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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: 2020-02-18

Court File No.: Hamilton 18Y/9470

Between:

Her Majesty the Queen

— AND —

JSO & KM, young persons

Before: Justice George S. Gage

Heard on: February 11 and 18, 2020

Reasons for Sentence released on: February 18, 2020

Counsel

M. Fox and A. Grady — counsel for the Crown

A. Confente — counsel for the youth JSO

M. Puskas — counsel for the youth KM

GAGE J.:

Overview

[1] September 6, 2018 was the Thursday of the first week of school after the summer vacation. For JP it was his first week of high school. A new experience, a new school, perhaps some new friends.

[2] JP and his friend D skipped out of school half-way through the day. They went to WW's place to hang out. Four other teenaged boys, including JSO and KM, joined them.

[3] D was told to leave and did. A hike up the escarpment via the Kenilworth stairs was suggested. JP thought he was making new friends. He was looking forward to attending a party and perhaps smoking some pot with the group.

[4] Instead, partway up the escarpment the other boys lured him to an isolated location off the stairs where they attacked and robbed him. JP was pushed to the ground. Once down he was punched and kicked. His shoes and sweater were forcibly removed and taken. They took his cell phone. He was forced to divulge his cell phone password. They took a gram of marijuana that JP had in his pants. They cut off his socks. Once they had what they wanted the group abandoned JP to fend for himself. Josh was forced to navigate his way down the serrated metallic steps in his bare feet. His feet were bleeding by the time he got to the bottom.

[5] JSO initiated the attack and then stood across one potential escape route with a large knife or machete in hand while JP was punched, kicked and robbed by the others. KM videotaped the encounter on a cell phone and encouraged the others to find and take the pot.

[6] Three of the boys (WW, DK, and RG) entered pleas of guilt. JSO and KM were found guilty after a trial.

[7] The Crown suggests that the appropriate sentence is a 6-month custodial term followed by probation.

[8] Counsel for JSO and KM propose non-custodial dispositions of either probation or a deferred custody and supervision order.

[9] One of the other boys (WW), was recently sentenced by Justice Fiorucci to a custodial term of 3 months for his part in the robbery.

Victim Impact

[10] The attack caused physical injuries to the jaw and feet, the lingering effects of which lasted about a month.

[11] The psychic harm has persisted. JP was frightened and humiliated by the incident. His trust in others was severely compromised. His sense of safety and security was shattered. Thinking about that day continues to make him feel anxious and afraid. He has become more reclusive. He suffers from nightmares and flashbacks. Photos of his pet that were precious to him were deleted from his phone. He found it necessary to change schools.

Circumstances of the Offenders

JSO

[12] JSO was born on […], 2002. He is the only child born to NS and MP. His parents were together for 4 years. The relationship was marked by physical violence, frequent conflict and confrontation and substance abuse. They separated when JSO was two. JSO was born prematurely.

[13] JSO has been diagnosed with ADHD and a non-verbal learning disability. He has struggled with school. There have been issues with truancy and several suspensions for violence and racist social media posts. He has earned only 4 high school credits.

[14] His mother is concerned about his choice of friends.

[15] JSO his lived with his father since he was 13 years old. Although he sees his mother regularly, she lives in Fergus and he is not willing to move there to be with her.

[16] There is a concern that there is insufficient structure and control in JSO's father's household.

[17] JSO's social media posts and his behaviour generally since the date of the offence suggest that JSO has made little or no progress in adjusting the values and thinking that caused him to be a participant in the offence.

[18] On a more positive note it is encouraging that JSO has overcome an addiction to Xanax that was operative at the time of this offence.

[19] JSO has no prior involvement in the criminal justice system.

KM

[20] KM was born on […], 2003. He is currently 16 years old. He was 2 months short of his 15th birthday when he committed the offence. He is the only child of the marriage of his parents.

[21] His parents separated when KM was 10. Up to that point in time the environment in the family home was toxic as a result of alcohol and drug addictions and domestic violence.

[22] After the separation KM lived with his mother until he was "kicked out" of her home. His mother moved to Edmonton shortly thereafter.

[23] KM lives with his father. Until recently his father's work kept him away for lengthy periods of time during which KM was essentially on his own. He has had no contact with mother since September 2019.

[24] Due to his negative childhood experiences KM has suffered from mental health issues that have contributed to acting out, self harming and suicidal ideation. He is receiving counselling. His current counsellor describes KM as intelligent, responsible and mature.

[25] Over the past year KM has come to realize that his former peers were a negative influence in his life. He has developed a new, more positive, peer group. He is attending a different school. He enjoys composing and playing music.

[26] Although truancy and suspensions for acting out and aggressive behaviours have been a continuing issue for KM's educational pursuits, he has demonstrated the capacity to excel academically.

[27] KM has no prior history of involvement in the criminal justice system.

[28] The overall picture suggests that KM has made steady progress in addressing the issues that led to his involvement in the offence before the court.

The Law

[29] As noted by the Supreme Court of Canada in R. v. B.V.N.[1] the Youth Criminal Justice Act has introduced substantial changes in the general youth sentencing process. Judges are provided with more specific guidance. Detailed sentencing principles are expressly set out. Options are more regulated. Factors to be considered are spelled out and mandatory restrictions are placed on the use of custodial sentences.

[30] Pursuant to section 38(1) of the YCJA the purpose of sentencing is to "hold the young person accountable through the imposition of just sanctions that have: meaningful consequences for the young person and promote rehabilitation and reintegration into society, thereby contributing to the long term protection of the public."

[31] I am directed by section 38(2)(c) of the YCJA to impose a sentence that is proportionate to the seriousness of the offence and the youth's degree of responsibility.

[32] Section 38(2)(b) directs that the sentence imposed "must be similar to sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances."

[33] I must consider and reject all available sanctions other than custody before imposing a custodial sanction. I am instructed to impose the least restrictive appropriate sanction and the disposition that is most likely to foster his rehabilitation and reintegration into society.

[34] Section 38(3) of the YCJA directs me to consider the offender's degree of participation in the offence, the harm to the victims and whether that harm was intentional or foreseeable.

[35] General deterrence is not a relevant factor in the sentencing of young persons under the YCJA.[2] In 2012 the YCJA was amended to include the principles of specific deterrence and denunciation as appropriate factors to consider in the youth sentencing calculus.[3]

[36] I am mindful that one of the primary purposes of the enactment of the YCJA was to reduce over-reliance on custodial sentences for young offenders.[4]

[37] Consistent with this direction, section 39(1) of the YCJA restricts the use of custodial sanctions. The offence here qualifies as a "violent offence" within the meaning of section 39(1)(a) as interpreted in R. v. C.D.[5] and therefore the option of imposing a custodial disposition is available.

[38] Our courts have recognized that notwithstanding the YCJA endorsement of non-custodial dispositions, situations will arise where the seriousness of the offence combined with the degree of participation of the young person will render a custodial sanction the only sentence that is proportionate to the gravity of the offence and consistent with the promotion of a sense of responsibility in the young person together with an acknowledgement of the harm done to the victims and the community.[6]

Analysis

[39] Robbery is often a crime of greed or desperation or a combination of the two. While there was an element of greed operating here, the overarching and much more troublesome components of this scenario were domination, control and humiliation.

[40] The actions of these children toward JP on September 6, 2018 bespeak the dehumanization of JP as a person and peer, and a complete absence of empathy.

[41] The level of violence perpetrated is shocking and the failure of any one of the 5 participants to object, to curtail the violence, or to stand down, is profoundly discouraging.

[42] This was a premeditated and planned attack in which all the participants had a role. It is my view that the degree of responsibility for this offence is equally shared amongst the 5 participants.

[43] The physical and emotional harm to JP was both intentional and foreseeable.

[44] The swarming and deliberate humiliation that occurred here should be denounced and the sentence imposed should reflect that denunciation.

[45] The need to hold these youths properly accountable and the principle of parity embedded in section 38(2)(b) also suggest that the disposition should include a term of custody.

[46] I find that the appropriate term of custody is 3 months broken down as 2 months of secure custody followed by 1 month of community supervision. I appreciate the fact that this is a sentence that is identical to the term of custody imposed on WW who, unlike JSO and KM, had the benefit of the mitigating effect of a plea of guilt. Having reviewed the factors involved in the WW sentencing, including pleas to other offences committed after this offence, I am satisfied that the same sentence is warranted notwithstanding the absence of pleas of guilt.

[47] The term of custody will be followed by probation for 2 years. The terms will include reporting as required, attending upon such counselling as may be recommended by the probation officer and no contact with JP.

[48] A YCJA section 51 order will issue prohibiting possession of any weapon. The term of that order is 2 years.

[49] While the accountability of these two boys, JSO and KM, is necessarily the focus of this decision it bears noting that there is a wider context in which this incident occurred.

[50] In a world where our leaders respond to humanitarian crises by building walls instead of opening doors; in a society where political discourse is dominated by ridicule and bombast instead of thoughtful and reasoned debate; in an environment where discussions and considerations of ethics and morality have been sidelined in aid of expediency and convenience; it warrants asking whether we should be the least bit surprised when young boys act in this way.

[51] To the extent that it takes a village to raise a child, this village has failed all of these children.

Released: February 18, 2020

Signed: Justice George S. Gage

Footnotes

[1] [2006] SCJ #27

[2] R. v. B.V.N. ibid

[3] Section 38(2)(f)

[4] R. v. D.(C.) ; R. v. K.(C.D.) 2005 SCC 78, (2005), 203 C.C.C. (3d) 449 at para. 49 (S.C.C.)

[5] [2005] 3 SCR 688

[6] R. v. R.E.W. [2006] 1761 (OCA)