regarding illicit drugs, in 2017 Mr. Hornick was receptive to psychoeducation about alcohol abuse. It bears mentioning, that to varying degrees, Mr. Hornick's parents and his paternal grandparents have struggled with substance use.

4. Mental Health

With respect to mental health diagnoses, Mr. Hornick met with a child psychiatrist at the age of eight. No diagnosis was made at that time. His work with the psychiatrist arose when, between 2004 and 2010, Mr. Hornick Sr. sought support from the Peel Children's Centre. The family's involvement with the Centre was intermittent as a result of Mr. Hornick's unwillingness to fully engage in counselling. At some point, though it is unclear when on the material I have reviewed, it was determined that Mr. Hornick met the criteria of Attention Deficit Hyperactivity Disorder. He responded well to medication for this disorder, but failed to take it consistently. In 2012, during the aforementioned psychoeducational assessment, concerns about self-harm were noted. According to Dr. Vinik's report, as of 2017, Mr. Hornick continued to meet the criteria for a diagnosis of ADHD. In light of his reports of substance use, Dr. Vinik further concluded that Mr. Hornick met the criteria for the diagnoses of Cannabis Use Disorder, Opioid Use Disorder, and Anxiolytic Use Disorder. Finally, Dr. Vinik also concluded that Mr. Hornick's pattern of rule violations is consistent with a diagnosis of Conduct Disorder, and that he meets the criteria of a diagnosis for Oppositional Defiance Disorder. In regard to the latter diagnosis, Dr. Vinik relied upon Mr. Hornick's longstanding history of significant struggles with aggression and oppositional behaviour both at school and at home. Of note, and of concern to the Court, Mr. Hornick reported to Dr. Vinik that he tends to aggress physically either towards people or objects when angry. He indicated that he regarded his reaction as "normal," explaining that, "anyone would do the same".

Presentation and Affect

As early as 2017, mental health professionals and service providers observed that Mr. Hornick presents as a highly guarded, quiet youth with a flat affect. In her March 2017 report, at pages three and four, Dr. Vinik observed that, "it was quite apparent that [Mr. Hornick] was at times monitoring his responses carefully" and, in particular, that he was attempting to manage his responses in a manner that they would appear positive. Ms. Cheryl White, who has served as Mr. Hornick's Probation Officer since January of 2017, shares this view. At page 4 of her report, Dr. Vinik notes:

Zachary was at times quite effortful in attempting to appear positively for the purpose of the assessment. He at times actually stated that his initial answers would make him look bad, so he withdrew that information and changed his answers to be more positive. Zachary's probation officer also reported that he appears to manage his answers, which makes it difficult to ascertain whether he is genuine in his responses.

Lack of Empathy and Accountability

There are other aspects of Mr. Hornick's presentation that are of tremendous concern to the Court. It is noted in Dr. Vinik's report that school staff who had interacted with Mr. Hornick have found that he expressed little guilt or empathy after wrongdoing. Similarly, in her 2017 Pre-Sentence Report, Ms. White observed that Mr. Hornick has difficulty holding himself accountable for his actions as well as understanding how his actions impact others. Further, during his interview with Dr. Vinik, Mr. Hornick at the age of 15, advised that he was striving to be a person who "demands respect from others and would not hesitate to protect himself and peers". Overall, in 2017 Dr. Vinik found that Mr. Hornick appeared to identify with various anti-social values and to present with some level of pro-criminal attitudes.

Risk Assessment

On the strength of the Youth Level of Service/Case Management Inventory, an empirically-validated criminogenic risk/needs measure that provides an estimate of a youth's likelihood for continued behavioural difficulties, Dr. Vinik found Mr. Hornick to be at the high end of the high risk range for continued behavioural difficulties at the conclusion of her 2017 assessment.

5. Life Circumstances at Time of Offence

As noted above, Mr. Hornick was residing in various group home placements commencing in November of 2015 and continuing into the spring of 2017. On March 30th, 2017, his whereabouts became unknown. Between early May of 2017 and early June of 2018, he was detained in custody on various outstanding criminal charges, which I will summarize shortly.

Upon his release from custody in early June of 2018, Mr. Hornick was formally residing with his mother in Aurora, though would often stay with friends or rent a hotel room for the night as a way to cope with the tension and conflict that would arise between them.

To be fair to Mr. Hornick, during his conversations with Ms. White, he expressed compassion towards his mother and the various challenges that she appears to face. During this brief period of co-habitation, Ms. Gray contacted Mr. Hornick's Probation Officer to voice her desire that Mr. Hornick be out of her residence by August 1st of 2018. Mr. Hornick's Probation Officer was, in the weeks that preceded the commission of the offence before the Court, looking to secure appropriate housing for him. During his interview with Detective Price, Mr. Hornick confirmed that he did not really have a place to stay and that he understood that CAS was trying to help him find his own apartment. In the meantime, Mr. Hornick was leading a transient life, engaging in substance abuse, supporting himself not through employment but through drug trafficking. On his own account, he was in the habit of carrying a gun. He proved ineligible to apply for Ontario Works, and about a month prior to his arrest, he applied for a voluntary youth services agreement with the York Region Children's Aid Society with a view to seeking financial support. That application was put on hold as a result of his eventual arrest. To his Probation Officer, he had expressed no interest in making plans to return to school.

Future Plans

As Mr. Hornick looks into his future, it is unclear at this point where or with whom, if anyone, he will live upon his release from custody. Ultimately, he would like to work in the field of construction, but also pursue studies within the trade industry at a college or in the areas of psychology or criminology at a university. He has also advised his Probation Officer that he has a plan towards his rehabilitation which involves focusing on the development of more effective anger management and decision-making skills, and engaging clinical supports to address his mental health needs. Of note, his unwillingness to participate in a mental health assessment pursuant to s.34 of the YCJA in preparation of this sentencing renders it difficult to fully accept as genuine his stated desire to pursue mental health counselling.

2. Conduct While in Detention and Previous Findings of Guilt

A. Conduct While in Detention

Mr. Hornick has been detained in custody since August 24th of 2018. Over the course of the subsequent 10 months he would find himself placed in six different youth detention centres in Ontario.

Initial Detention and Stand-offs

Mr. Hornick was initially placed at the Roy McMurtry Youth Centre in Brampton. On September 1st of 2018, he and three other youths were involved in a stand-off with the staff. It was believed that Mr. Hornick was the aggressor. He refused to follow staff direction, and over the course of 45 minutes, threatened staff and other young persons. The stand-off ended when staff used pepper spray and mechanical restraints to gain physical control over Mr. Hornick.

On September 2nd, 2018, Mr. Hornick was moved to Cecil Facer Youth Centre in Sudbury where he remained for three weeks. Of note, on September 10th, 2018, he instigated an eight-hour stand-off with staff. During the stand-off, Mr. Hornick threatened to initiate a riot and threatened staff members with bodily harm and death. His conduct prompted the deployment of the Crisis Resolution Team.

On September 11th, 2018, Mr. Hornick was transferred to the Peninsula Youth Centre in Fenwick. He continued to display verbal and physical aggression towards peers and staff. On November 7th, 2018, he was involved in an assault on a member of staff at the conclusion of which Mr. Hornick sustained a fractured bone. As a result of Mr. Hornick's ongoing physically aggressive behaviour, he was transferred back to the Roy McMurtry Youth Centre.

Multiple Facility Transfers

Mr. Hornick arrived at that facility on November 16th of 2018 where he remained until November 30th, 2018, when he was transferred to the William E. Haye Youth Centre in Ottawa. Mr. Hornick stayed in Ottawa until he was placed, on the strength of his request, at the Syl Apps Youth Centre in Oakville on December 18th of 2018.

Mr. Hornick remained at the Syl Apps Youth Centre until June 26th of 2019 when he was moved to the Brookside Youth Centre in Coburg. During his placement at the Syl Apps Youth Centre, he continued to display physical and verbal aggression towards his peers. Three of these confrontations resulted in the laying of three separate assault-related charges which remain outstanding before this court, sitting in Milton. More than once he was placed in a unit where he remained alone. Whenever he was integrated back into a regular unit he would engage in intimidating and assaultive activity towards his peers. As a result of his persistent targeting of a particular youth whom Mr. Hornick felt justified in assaulting by reason of the nature of that youth's charges, he was transferred to the Brookside Youth Centre.

Serious Incident and Current Placement

On July 8th of 2019, Mr. Hornick was involved in a serious incident at the Brookside Youth Centre where he was secured in a corridor holding a sharp weapon. He threatened to harm staff with the weapon. He also broke through one door and a window. The severity of the situation necessitated the deployment of the Crisis Response Team, who removed him from the corridor. Earlier that day, he had threatened to take a member of staff hostage in order to facilitate an escape attempt.

On July 9th of 2019, he was transferred back to the Roy McMurtry Youth Centre where he currently remains.

Prior Detention Period (May 2017 – June 2018)

This pattern of aggression and oppositional behaviour within a custodial setting had already established itself when Mr. Hornick was detained in custody between May 2017 and June of 2018. During this timeframe, he was placed at two different detention centres. He was initially placed at the Roy McMurtry Youth Centre. While at this facility he was involved in numerous physical altercations with his peers. In August of 2017, he was involved in a staff assault which resulted in the laying of a criminal charge and his placement in a unit where he remained alone, isolated from his peers and the aforementioned member of staff. In September of 2017, at the age of 16, he embarked on his first stand-off. It lasted for 17 hours. During the stand-off he was observed to be sharpening a weapon while secured in his room. He refused to surrender the weapon and threatened to harm any staff member who chose to enter his room. The incident ended when the Crisis Resolution Team and the Tactical Rapid Response Team entered his room and disarmed him. On October 3rd of 2017, he was transferred to the Donald Doucet Youth Centre in Sault Ste. Marie because, according to his Probation Officer, he was becoming an "imminent" threat to the staff at the Roy McMurtry Youth Centre.

Positive Progress at Donald Doucet

During his initial admission to the Donald Doucet Youth Centre, he was placed on a unit where he remained on his own. On January 22nd, 2018, he was involved in a staff assault which forms the basis of the May 11th, 2018 entry on his youth court record. Towards the end of February of 2018, Mr. Hornick was reintegrated into a regular unit. He performed well in that unit until his release from custody in early June of 2018. He participated in programs that addressed anger management and financial literacy. He spoke daily with his social worker and he learned about Indigenous culture.

Receptiveness to Self-Improvement

With respect to his receptiveness towards self-improvement and addressing his criminogenic risk factors while in detention pending the outcome of this charge, it bears mentioning that Mr. Hornick has demonstrated some degree of promise. While at Syl Apps Youth Centre, Mr. Hornick completed schoolwork independently on his unit until he had achieved all of his outstanding high school credits. He also successfully completed the 40 hours of community service hours that are necessary to earn a high school diploma. Of note, Mr. Hornick was initially resistant to pursuing his studies at Syl Apps Youth Centre, but eventually became highly motivated and determined to complete his remaining high school credits. In addition, he met with a therapist on a weekly basis. Over time, the therapist established a good rapport with Mr. Hornick whom the therapist found to demonstrate a high level of respect towards him. It was believed that he did make therapeutic gains. However, accordingly to the 2019 Pre-Sentence Report, during these therapeutic sessions, Mr. Hornick had difficulty accepting responsibility for his actions and would often "deflect", thereby showing limited insight towards the cause and effect of his behaviours. He also met with a psychologist while at the Syl Apps Youth Centre, but tended towards treating those sessions as an opportunity to vent about his frustrations with his unit.

B. Previous Findings of Guilt

Mr. Hornick's youth court record references offences that he committed between the ages of 14 and 16. This timeframe largely coincides with the period of intense instability when he was under the umbrella of the child protection system. Some entries are far more relevant to the issues for my consideration in this sentencing than others.

November 2015 – Assault and Arson

On November 2nd and 4th of 2015, at the age of 14, Mr. Hornick assaulted one J.M., a young person. On November 2nd at 3:30 in the afternoon, Mr. Hornick approached J.M. on a street in Cambridge. He grabbed J.M. by the T-shirt with one hand and with the other, struck him in the face with a closed fist. At the prompting of a passerby, Mr. Hornick released his grip on J.M. I have no information as to Mr. Hornick's motive for the assault. The incident was reported to the police later the same day.

On November 4th of 2015, again at around 3:30 in the afternoon, Mr. Hornick approached J.M. outside of a secondary school in Cambridge. When J.M. attempted to flee from Mr. Hornick, the latter followed him and called out words to the effect of, "You called the police. Not cool." In front of a nearby elementary school, Mr. Hornick struck J.M. in the head five times with a closed fist, then hit him twice, and kneed him once in the back. Once again, a passerby intervened to stop the assault. J.M. did not sustain any significant injury during either incident.

Just over a week later, on November 11th of 2015, Mr. Hornick committed arson within, and damaged the windows of a school. On the day in question, Mr. Hornick, together with an accomplice, entered a secondary school. They entered an unoccupied male washroom and, with a lit cigarette started a fire in the washroom's garbage pail. While the accomplice fled from the scene, Mr. Hornick alerted a student to the fire's existence. The fire was easily extinguished. No one was hurt. The only resultant damage was to the garbage bin. Approximately two hours later, Mr. Hornick and the same accomplice returned to the school. At that time, Mr. Hornick and the accomplice smashed three of the school's windows with bricks. The police arrested Mr. Hornick in relation to these events on November 13th. At that time, he was found to be in possession of a knife, though there was no evidence to suggest that he intended to use it as a weapon.

On March 9th of 2018, Mr. Hornick pled guilty to assault, arson, and mischief to property of a value not exceeding $5,000.00 in relation to these incidents before Justice Latimer of this Court sitting in Kitchener. His Honour imposed a 30-day custody and supervision order, where the first 20 days of the sanction were to be served in a secure custody setting, followed by 10 days of community supervision in relation to the count of arson. In relation to the counts of assault and mischief to property of a value not exceeding $5,000.00, His Honour imposed a 12-month period of probation to be served concurrently. One term of that probation order prohibited Mr. Hornick from possessing a weapon, as defined by the Criminal Code.

January 2016 – Breach of Undertaking

On January 6th of 2016, at the age of 14, Mr. Hornick violated a term of his Undertaking given to a Justice that required that he abide by the rules and regulations of the Hatsoff Residence, a group home in Dundas, Ontario. He left a classroom setting for a period of time without permission after engaging in disruptive behaviour and, thereby, violated this condition. On July 6th of 2016, he pled guilty to this offence. The presiding judge of this Court, sitting in Hamilton, imposed nine months of probation and 50 hours of community service.

July and August 2016 – Breaches of Recognizance

On July 9th of 2016, at the age of 15 and while the subject of a probation order, Mr. Hornick violated a term of his recognizance of bail which required that he be amendable to the routine and discipline of the Hardy Geddes House, a group home in London. On that day, he was disruptive within the residence by overturning tables and chairs and, thereby, violated this condition. Just over a month later, on August 16th of 2016, Mr. Hornick failed to observe his 11:30 p.m. curfew and, indeed, had not returned to his residence by the following morning. This also placed him in violation of the aforementioned term of his judicial interim release order. On November 14th of 2016, Mr. Hornick pled guilty to two Counts of failing to comply with a term of a recognizance of bail before Justice McKay of this Court, sitting in London. He received a sentence of 12 months of probation on each count, to be served concurrently.

August 2016 – Robbery

On August 14th of 2016, at the age of 15, and while the subject of a probation order, Mr. Hornick robbed a store clerk in a Petro Canada kiosk located at 695 Lawrence Avenue West, in Toronto, at knifepoint. At 9:00 p.m., Mr. Hornick entered the kiosk and asked the lone employee for some cigarettes. When the clerk turned away from him, Mr. Hornick retrieved a knife from his backpack and brandished it in the victim's direction. When the clerk turned back towards Mr. Hornick, the latter advised that he was robbing the former. Mr. Hornick fled the store once the clerk advised him that he was, "on camera". At the material time, Mr. Hornick was under the influence of alcohol. The offence was impulsive in nature and not the product of any planning. Several hours following the robbery, the police placed Mr. Hornick under arrest. His knapsack contained the knife he had used in the offence. At the material time, he was the subject of an Undertaking given to an Officer-in-Charge, and a recognizance of bail, each of which prohibited him from possessing, inter alia, lighters. At the time of his arrest, the police found Mr. Hornick in possession of a lighter, in violation of these orders. On March 21st of 2017, Mr. Hornick pled guilty to Robbery and failing to comply with a term of an Undertaking given to an Officer-in-Charge before Justice Pawagi of this Court, sitting at 311 Jarvis Street, in Toronto. Her Honour imposed 12 months of probation for each offence, to be served concurrently. I have not had the opportunity to review the conditions of Her Honour's probation order.

January 2017 – Attempted Robbery

On January 21st of 2017, at the age of 15, and while the subject of two probation orders, Mr. Hornick participated in an attempted robbery of a convenience store. On the day in question, a third party recruited Mr. Hornick to participate in the robbery with a number of others. Mr. Hornick, together with his accomplices, gathered in the area of Queen Street East and Airport Road in Brampton. When the police arrived in response to a call from a concerned citizen, they found Mr. Hornick in possession of gloves, while the males in his company were armed with knives, duct tape, and items that could be used to disguise one's identity. On June 8th of 2017, Mr. Hornick pled guilty to Attempted Robbery before Justice Renwick of this Court, sitting in Brampton. His Honour sentenced Mr. Hornick to one day in custody on top of credit for 10 actual days of pre-sentence detention, and imposed a two-year weapons prohibition.

February 2017 – Breach of Recognizance

On February 6th of 2017, at the age of 15, and while the subject of three probation orders, Mr. Hornick violated two recognizances of bail, each of which required that he reside at an address approved of by the Family and Children Services of the Waterloo Region, and abide by the rules and discipline of that home. On the day in question, the police investigated Mr. Hornick in Toronto on an unrelated matter. It was determined at that time that he was not residing where the agency had placed him. On November 28th of 2017, Mr. Hornick pled guilty to two counts of failing to comply with a recognizance of bail before Justice Scully of this Court, sitting at 311 Jarvis Street in Toronto. He was sentenced to 12 months of probation for each offence, to be served concurrently.

April 2017 – Robbery with Disguise

On April 23rd of 2017, at the age of 15 and while the subject of two probation orders, each of which necessarily required that he keep the peace and be of good behaviour, and one of which related to an offence of robbery with a knife, Mr. Hornick, with his face disguised behind some type of face covering, robbed a Mac's Milk convenience store in Toronto. It was about 11:00 p.m. when Mr. Hornick brandished a knife and went behind the store counter, causing the cashier to somewhat retreat. Mr. Hornick then grabbed what appeared to be boxes of cigarettes and fled from the store.

At the material time, Mr. Hornick was the subject of a recognizance of bail in relation to another allegation of robbery. It is unclear on the record before me what condition of this order the Crown alleged Mr. Hornick to have breached.

On March 7th of 2018, Justice Lapkin of this Court, sitting at 2201 Finch Avenue West in Toronto, found Mr. Hornick guilty following a trial of robbery, wearing a disguise with intent to commit an indictable offence, and failing to comply with a term of a recognizance of bail. On top of the equivalent of nine actual months of pre-sentence detention, His Honour imposed probation for 12 months in relation to each count, to be served concurrently. This probation order included a condition that prohibited Mr. Hornick from possessing a weapon, as defined by the Criminal Code. Justice Lapkin also imposed a two-year weapons prohibition.

May 2017 – Failure to Appear

On May 2nd of 2017, at the age of 15, and while the subject of two probation orders, Mr. Hornick failed to appear for court in relation to outstanding charges. On March 9th of 2018, he pled guilty to this charge before Justice Latimer of this Court, sitting in Kitchener. He received 12 months of probation that was to run concurrently with the probation order imposed for his November 2015 offences noted above.

January 2018 – Assault on Correctional Officer

Finally, on January 22nd of 2018, at the age of 16 and while detained at the Donald Doucet Youth Centre, Mr. Hornick assaulted Jordan Pavone, a correctional officer. During that day, Correctional Officer Pavone had been supervising and disciplining Mr. Hornick for rude behaviour. At 10:00 p.m., after refusing to go to bed, Mr. Hornick engaged in a stand-off with other correctional officers. He would not comply with their direction until afforded an opportunity to speak with C.O. Pavone.

Shortly before 10:40 p.m., the officer attended to speak with Mr. Hornick who then jumped over the staff desk and punched Officer Pavone on the left side of his face. He also grabbed his shirt. Other officers stepped in to gain control over Mr. Hornick. The officer did not sustain any notable injuries. The following day at about 7:40 p.m., Mr. Hornick refused to comply with a direction to return to his room. In apparent anger, he damaged a steel paper towel dispenser, rendering it inoperable. On May 11th, 2018, Mr. Hornick pled guilty to the offences of assault peace officer, and mischief to property of a value not exceeding $5,000.00. In relation to the count of assault peace officer, Justice Dunn of this Court, sitting in Sault Ste. Marie, imposed 12 months of probation on top of credit for the equivalent of 23 days of pre-sentence detention. In relation to the count of mischief of property of a value not exceeding $5,000.00, Her Honour imposed a $1.00 fine on top of credit for the equivalent of nine days of pre-sentence detention.

Lack of Community Counselling

While at least two of his probation orders have required Mr. Hornick to take counselling as is recommended by his Probation Officer, as best as I can ascertain, he has yet to participate in any counselling within the community setting to address his criminogenic risk factors. To be clear, Mr. Hornick's accrual of new charges and their related detention orders have prevented ready access to such counselling services.

Legal Issues

A. The Appropriate Sentence

1. Relevant Test

The Crown and the Defence jointly seek the imposition of an adult sentence for Mr. Hornick's offence. By reason of the nature of the offence, in combination with Mr. Hornick's age at the time of its commission, Mr. Hornick's offence is, in law, eligible for an adult sentence, and the only lawful adult sentence that I could impose is life imprisonment with no eligibility to apply for parole for seven years.

I cannot impose an adult sentence unless satisfied that:

1. The presumption of diminished moral blameworthiness or culpability of the young person is rebutted: paragraph 72(1)(a) of the YCJA; and

2. A youth sentence imposed in accordance with the purpose and principles set out in sub paragraph 3(1)(b)(ii), and s.38 of the YCJA would not be of sufficient length to hold the young person accountable for his or her offending behaviour: paragraph 72(1)(b) of the YCJA.

Simply put, the first criterion focuses on maturity. The second criterion focuses on accountability.

It is the Crown that bears the onus of establishing the existence of these two criteria: s.72(2) of the YCJA. Once so satisfied, I have no choice but to impose an adult sentence: s.73(1) of the YCJA. Put another way, I retain no discretion to impose a youth sentence in the event that the Crown meets its onus under s.72(1). It also bears mentioning that the Crown has no particular burden to meet in relation to each of the two criteria set out in s.72(1) of the Act. That is to say, the Crown is under no obligation to satisfy me beyond a reasonable doubt, or on a balance of probabilities, as to the existence of each of these criteria. However, where the Crown wishes to rely on an aggravating fact to establish either criteria, it must prove the existence of that fact beyond a reasonable doubt. Similarly, where the Defence wishes to rely on a mitigating fact to detract from the satisfaction of either criteria, it must prove the existence of that fact on a balance of probabilities.

A) Maturity

In R. v. D.B., 2008 SCC 25, the Supreme Court of Canada held that, in the context of sentencing under the Youth Criminal Justice Act, young persons are entitled to a presumption of diminished moral blameworthiness or culpability. Indeed, the Court accorded this presumption constitutional status by recognizing it as a principle of fundamental justice, as contemplated by s.7 of the Canadian Charter of Rights and Freedoms. This presumption flows from the reality that because of their age, young people have heightened vulnerability, less maturity, and reduced capacity for moral judgment.

In R. v. M.W., 2017 ONCA 22 at paragraph 98, the Ontario Court of Appeal held that to rebut the presumption of diminished moral blameworthiness or culpability under s.72(1) of the YCJA, the Crown has to satisfy the Court that, at the time of the offence the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to him or her.

B) Accountability

The fundamental purpose of a youth sentence 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: s.38(i) of the YCJA. That accountability must be fair, proportionate, and consistent with the greater dependency of young persons and their reduced level of maturity: paragraph 3(1)(b)(ii) of the YCJA.

In this context, accountability is the equivalent of the adult sentencing principle of retribution as defined in R. v. C.A.M., at paragraph 80, as follows:

Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint. Retribution requires the imposition of a just and appropriate punishment, and nothing more.

See R. v. A.O., 2007 ONCA 144 at paragraph 46.

As noted in R. v. M.W., supra, at paragraph 101, in furtherance of the stated purpose of a sentence under the Youth Criminal Justice Act, consideration must be given to the youth sentence that has the greatest chance to rehabilitate the young person. Section 39(3) of the YCJA requires consideration of the youth's attitude toward rehabilitation, his or her history with rehabilitative programs, and the availability of such programs.

However, as the same court cautioned in R. v. Ellcott, 2017 ONCA 61 at paragraph 36, while rehabilitation and reintegration are important considerations in the accountability inquiry, they are not determinative of that inquiry.

The Court in R. v. M.W., supra, reminded us that s.38(2) of the YCJA sets out additional principles that must be applied when determining a youth sentence. The sentence:

1. Must not be greater than that imposed on an adult in similar circumstances;

2. Must be similar to sentences imposed on similar young persons in similar circumstances;

3. Must be proportionate to the seriousness of the offence and the degree of responsibility of the young person;

4. Subject to proportionality concerns, must be the least restrictive sentence capable of achieving accountability, the most likely to rehabilitate and reintegrate the young person into society, and promote a sense of responsibility in the young person and acknowledge the harm done to the victims and the community; and

5. Subject to proportionality concerns, may serve the objectives of denunciation and specific deterrence.

The two criteria set out in s.72(1) of the YCJA are, to a degree, inter-related but ought to be analyzed separately. In R. v. M.W., supra, at paragraph 105, the Court identified certain factors that a sentencing judge could consider as it undertakes its analysis under s.72(1) of the YCJA. Those factors include:

1. The seriousness and circumstances of the offence;

2. The age, maturity, character, including sophistication, intelligence, and capacity for moral reasoning, background, and previous record of the young person; and

3. Any other factors the court considers relevant.

2. The Application of the Law to the Facts

A. Has the Crown Rebutted the Presumption of Diminished Moral Blameworthiness or Culpability of Mr. Hornick?

As a result of the following constellation of factors, I am satisfied that the Crown has rebutted the presumption. On the whole of the evidence before me, Mr. Hornick did not present as an individual with heightened vulnerability, less maturity, and reduced capacity for moral judgment in August of 2018.

1. Age and Independence

At the time of the offence, Mr. Hornick was 17 years of age. He could drive a car. He ostensibly lived on his own and had supported himself financially, albeit through illegal means. He was capable of renting a hotel room when he needed to get away from his mother. He had chosen not to attend school. He was in the habit of carrying a gun. He had rejected the oversight and support that his parents and child protection agencies could offer.

2. Solitary Commission of Offence

Mr. Hornick committed the offence with the assistance of no one.

3. Long-Held Motive

Mr. Hornick committed the offence on the strength of a long-held desire to seek revenge for a wrong done to him. It was not the product of a momentary lapse in judgment or what may be termed as an impulsive situational response, commensurate with youthful immaturity.

4. Methodical Planning

Mr. Hornick was methodical in his planning of the execution of the offence. He armed himself with two knives. He intentionally ingested an excessive amount of intoxicating substances to ensure that he would carry through with his intention. He parked his getaway car in a manner that maximized his opportunity to escape. He sought to lure his victim inside of the apartment building in an apparent attempt to minimize the risk that the offence would be witnessed. These steps reflect a degree of sophistication. They also reflect his capacity for moral reasoning. Simply put, his actions demonstrate that he fully appreciated that what he was doing would be viewed by others as wrong.

5. Evidence Destruction

Following the offence, Mr. Hornick had the wherewithal to burn his clothes, thereby destroying evidence to connect him to the offence.

6. Conduct During Police Interview

As is evident in his interview with Detective Price, Mr. Hornick conducted himself in a manner that suggests he believed he was capable of handling an interview by a member of a Homicide Unit without the assistance of Counsel, and without the benefit of the presence of one of his parents.

7. Self-Advocacy

As is evident in his interview with Detective Price, Mr. Hornick had the capacity to self-advocate in the presence of a person of authority. He requested cigarettes, water, and food. He asked for access to his iPhone. He asked to see a copy of the Criminal Code, and for access to any pamphlets that outlined possible sentences for the offences of first and second degree murder. He asked to see photographs from the crime scene in order to confirm that Mr. Abshir had, in fact, died. He declined to provide his phone number. He wanted to know if he was being charged as an adult or a youth.

8. Capacity to Mislead

During his interview with Detective Price, he demonstrated the capacity to mislead the officer about certain material facts with a view to protecting others present for aspects of his offence from police scrutiny.

9. Lack of Fear

During his interview with Detective Price, he advised the officer he was not scared of the consequences that would flow from a finding that he had committed first or second degree murder.

10. Legal Acumen

During his interview with Detective Price, Mr. Hornick demonstrated a high level of legal acumen. He demonstrated an understanding of the rights that Detective Price recited to him. He indicated that, in the past, he had read through portions of the Criminal Code. He was aware that when an offender is 18, he or she could be sentenced to custody in a penitentiary. He was aware that certain offences committed by a young person could attract an adult sentence. He projected that he would remain in youth detention for another year and then be sentenced to custody in a penitentiary. He wanted to waive in the Robbery charge from York Region to Toronto for a quick guilty plea so that he could focus his attention on his more serious charge. He demonstrated an awareness of lesser and included offences and of the fact that a confession might serve to mitigate a sentence. Finally, he asked the officer about what kind of "plea deals" he had seen for similar cases.

B. Would a Youth Sentence Be Sufficiently Long to Hold Mr. Hornick Accountable for His Offence?

Under the YCJA, the offence of second degree murder can attract a custody and conditional supervision order up to seven years in duration: paragraph 42(2)(q)(ii) of the YCJA. It can also attract an intensive rehabilitative custody and supervision order up to seven years in duration; see paragraph 42(2)(r)(iii) of the YCJA. Of note, Mr. Hornick refused to participate in an assessment as to his eligibility for this sanction and, in the result, it is not a sentencing option in this case.

I am mindful that in determining whether a seven-year custody and conditional supervision order would be of sufficient length to hold Mr. Hornick accountable for his offence, I do not have to deduct credit for pre-sentence detention: R. v. M.B., 2016 ONCA 760.

Put another way, the question I need to answer is whether a seven-year custody and conditional supervision order on top of credit for pre-sentence detention, in this case the equivalent of 520 days, would be of sufficient length to hold Mr. Hornick accountable for his offence.

In making this assessment I must consider the mitigating and aggravating factors that arise from the circumstances of the offence, and Mr. Hornick.

Mitigating Factors

I will begin with a discussion of the mitigating factors. They may be summarized as follows.

1. Guilty Plea

Mr. Hornick has pled guilty to this offence. In doing so, he accepts responsibility for his actions. In addition, his plea evinces a degree of remorse. Mr. Hornick's plea of guilt has saved Mr. Abshir's family the ordeal of having to endure up to two court proceedings during which witnesses would testify to the tragic circumstances through which Mr. Abshir suffered. Mr. Hornick's plea has also relieved the witnesses in this matter from having to relive a traumatic experience through the process of testifying. Finally, Mr. Hornick's resolution of the case has saved the court valuable time that otherwise would have to have been devoted to lengthy proceedings.

2. Assistance to Police

Through his lengthy video-recorded confession, Mr. Hornick meaningfully advanced the police investigation into Mr. Abshir's death.

3. Deprived Childhood and Adolescence

Mr. Hornick was deprived of a childhood and adolescence that many young persons simply take for granted. Notwithstanding good intentions, it would appear that Mr. Hornick's parents were, for a variety of reasons, including personal challenges and discord between them, under-equipped to parent Mr. Hornick who, as a child, met the criteria for the diagnoses of ADHD and a learning disability. His upbringing was marked by a steady flow of parental figures who imposed different and sometimes conflicting expectations of him. His eventual involvement in the child protection system resulted in additional adult figures transitioning through his life. This collective experience left him with an inadequate foundation to negotiate the difficult waters of adolescence. As a coping mechanism, he learned to emotionally detach. He turned to illicit substances to manage the emotions and personality traits in relation to which he otherwise lacked the tools to manage. He became immersed in a variety of illegal activities. He was wary of offers of assistance. As of the age of 15, he met the criteria for the diagnoses of three different Substance Use Disorders, Conduct Disorder, and Oppositional Defiance Disorder. Taken together, Mr. Hornick's life experience, many aspects of which were beyond his control, operate to reduce the moral blameworthiness of his offence.

Absence of Mitigating Factors

It is also important to note the absence of certain mitigating factors that might otherwise support the imposition of a less punitive sentence. They may be summarized as follows.

1. Limited Insight and Empathy

Mr. Hornick has, in a variety of contexts, demonstrated a limited capacity for insight into his own challenges and a limited capacity for empathy in the face of his own wrongdoing. This undermines his prospects for rehabilitation.

2. Capacity to Manipulate

Mr. Hornick has demonstrated the capacity to manipulate others' assessment of him by intentionally manufacturing a positive self-presentation. This operates to undermine his prospects for rehabilitation.

3. Lack of Progress on Criminogenic Risk Factors

To date, Mr. Hornick has made no meaningful progress in addressing the criminogenic risk factors that Dr. Vinik identified in her 2017 mental health assessment of him. Further, since 2017, his choices suggest that he has become more entrenched in an anti-social or pro-criminal mindset. This lack of progress is, in part, the result of Mr. Hornick's lack of meaningful participation to date in counselling designed to target the aforementioned risk factors.

4. Lack of Available Rehabilitative Programs

I have no evidence before me that there exists a collection of rehabilitative programs deliverable through the mechanism of an available youth sentence that would meaningfully assist in Mr. Hornick's rehabilitation and eventual reintegration into society.

Aggravating Factors

I turn now to a discussion of the aggravating factors in this case. They may be summarized as follows:

1. Seriousness of Offence

Mr. Hornick committed one of the most serious offences identified within the Criminal Code. He intentionally took the life of a fellow human being.

2. Brutality of Attack

Mr. Hornick administered the assault against Mr. Abshir in a manner suggestive of pure brutality and gratuitous suffering.

3. Careful and Methodical Planning

Mr. Hornick's offence was the product of careful and methodical planning. It is particularly aggravating, in my respectful view, that through the ingestion of a cocktail of intoxicating substances, he actively took steps to prevent himself from second-guessing his decision to take the life of another individual.

4. Pattern of Armed Violence

Mr. Hornick's offence represents the third occasion over the course of two years during which he chose to commit an offence of violence while armed with a knife.

5. Involvement of Minor

Following the commission of this offence, Mr. Hornick essentially enlisted a 14-year-old to serve as an accessory-after-the-fact-of-murder, when he had J.P. commit a knifepoint robbery of a gas station kiosk in order to generate funds to support his flight following the homicide.

6. Capacity for Violence in Multiple Settings

Mr. Hornick's capacity for physical violence arises in a multitude of settings. He has been physically aggressive within the community, in public spaces, within the school setting, within retail settings, and within secure custody settings. No environmental factors, including the presence of persons in authority, appear to regulate his potential for violence. In addition, his capacity for inflicting serious violence has been longstanding. It is not clustered around a distinct period of time. In combination, this speaks to the high level of risk for serious violence that he presents.

7. Disrespect for Court Orders

Mr. Hornick committed this offence while the subject of two probation orders, each of which required that he keep the peace and be of good behaviour and prohibited him from possessing a weapon, as defined by the Criminal Code. It is clear on the evidence before me that Mr. Hornick has virtually no respect for court orders that limit or direct his activities. The facts that underlie the entries of his youth court record demonstrate a pattern of committing criminal offences while the subject of release and/or sentence orders.

8. Ineffectiveness of Prior Sentences

The evidence before me supports the inference that no youth sentence imposed to date appears to have contributed to Mr. Hornick's rehabilitation or operated to deter his commission of violent offences.

Conclusion on Accountability

On the strength of this collection of factors, the Crown has met its onus satisfying me that a seven-year custody and conditional sentence order under paragraph 42(2)(q)(ii) of the YCJA would be insufficient to hold Mr. Hornick accountable for his actions.

Mr. Hornick's level of greater maturity requires that he be held to a higher degree of accountability than differently-situated 17-year-old young persons. I am mindful that my assessment as to the appropriate sentence must be guided by the principle of proportionality. That is to say, the sentence that I impose must be proportionate to the seriousness of the offence and the young person's degree of responsibility for it.

In this case, the gravamen of the offence is extremely high. In addition, Mr. Hornick's degree of moral blameworthiness is equally high. On the strength of the evidentiary record before me, his prospects for rehabilitation are limited. The aggravating features of this case are such that a youth sentence would be insufficient in length to denounce Mr. Hornick's unlawful conduct and would fall short of adequately reflecting an acknowledgement of the harm he has done to our community.

It cannot be forgotten that one of the underlying principles of the YCJA is the protection of the public: paragraph 3(1)(a) of the YCJA. A sentence that falls short of holding a young person accountable for his or her actions runs counter to this principle. I share the parties' view that a youth sentence simply would be insufficient to hold Mr. Hornick accountable for the offence that he has committed. The need to protect the public demands that I reject a youth sentence as the appropriate choice in this case.

B. The Appropriate Placement

Pursuant to s.76(1) of the YCJA, I have a limited discretion to direct where Mr. Hornick will serve his sentence. As noted above, the parties are jointly recommending that I make an order directing that Mr. Hornick serve his sentence of imprisonment in a penitentiary.

I have reviewed Ms. White's Placement Report, generated pursuant to s.76(4) of the YCJA. It summarizes Mr. Hornick's experience in six different youth detention facilities since his arrest in this matter. In her report, Ms. White notes that Mr. Hornick has a history of defiance, intimidation, and physical aggression towards facility staff and peers. I have already referred to the details of this history in my reasons and will not repeat them at this time except to highlight that he has engaged in multiple stand-offs with correctional officers, thereby prompting the deployment of the Crisis Response Team. He has armed himself with a weapon on more than one occasion, and he has caused serious injuries to peers during the course of attacks on them.

In July of this year, Mr. Hornick himself contacted the ombudsman's office in an apparent attempt to facilitate an immediate transfer to an adult facility, pending sentencing in this matter. He has further advised Ms. White that, in the event that he receives an adult sentence, he would be agreeable to a placement in an adult facility.

As is further summarized in Ms. White's report, Mr. Hornick's ongoing presence in a youth facility would be detrimental to its safe operation.

I am mindful of the preference of Mr. Hornick's mother. She would like Mr. Hornick to serve his sentence at the Syl Apps Youth Centre, a youth facility where he made some limited therapeutic gains. However, the evidence before me overwhelmingly supports the conclusion that Mr. Hornick can neither self-regulate nor submit to regulation by persons in authority within a youth facility. I will accede to the parties' request that he serve his sentence in a penitentiary.

Conclusion

Every homicide causes a profound impact on the deceased's family. They must endure a sense of profound personal loss. They feel a sense of anguish over their loved one's suffering. They must endure the utter senselessness of the act that took their loved one's life. I listened carefully to all of the victim impact statements that were read into the court record. I am very mindful of the unique features of the impact of this tragedy on the members of Mr. Abshir's family. I realize that very little of what I have said today will ease their pain. It is however the Court's hope that the conclusion of this sentencing will support one small step forward along the family's journey of healing.

I wish to make it very clear that I do not make today's decision lightly. Notwithstanding that the proposed sentence is the product of a joint recommendation by two very experienced Counsel, I have scrutinized it for its legal soundness and fairness. The sentence they have proposed is lawfully available. In my respectful view, its appropriateness is amply supported by the evidence tendered at this application.

Sentence

Mr. Hornick, for the offence of second degree murder, I am sentencing you to life imprisonment. You will be ineligible to apply for parole under the relevant provisions of the Corrections and Conditional Release Act for a seven-year period that, in accordance with s.746 of the Criminal Code, commenced on August 24th of 2018, the date of your arrest and detention in custody for this offence.

Pursuant to paragraph 76(1)(c) of the YCJA, I am directing that this sentence be served in a penitentiary.

Further, as a result of your conviction for this offence, I am obliged to make an order authorizing the taking of a DNA sample from you. I make that order at this time.

Having regard to the nature of this offence, I am obliged to make the following order pursuant to s.109(3) of the Criminal Code. For the rest of your life, I am prohibiting you from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance. I am cautioning you that it is a criminal offence to violate a condition of that order.

Finally, pursuant to s.491 of the Criminal Code, I am directing that the knives seized by the police in relation to their investigation of this matter be forfeited by you in favour of the Crown in right of Ontario, to be disposed of in accordance with the law. I am prepared to sign a written order to that effect if it is prepared by the Crown.

Released: August 8, 2019

Justice A. Tuck-Jackson