Notice

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

112. 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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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 File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 02 23 COURT FILE No.: Newmarket 18 Y 0694

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

F.B. (A Young Person)

Before: Justice David S. Rose

Heard on: January 4, February 8, 2021

Reasons for Judgment released on: February 23, 2021

Counsel: Ms. J. Halajian..................................................................................... counsel for the Crown Ms. R. Gregor............................................................... counsel for the Young Person F.B.

Rose J.:

[1] F.B. pleaded guilty before me on January 4, 2021 to the offence of Aggravated Assault. The Crown seeks a custodial sentence of 6 months and the defence a non-custodial sentence. These are my reasons for sentence.

Facts

[2] On December 3, 2018 four males started a fight with Y.M. in the parking lot of Tommy Douglas Secondary School. H.B. was nearby and went to intervene in aid of Y.M. The group then turned on H.B. and F.B. stabbed H.B. The incident was captured on the school video monitoring system, and a cell phone video with some clarity.

[3] F.B. had arrived at the school with 3 others in a blue Audi, and approached Y.M., who had just dropped off passengers for the school. It was just after the noon hour. In the moments leading up to the stabbing the video shows no sense that a violent group attack on Y.M. and then H.B. would occur.

[4] It is admitted by F.B. that he and the three others who attacked H.B. were not from Tommy Douglas, but from M. High School. The Audi arrived in the parking lot and parked next to Y.M.’s mini van. Y.M. had just come back from lunch. The 4 occupants of the Audi got out of their car and started to punch Y.M. H.B. was nearby in the parking lot and saw what was unfolding. He approached to intervene and the assailants turned on him.

[5] What followed was a vicious attack by F.B. and the three others from the Audi. Only F.B. was armed. The others punched and kicked H.B. repeatedly even after he fell to the ground. During the course of the scuffle F.B. stabbed H.B. three times: once in the upper chest; once in the lower back; and once on his arm. The stab wounds were 3cm.

[6] Y.M. suffered a red swollen face from the altercation. Neither he, nor H.B. knew any of the assailants and had no idea why they were targeted.

[7] Of the three other assailants to the assault the driver of the Audi pleaded guilty to taking a motor vehicle without the owner’s consent. He received a Conditional Discharge. One of the assailants died before sentence. The third young person received a probation order after he pleaded guilty to assault.

[8] F.B. had always intended to plead guilty, and never sought to set a trial date. There is no victim impact statement.

F.B.

[9] A pre-sentence report for F.B. was filed. It was written in November of 2019. At the time of F.B.’s plea I asked that it be updated. F.B. was born in Toronto in a family which immigrated here from Afghanistan, in 2000. His parents separated in 2006. F.B.’s parents now live together in the same home even if they are estranged in their marriage. His parents told the PSR writer that they have no concerns with their son. He does not use alcohol or drugs. He participates in family chores and participates in community activities at their mosque and also by volunteering. His parents reported him to have started his own lawn mowing business when he was in the 7 th grade. They view him as pro social and athletic. F.B.s parents tended to minimize his involvement in this incident. His mother blamed this on a negative peer group.

[10] The PSR reported that F.B. developed a significant record of absences from school. When he was at M. High School he had 25 absences, with another 29 absences when he was expelled from M. and placed in an Access program. The PSR reported his parents to have provided various excuses for his ongoing truancy On one hand F.B.’s mother reported him to be a good student until the 10 th grade, but when he changed high schools things got worse.

[11] In early February 2021, just before sentencing, F.B. entered the School without a College program. On completion he will earn his Grade 12 diploma.

[12] F.B. has been working two part time jobs since mid 2019. One is in retail, and the other at a restaurant. I was also given a positive letter from his work at a cabinet manufacturer. F.B. has completed 150 hours of community service.

Legal Issues

[13] The statutory framework for sentencing under the Youth Criminal Justice Act (YCJA) starts with the overall statement of principle in s. 38, which is worth repeating:

38 (1) Purpose The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

38 (2) Sentencing principles A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons with particular attention to the circumstances of aboriginal young persons;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community;

(e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if

(i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1),

(ii) the young person will reasonably be able to comply with the condition, and

(iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

38 (3) Factors to be considered In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[14] The range of sentences available under the YCJA is outlined in s. 42. At the most lenient end is a reprimand under s. 42(a), and the most serious is 10 years for murder under s. 42 (2) (q). The disposition of a deferred custody order under s. 42(5) is not available if the young person is guilty of a serious bodily harm offence.

[15] In this case F.B. conceded that this was a serious bodily harm offence and therefore a deferred custody order is not available in law. It is a fair admission, see R. v. K.F. (unreported decision of Henschel J. August 22, 2019), R. v. P. (N.) 2009 ONCJ 215.

[16] With deferred custody not an available sentence in this case the range of options has been narrowed by counsel. The Crown seeks 6 months of open custody followed by probation, and the defence seeks 18 – 24 months probation. The difference between those position is therefore one of custody. Should F.B. serve a custodial sentence in this case?

[17] Again the YCJA spells out factors which must be satisfied before imposing a custodial sentence on a young person. As the principles apply to this case no person can be committed to custody as a youth sentence unless: the young person committed a violent offence; all reasonable alternatives to custody have been considered; the sentence satisfies the principles and purposes outlined in s. 38 of the YCJA.

Aggravating and Mitigating Factors

[18] It is convenient to review the various factors listed in s. 38 (3) as they now apply to this case. F.B. was not the leader of the group that attacked H.B. He was the last person out of the car. But with that said, he was the only person who wielded a knife in the attack. The harm done to H.B. was intentional or reasonably foreseeable in the least. H.B. suffered stab wounds and nerve damage. There is no evidence of pre-trial custody, but he was on a bail which required him to live with his parents, and did not allow him out after 10pm. The defence asks me to place considerable weight on this factor in mitigation of sentence. I would assign minimal weight to the bail terms. F.B. was 16 at the time and therefore was required to live with his parents for the two plus years since his arrest. That, and a 10pm curfew are not, in the absence of any specific prejudice things which I find to be stringent bail terms. F.B. performed 150 hours of community service and apologized to H.B. He has made reparations to the victim in that sense and the community. F.B. has no prior criminal record.

[19] Aside from those statutory factors I would find the following aggravating factors. While there is no evidence of pre-planning, it is aggravating that the assault on H.B. was unprovoked and therefore cowardly. This is not a schoolyard fight that went too far. It was one sided. It is also aggravating that H.B. was set upon when he tried to intervene in the attack on Y.M. The injuries suffered by H.B. were serious. He spent some amount of time at a Trauma center recovering. He suffered nerve damage. H.B. did not provide victim input, but I will infer that he spent time recovering from his wounds, and was exposed to some element of post traumatic stress. Schools must necessarily be safe places where learning can done without fear of physical harm. On December 3, 2018 the parking lot of Tommy Douglas Secondary School was the opposite of that.

[20] Other mitigating factors under s. 38(3) (f) include his plea of guilty, and letter of apology to H.B. I find that his remorse is genuine, and that by pleading guilty he saved H.B. and Y.M. the stress involved in re-living the moment in a public courtroom. It is also to his credit that he was been working at various jobs in the last couple of years and is now back in school. His counselling and community service hours are also to his credit. It is to his credit that many people from various walks of life spoke about him in favourable terms.

[21] F.B. has argued that he should also take the mitigating effect of the current Covid-19 pandemic because incarceration puts him at risk. There is nothing on the record before me upon which I could find that the pandemic puts him at risk more than anyone else in the population.

[22] Cases presented at sentencing define a range which suggests that a non-custodial sentence is rare when a youth is convicted of aggravated assault by means of stabbing. See R. v. D.T. 2020 ONCJ 542 in which a non-custodial sentence is imposed. It is not a matter of a defined range, which is often seen in adult sentences, but more so a matter that a non-custodial sentence “fails to pay heed to the proportionality principle expressed in s. 38(2) of the YCJA” see R. v. K.L. 2009 ONCA 602, or R. v. C.N. 2006 32902 (ON CA), 83 O.R. (3d) 473 (C.A.).

[23] What tends to bring the sentence down to one of probation is: a vulnerable accused, as in D.T., or D.(C) 1994 CarswellBC 1739; or an offence where the harm to the victim was not intentional or foreseeable, see R. v. L.(S.A.) 2003 BCCA 563; or a heat of the moment incident flowing from a consensual fight, see R. v. C. (J) 38 W.C.B. (2d) 96 (B.C. Prov. Ct.).

[24] In this case I would describe the range of adult sentences for a similar incident as being in the lower penitentiary range. That was described by Code J. in R. v. Tourville 2011 ONSC 1677 at par. 30. As Code J. said in Tourville, where the aggravated assault is unprovoked without any element of consent or self-defence the range is 4-6 years. It is somewhat academic in this case because very different considerations apply to youth sentencing. I mention the range of adult sentences simply because s. 38(2)(a) requires any youth sentence be no more than what an adult might receive in similar circumstances. In this case the Crown position is much less than what an adult would expect to normally receive.

[25] It is important in this case that the sentence meets the proportionality principle. As Pomerance J. said in R. v. Hearns 2020 ONSC 2365 “Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender.”. In other words, if it is to be a custodial sentence, then it should be as minimal as necessary.

[26] Custody is a last resort sentence in youth cases and F.B. takes the benefit of that principle. But with that said, I find that a custodial sentence is the only sentence which is proportionate to the offence, taking into consideration the seriousness of the offence, the degree of responsibility of F.B. As the Court of Appeal said in R. v. R.E.W. (2006), 2006 1761 (ON CA), 207 O.A.C. 184 at par. 50:

In my view, this is one of the clearest of cases for which a custodial disposition is the only reasonable response. I can see no other disposition that would be proportional to the seriousness of the offence and the degree of responsibility of the appellant for that offence. A custodial disposition is also the only sentence that would promote a sense of responsibility in the appellant and an acknowledgment of the harm done to the victims and the community.

See also R. v. K. (I.F.) (supra) Henschel J. (supra)

[27] School yards are places where young persons should expect a level of protection. This offence was a one-sided attack on a victim doing nothing other than intervening to help another victim.

[28] In this case I find that the proportionate sentence is one of 4 months custody broken down to 80 days of custody followed by 40 days of supervision. I recommend that the custodial portion be served in open custody. The custodial portion is to be followed by 18 months of probation. The terms of probation are:

– statutory terms – report to a youth probation officer by telephone within 48 hours of custody, and thereafter as required; – Take counselling as required and sign any necessary release of information forms to confirm enrollment, attendance and completion of those programs. – Live at a residence approved of by a youth worker; – attend school or make efforts to seek and maintain employment; – No contact directly or indirectly with: H.B.; Y.M.; the co-accused F. D.; J. F & A W.; – Not to enter into the grounds of Tommy Douglas Secondary School; – Not to possess any weapons as defined by the Criminal Code; – not to possess any knives outside the residence.

[29] This is a case of serious violence and there is nothing before me which suggests that F.B. requires access to weapons for a lawful reason. Accordingly there will be a s. 51(1) Order under the YCJA for 2 years. This is a primary designated offence under s. 487.05 and a DNA sample is therefore ordered for transmission to the DNA Databank.

[30] Counsel were very helpful in their submissions and presentation of the case.

Released: February 23, 2021 Signed: Justice Rose