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 Identity of offender not to be published.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 Identity of victim or witness not to be published.— (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 Offences.— (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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 sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;

DATE: 2021 03 25 COURT FILE No.: Central East Region: Oshawa Court 19-Y18470

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

D.D., a young person

Before: Justice Peter C. West

Heard on: August 13, 2020 (via Video Conference) and October 15, 2020 Reasons for Sentence released on: March 25, 2021.

Counsel: Mr. I. Skelton.................................................................. counsel for the Crown Ms. M. Bavaro......................... ……………………counsel for the accused D.D.

Reasons for Sentence

WEST J.:

[1] On August 13, 2020, D.D., a young person, pleaded guilty to the offences of robbery, contrary to s. 344(1)(b) of the Criminal Code of Canada and with the intent to commit an indictable offence have his face disguised, contrary to s. 351(2) of the Criminal Code of Canada. An agreed statement of facts was filed as Exhibit 1 on sentence. The sentencing was adjourned to October 15, 2020 for the preparation of a presentence report.

[2] On October 15, 2020, the pre-sentence report (PSR) prepared by Probation Officer, Rosanna Tamburro, dated October 13, 2020, was completed and entered as Exhibit 2. Ms. Bavaro submitted two additional letters, a letter dated September 22, 2020, from Dwayne Budram, Operations Manager of Office […] where D.D. is currently employed part-time and a letter dated August 13, 2020 from Luis Eduardo Mejicano, of One Mic Educators, a youth charity where D.D. completed 50 hours of community service work. These letters were marked as Exhibit 3A and 3B, respectively.

[3] Upon reading the PSR and after hearing submissions by counsel, it was my view that a s. 34 report under the YCJA should be prepared to assist in the determination of a proportionate sentence and whether there were alternatives to custody in accordance with the principles of sentencing set out in s. 38 of the YCJA. Sentencing was adjourned to January 21, 2021, for the s. 34 report to be completed. Unfortunately, the s. 34 report could not be completed because of various restrictions faced by the agency preparing the report due to the COVID-19 World Pandemic. Sentencing was adjourned to March 25, 2021. The s. 34 report was prepared through the Durham Family Court Clinic and was provided to counsel and me on March 16, 2021. It was composed of three separate by inter-related reports:

1. Report by Sylvia Riley, M.Sc., Registered Psychotherapist, Assessment Clinician, dated March 16, 2021,
2. Psychological Report by Dr. Peter Marshall, Ph.D., C.Psych., dated March 14, 2021, and
3. Forensic Psychiatric Report by Dr. Mitesh Patel, BSC, MD, FRCPC, Forensic Psychiatrist & Child & Adolescent Psychiatrist, dated March 8, 2021.

The Section 34 Report was marked as Exhibit 4. I want to express my sincere appreciation for the preparation of this report during the COVID-19 pandemic and the cooperation evidenced by the various agencies and individuals, whose assessments and therapeutic treatment programs in working with D.D. have provided me with a psychiatric and psychological diagnoses, as well as well-thought out recommendations and a clear and positive psychiatric assessment for future prognosis of risk for this young person.

[4] I also want to express to D. my appreciation and respect for his hard work and determination to change the direction of his life, as he has sought to gain insight and understanding in respect of the traumatic events he experienced when he just beginning his teenage years. Finally, I am impressed and recognize the important role his mother and father have played in assisting D. to move forward and past these life-altering traumatic events. It is my view the fact he has a positive and supportive relationship with his parents is extremely important to his low risk of future criminality.

Factual Circumstances

[5] At approximately 8:30 p.m., on October 2, 2018, three male persons entered Finley Fine Foods store located at 531 Finley Avenue in Ajax. The three males had their hoods up and their faces covered. They approached the cashier counter, where Jimeshkumar Patel and Abishek Makvana were working. There was a surveillance camera, which captured the actions of the three persons. The person wearing a red hooded sweatshirt, not D.D., brandished an imitation firearm and pointed it at the two clerks. In their statements to the police the clerks indicated they believed the handgun was a fake gun and that it was not real.

[6] The three males went behind the counter and began to put cigarettes and cash from the cash register into a backpack. After doing this one of the males vaulted over the counter, placing his bare hand upon the plastic surface covering the lottery tickets. The other two males were wearing gloves. Three palm impressions were lifted by a SOCO police officer but when a comparative search was conducted through AFIS there were no positive results. The lift card was filed in the Forensic Identification Unit of Durham Regional Police. On June 11, 2019, DRPS received notification from the RCMP Remote Network Search Coordinator in relation to the prints that had been lifted in relation to this incident. D.D. was identified as the person who deposited the palm print and left little fingerprint.

[7] On October 8, 2019, D.D. was arrested at […] Public School in Scarborough where he was doing a co-op placement. The other two culprits have never been identified.

D.D.’s Personal Circumstances

[8] D.D. was 15 at the time of his involvement in the commission of these offences. He resides with his mother, E.F., his 27 year-old sister, 16 year old sister and his 5 year old niece. He has mainly lived with his mother but when he started high school he moved to reside with his uncle in Ajax. Both D.D. and his mother attribute this move as the beginning of his getting into trouble. He moved back with his mother for the summer after Grade 9 but then moved in with his father, in Brampton, when he started Grade 10. He did not like Brampton and moved back in with his mother when he started the second semester of Grade 10.

[9] He did not have a youth court record and had not been involved with police at the time of this incident. He is therefore a youthful first offender. The PSR incorrectly states he has two prior convictions, however, all of these matters

1. Toronto, ON: 08/26/2019: carry concealed weapon for which he received extrajudicial sanctions
2. Thunder Bay, ON: 02/27/2020: Obstruct Peace Officer and Fail to comply with recognizance [which related to the release order he was under for this incident] for which he was placed on probation for six months.

arose after the date of the robbery in this case, which means D.D. comes before this Youth Court as a first offender. The Crown agreed with Ms. Bavaro’s submissions on this issue.

[10] D.D. has experienced significant traumatic events in his early teenage years. His father was incarcerated from approximately February 2016 to December 2018. Shortly after his father was incarcerated, D.D.’s older brother was tragically killed in a homicide in 2016, when D.D. was only 13 years old. D.D. described this event significantly impacted him, causing him to be “extremely hurt,” experiencing “drastic and abrupt mood swings” and he feels that a part of him is forever missing. In the Section 34 Report, Ms. Riley advised D.D. received counselling from Karen Holladay, a Registered Psychotherapist, to assist him in dealing with his grief. D.D. described the loss of his brother as the hardest thing he has ever dealt with in his life. In the PSR he indicated his brother’s death caused him to be very angry, but he has recently “learned how to deal with that anger” as a result of counselling he had while on probation. In Grade 9 he was robbed at knifepoint and his chain with a pendant containing his brother’s ashes was stolen, although this was subsequently returned to him. In 2019, D.D. was also robbed at gunpoint and he lost a close friend in another homicide incident.

[11] His mother believes D.D. “suffers from a mental health diagnosis related to a trauma disorder.” She advised the probation officer the trauma and grief D.D. experiences around his brother’s passing has “impacted his schooling, behaviour, emotion regulation, his relationships and his demeanour.” She attempted to obtain a psychological assessment and counselling support for D.D, but had been unsuccessful. It was because of Ms. F.;s’ insight and observations of D.D. that prompted me to raise with counsel my belief that a s. 34 report was necessary to determine a proportionate sentence in this case.

[12] Ms. F. has a good relationship with her son, and she described how D.D. respects her, always informs her of his whereabouts and abides by a curfew on weeknights of 8 or 9 p.m. and weekends of 11 p.m.-12 a.m. After his brother’s death there were three occasions where D.D. ran away from home when he had become very upset and went to a friend’s house. One of those occasions was when he travelled with an acquaintance to Thunder Bay and he was charged with the two offences for which he was put on six months’ probation, which in my view was of great assistance to D.D. in his beginning to understand and become more aware of how his grief and anger was impacting his decision-making. Ms. F. described D.D. as being compliant with her expectations: he washed the dishes, cleaned his room, vacuumed, attended school and did whatever he was asked to do. She described being able to have conversations with D.D. about any negative behaviour and consequences for occasions when he was non-compliant, but these were rare occasions according to Ms. F.

[13] D.D. advised he gets along well with his mother, feels comfortable talking with her about problems and although he sometimes gets upset, he loves her. He advised Ms. Riley during her assessment that his mother is “someone he relies on.” Ms. Riley observed in her report that D.D.’s relationship with his mother is filled with open communication and closeness. Ms. F. confirmed this and was of the view their relationship had improved as he was focusing more on school, work and was less preoccupied with his thoughts and feelings. This was a direct result of the substance abuse counselling he was involved in from April to August 2020 while he was on probation.

[14] D.D. described having a positive relationship with his father and is now working with his father in Brampton and speaks to him by phone during the week. D.D. told Ms. Riley he has a good relationship with his father that is “filled with respect and support.” He began working for Office […], his father works at in Oakville since Grade 10 on weekends. Currently during the school year he works part-time on weekends and works full-time in the summer. D.D. worked full-time from June to August 2020 during COVID-19. Exhibit 3A is a letter from Dwayne Budram, Operations Manager of Office […], which confirms D.D.’s employment (both full-time summer 2020 and part-time weekends during school (fall 2020) and that he is a valued employee.

[15] Ms. F. reports that D.D. has associated with the same group of friends since he was in daycare. D.D. noted all of his friends have youth court records but denied being pressured by this group of friends to become involved in antisocial behaviour. Ms. F. reported his friends, who she knows and approves of, are the same age and are a positive influence on D.D. Both Ms. F. and D.D. advised he began getting into trouble with the law when he strayed from his positive peer group and began associating with an older negative group. D.D. recognized as a result of surrounding himself with his positive peer group he no longer is getting into trouble.

[16] Alcohol was something D.D. tried in Grade 9 and consumed every few months on special occasions. Both D.D. and his mother denied D.D. had a problem with alcohol, although Ms. F. reported a history of alcohol addiction in D.D.’s paternal family. D.D. first tried marihuana in the summer leading to Grade 9. Initially he smoked monthly but has increased his use to daily and recently smokes daily and sometimes numerous times a day. He admitted smoking when he is mad or bored but acknowledged he does not smoke if he is doing something productive or he has tasks to complete. He does not believe he has a dependency on marihuana, but his mother is concerned he is using marihuana daily and she believes he is self-medicating to cope with his grief and the loss of his brother.

[17] Prior to COVID-19, D.D. volunteered coaching basketball at the East Scarborough Boys & Girls Club on weekends. Ms. F. described the positive relationship D.D. developed with the coach and mentor of the program. D.D. was also involved with a family friend’s organization, One Mic Educators. Exhibit 3B is a letter from Luis Eduardo Mejicano, proprietor of One Mic Educators, who confirmed D.D. completed 50 hours of community service work. This letter was very positive concerning D.D.’s involvement with this organization, which mentors youth through arts education. Mr. Mejicano offered his support to D.D. in securing a position with the Community Healers Project. Since COVID-19 started he has been unable to continue these activities but indicated his desire to continue his involvement. D.D. described spending his spare time playing video games, playing basketball, seeing friends and making music. His mother has observed a renewed interest in basketball, which previously had been a passion of his.

[18] Ms. F. described her son as “extremely intelligent, a class clown, loving, great with children, has a good moral compass and interested in making positive social justice changes.” D.D. recognized he needed to learn how to better manage his feelings of anger and stress, so he did not react impulsively. He indicated the counselling he had received on probation had helped him as he has learned how to express his feelings by using words. His mother advised she feels D.D. has improved significantly in his emotion regulation and anger management, however she believed he would benefit from further improvement. She indicated she has observed D.D. as being calmer, less frustrated, less impulsive and self-destructive and has less outbursts.

[19] In the fall of 2020, D.D. was completing his Grade 12 at […] Collegiate Institute. When he was arrested in Thunder Bay in February 2020, his mother unenrolled him and after his release D.D. chose to re-enroll himself in school. He is currently attending Grade 12 in-person and online as confirmed in he PSR. In the Section 34 report expressed a pessimistic attitude in regard to his education. He expressed to Dr. Marshall that he could not adapt to virtual learning. It is recommended in the s. 34 report that D.D. become involved in the Ontario Youth Apprenticeship Program, where he would “receive mentorship support, develop an individualized training plan and recognize clear connections between his learning in the classroom setting, his experiences on the job, and achieving future goals for his career.”

[20] Ms. F. reported she sought counselling for D.D. from Tropicana Community Services, East Metro Youth Services, Hope in the Six, Centre for Addiction and Mental Health (CAMH) Substance Abuse Program for African Canadian and Caribbean Youth, although she was disappointed as these agencies could not provide D.D. with the support he needed. The probation officer noted that despite not wanting at that point to seek help, D.D. attended programming and counselling at the direction of his mother.

[21] In March 2020, D.D. expressed to his then probation officer he was not interested in counselling to address the trauma and grief in his life but was willing to attend as directed by probation to fulfill the programming condition in his probation. He had attended counselling previously but found it to be an emotional and difficult experience. Despite his reluctance D.D. attended counselling at Central Toronto Youth Services Substance Use Counselling Program in April 2020 and was assigned to Substance Use Specialist, Sydney Kelman, to address his marihuana use as a copying mechanism in dealing with unresolved issues surrounding his brother’s death. He met with Ms. Kelman consistently until the end of his probation. Ms. Kelman described D.D. as smart, self-aware and reflective. He felt his counselling with Ms. Kelman was beneficial as he became more aware of himself and his actions. He did not believe it helped his trauma or grief but did help him learn to stop or prevent himself from engaging in negative behaviours, developing anger management skills and to learn to walk away from situations. He does not feel he needs to continue in counselling further because of his progress but will continue if he is required to attend and directed to do so. D.D. consistently reported and complied with the conditions of his probation order and during that time he completed two school credits, worked full-time from June to August 2020, as well as achieved his goal of regularly participating in counselling.

[22] He advised he became involved in the current offence because he wanted to buy himself an expensive pair of shoes and did not want to ask his mom for the money. He said the two other persons involved were only acquaintances who he did not know well, and it was their idea to commit the offence. He takes responsibility for his actions and notes he should have taken more time to think about what he was getting involved in. He described his involvement as not a smart decision and stated he feels ashamed of his actions and will not do it again, as he did not gain anything from it and the victims were traumatized because of it. He told the probation officer he felt bad for the two victims and wishes he could take back his actions, as he is genuinely sorry for what he did. He discussed the impact of his actions and recognized the victims were likely scared to work at night and do not feel safe. D.D. advised he is willing to make reparations for his actions and is willing to apologize to the victims.

[23] Ms. F. expressed her belief that D.D. would continue to progress positively with a community-based sentence and is of the view a custodial sentence might result in reducing the progress he has made. She advised she believes D.D. would benefit from a culturally specific program, a program where he could mentor others, a psychological assessment to access supports and assistance in developing long-term life goals.

Aggravating and Mitigating Circumstances

[24] The Crown points to the fact that one of the other persons involved in this robbery brandished an imitation firearm and made threats. An important aspect of this incident is the fact D.D. did not possess the imitation firearm. Further, both victims expressed to the police they believed the firearm was fake and not a real gun. However, I agree with the Crown this is an aggravating circumstance, which is present in this case.

[25] A further aggravating circumstance is the fact all of the three persons involved wore hoodies and something hiding their faces. The Crown argued this was a robbery that was planned and represented a deliberate action on the part of the three individuals. While I agree with the Crown’s submission, it is clear from the facts that D.D. was clearly not experienced in engaging in this type of incident as he was not wearing gloves, as were the other two persons. This led to his identity being discovered about a year later. To some extent this may corroborate D.D.’s explanation to the probation officer as to how he became involved in this incident with two acquaintances he did not know well and who suggested he assist them. Certainly D.D.’s involvement was unsophisticated given his decision not to wear gloves and to jump over the counter placing his bare hand on the plastic or glass case containing the lottery tickets.

[26] The Crown also points to the fact this robbery occurred in a convenience store, where the clerks are particularly vulnerable to this type of activity. A robbery of a convenience store, at night, is an aggravating circumstance. In my view this was a serious offence for D.D. to become involved in, as his first involvement in criminal activity.

[27] It is a significant mitigating circumstance that D.D. is a youthful first offender and has no previous involvement with the police by way of alternative measures and has no prior involvement with any youth court record of any kind. He was 15 years of age when this offence was committed. His young age is also a significant mitigating circumstance. He indicated an early intention to plead guilty to these charges and he fully accepted responsibility for his actions. D.D. has expressed remorse for his actions and has displayed a recognition of the trauma and harm his actions caused the two victims working in the convenience store. It is my view that D.D.’s remorse is genuine as is the insight and awareness he expressed to the probation officer. Further, D.D.’s guilty plea obviated the necessity of a trial, which spared the victims having to relive the incident and saved the court costs associated with a trial. These are all significant mitigating circumstances to be considered in determining a fit and proportionate sentence. It is my view that this lack of sophistication on D.D.’s part was what resulted in his being charged and brought him face to face with his having to make a decision to change the path of life he was on. As will be seen, I believe D.D. has made significant inroads and progress in following through with his decision to make that change.

[28] D.D. has suffered significant trauma and grief as a young teenager in terms of his father being incarcerated when D.D. was 13 years of age, about to start high school. Shortly after his father’s incarceration, when D.D. was still 13 years old, his older brother was shot and killed in a homicide. Both of these events are described by D.D.’s mother as having a detrimental impact on him in terms of anger and grief. D.D. was also the victim of a knifepoint robbery where his chain and pendant, containing his brother’s ashes, were stolen. D.D. was also the victim of a gunpoint robbery and a close friend of his was killed in another shooting. His mother recognized the significant traumatic impact all of these events had on her son and arranged for counselling for him, although she was disappointment by the lack of support the various agencies were able to provide. In my view these events, which occurred when D.D. was a young teenager, provide insight and an explanation into why D.D. became involved in such a serious offence. As a result of his being referred by probation to the Central Toronto Youth Services Substance Use Counselling Program and the counselling he engaged in with Sydney Kelman, a Substance Abuse Specialist, D.D. has made very positive changes as recognized by his mother and as demonstrated by his continuing his schooling, working with Office […], as well as his involvement doing community service. In my view D.D.’s rehabilitative transformation should merit significant consideration in mitigation in determining what a proportionate sentence should be (see R. v. J.S., 2009 ONCA 812 at paras 1, 4 and 5 (C.A.)).

[29] In Dr. Patel’s report in the s. 34 report he concluded that D.D. met the criteria for an underlying diagnosis of post-traumatic stress disorder, where D.D. continues to experience flashbacks on a monthly basis regarding the various traumatic incidents he has endured. He has also experienced complex grief reactions that are best encapsulated by this diagnosis of PTSD. His current method of coping with his PTSD symptoms is to abuse high quantities of cannabis, such that Dr. Patel also concluded D.D. meets the criteria for an underlying cannabis abuse disorder (severe), which Dr. Patel finds is D.D. attempting to self-treat his PTSD symptoms and concomitant low mood. Dr. Patel also points to the current pandemic as acerbating D.D.’s cannabis use. In my view this is all part of the mitigating circumstances surrounding the traumatic events which occurred when D.D. was a young teenager.

[30] D.D. was ultimately released on a curfew (9 p.m. to 6 a.m.) release order with his mother acting as surety. He spent three days in pre-trial custody before being released. Other than his charges in Thunder Bay, on February 17, 2020, for breaching this curfew by being out of his mother’s residence, D.D. has complied with the terms of his release order and has not been involved in any other criminal activities or involved with the police. He spent a further 11 days in closed custody as a result of this breach, which he pleaded guilty to and he was placed on probation for six months. He has not committed any further criminal offences for the past 13 months.

[31] D.D. has a supportive family involving his mother, older sister and his father, as well as his extended family, with whom he has good relationships and interacts well with. This is a mitigating circumstance as well. Currently, D.D. has pro-social goals in terms of completing his high school and then seeking to work in the trades or as an electrician, both of which may require further education, training or some form of apprenticeship.

[32] A further mitigating circumstance is the psychological testing results from Dr. Marshall’s psychological testing (Youth Level of Service/Case Management Inventory) in consultation with Ms. Riley, which determined D.D.’s results fall in the range associated with low risk of recidivism. It is my view this is also a mitigating circumstance.

Sentencing Principles Applicable under the YCJA

[33] Parliament, in enacting the Youth Criminal Justice Act (YCJA), aimed to correct an over-reliance by the justice system on custodial sentences, a practice which evidence showed did not benefit society or the young offender.

[34] The YCJA carefully details the guiding principles that must be relied on when interpreting provisions within the Act:

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

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

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

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

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

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

(i) rehabilitation and reintegration,

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

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

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

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

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

(i) reinforce respect for societal values,

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

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

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

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

[35] The purpose of sentencing under the YCJA is set out at section 38(1). The purpose of sentencing under section 42 (youth sentences) is to “hold a young person accountable for his or her conduct by imposing just sanctions that have meaningful consequences to the young person and promote his or her rehabilitation and reintegration into society.” The focus of sentencing is to protect society through an attempt to rehabilitate and reintegrate the youth back into the community. As a result of the recent amendments, courts can now consider the need for specific deterrence and denunciation in sentencing in youth matters.

[36] Section 38 of the Act goes on to set out principles and factors that must be considered in fashioning an appropriate sentence. 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 (set out above) and the principles set out in s. 38(2) of the YCJA. Under s. 38(2)(b) any sentence imposed “ must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances.”

[37] Sentences in Youth Court must “be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence,” (see s. 38(2)(c)); and “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,”(see s. 38(2)(d)). In order to comply with s. 38(2)(c), the sentence must (i) be the least restrictive sentence that is capable of achieving the purpose set out in s. 38(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,” (see s. 38(2)(e)). Further a youth sentence, subject to s. 38(2)(c), may have the following objectives: (i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences, (see s. 38(2)(f)), which was added to s. 38(2) as a result of the 2012 amendments to the YCJA. General deterrence as a sentencing principle continues to have no place in determining an appropriate youth sentence, even for violent offences.

[38] The Supreme Court of Canada directed in R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 33 and 34, that the principle of general deterrence does not apply to youth sentences:

In the same way, when the statute speaks of "accountability" or requires that "meaningful consequences" be imposed, the language expressly targets the young offender before the court: "ensure that a young person is subject to meaningful consequences" (s. 3(1)( a )(iii)); "accountability that is consistent with the greater dependency of young persons and their reduced level of maturity" (s. 3(1)( b )(ii)); "be meaningful for the individual young person given his or her needs and level of development" (s. 3(1)( c )(iii)). Parliament has made it equally clear in the French version that these principles are offender-centric and not aimed at the general public: …

In my view, the words of the statute can only support the conclusion that Parliament deliberately excluded general deterrence as a factor of youth sentencing.

[39] Although s. 38(2)(f) added the sentencing principles of denunciation and specific deterrence, general deterrence was not added and remains excluded as a factor to be considered during a youth sentencing.

[40] A Youth Court sentencing judge must consider the following factors in determining the appropriate sentence, pursuant to s. 38(3):

(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.

[41] The starting point in any analysis of whether a custodial sentence is an appropriate sentence for a young person is a consideration of s. 39 of the YCJA. Section 39(1) allows a court to consider a custodial sentence in only four circumstances:

(1) A youth justice court shall not commit a young person to custody under s. 42 (youth sentences) unless

(a) the young person has committed a violent offence;

(b) the young person has failed to comply with non-custodial sentences;

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or findings of guilt or of both under this Act or the Young Offenders Act, R.S.C. 1985, c. Y-1; or

(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

[42] In my view the gateway to a custodial sentence is open for consideration under s. 39(1)(a) because D.D. has committed what can only be described as a “violent offence.” The definition of “violent offence” was considered by the Supreme Court of Canada in R. v. C.D.; R. v. C.D.K., 2005 SCC 78, [2005] S.C.J. No. 79, at paras. 81-87, where the majority held “violent offences” are those offences were a young person causes, attempts to cause or threatens to cause bodily harm. The definition of "violent offence" now found in s. 2(1) of the YCJA states:

(a) an offence committed by a young person that includes as an element the causing of bodily harm;

(b) an attempt or a threat to commit an offence referred to in paragraph (a); or

(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

[43] In my view the robbery of a convenience store’s two clerks, where an imitation handgun is brandished by one of the perpetrators although not the young person being sentenced, even if the clerk believes the handgun is fake and not real, is an attempt or threat by the perpetrators to cause bodily harm to the clerks if they do not comply with the perpetrators’ demands. Bodily harm includes both physical harm as well as psychological harm ( see R. v. McCraw, [1991] 3 S.C.R. 72, which defined " serious bodily harm " as "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant"). It follows “bodily harm” would include any hurt or injury, whether physical or psychological that interferes in any way with the physical or psychological integrity, health or well-being of the compliant.

[44] Despite the above finding, s. 39(2) directs if any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all reasonable alternatives to custody. I must impose the least restrictive sentence that is proportionate, considering the seriousness of the offences and D.D.’s degree of responsibility. I must impose a sentence that also promotes D.D.’s rehabilitation and re-integration into society. I must keep in mind the goal of the YCJA was to reduce and restrict the use of custody for young persons.

[45] Section 39(3) of the Act sets out factors to be considered in determining whether there are reasonable alternatives to custody:

(a) the alternatives to custody that are available;

(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and

(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

[46] In determining whether a non-custodial sentence will meet the objectives of the YCJA, a court must consider whether the sentence is sufficient to hold a young person accountable for the offence. The Court of Appeal has provided guidance as to what it means to hold a young person who offends accountable. In R. v. A.O., 2007 ONCA 144, [2007] O.J. No. 800, (C.A.), at paras. 46-47, Justice Rosenberg held that "accountability in the YCJA is the equivalent of the adult sentencing principle of retribution, reflecting "the moral culpability of the offender, having regard to intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct." Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society. The purpose of accountability in this context would seem to exclude accountability to society in any larger sense or any notion of deterrence ( see R. v. A.O., at para. 42).

[47] Before dealing with whether there are alternatives to custody that are reasonable in all of the circumstances of this case I must first determine whether s. 39(1)(d) has applicability on the facts of this case, in other words, are the aggravating circumstances of this robbery so exceptional that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38. The question therefore is whether the facts in this case amount to the type of “exceptional case” contemplated by this section?

[48] In R. v. R.E.W., 2006 ONCA 1761, [2006] O.J. No. 265 (C.A.), at para. 31, Rosenberg J.A. explained how s. 39(1)(d) should be interpreted:

[31] The theme that runs through the use of the term "exceptional" in both criminal case law and legislation is that it is intended to describe the clearest of cases. Such cases include those where applying the normal rules would undermine the purpose of the legislation, where the exercise of the unusual power is necessary or required, and where the exercise of the unusual jurisdiction is capable of explanation. The wording of s. 39(1)(d) is consistent with this approach. The exceptional power to commit a young person to custody is reserved for those circumstances where, in effect, any other order would undermine the purpose and principles set out in s. 38. The analysis of s. 39(1)(d) must be set against the background of s. 38, which stresses the importance of interfering with a young person's liberty as little as possible. For example, s. 38(2)(d) states that youth justice courts should consider "all available sanctions other than custody that are reasonable in the circumstances". Section 39(2)(e) further directs that youth court justices should apply the "least restrictive sentence" and "the [sentence] most likely to rehabilitate the young person". [ emphasis added ]

[49] To avoid any remaining uncertainty concerning the proper interpretation to be given to s. 39(1)(d), Rosenberg J.A. repeated his conclusions at para. 41:

• The object and scheme of the YCJA and Parliament's intention indicate that the Act was designed to reduce the over-reliance on custodial sentences that was the experience under the YOA. See R. v. C.D.; R. v. C.D.K., supra, at para. 50.
• An expansive definition of "exceptional cases" would frustrate Parliament's intention to reduce the over-reliance on custodial sentences.
• Section 39(1)(d) can be invoked only because of the circumstances of the offence, not the circumstances of the offender, or the offender's history.
• Exceptional cases are those where any order other than custody would undermine the purposes and principles of sentencing set out in s. 38. Put another way, s. 39(1)(d) is intended to describe the rare non-violent cases where applying the general rule against a custodial disposition would undermine the purpose of the YCJA.
• Exceptional cases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can be justified.
• One example, of an exceptional case is a case where the circumstances are so shocking as to threaten widely-shared community values.

[50] Justice Rosenberg, at para. 45, indicated he was in agreement generally with Harris J’s commentary in the Youth Criminal Justice Act Manual, looseleaf (Aurora, ON: Canada Law Book Inc., 2005) at 4-17:

Presumably the offence that would trigger the use of custody under this subsection would be so exceptionally aggravated that custody was the only proportionate consequence that would hold the youth accountable through the imposition of just sanctions, thereby contributing to the long-term protection of the public.

In addition, Justice Rosenberg endorsed the comments by Taylor J. in R. v. J.E.C., 2004 BCSC 1341, [2004] B.C.J. No. 2244 (B.C. Sup. Ct.):

Subsection (d) seeks to introduce a sense of proportionality in exceptional cases where the circumstances of the offence are so aggravating that they outweigh what otherwise would be relevant considerations, such as the offender's background or other forms of disposition.

[51] Having regard to the decision in R. v. R.E.W., supra, it is my view the Crown has failed to establish that the indictable offences committed by D.D. meet the requirements of s. 39(1)(d). This in no way minimizes the seriousness of the offences or overlooks the community’s appropriate denunciation of D.D.’s conduct. The facts of this case, however, fail to disclose such exceptionally aggravating circumstances that a custodial sentence is the only proportionate sentence that would hold D.D. accountable.

Position of the Parties

[52] Mr. Skelton seeks a sentence of 12 months less any credit for pre-trial custody or restrictive release conditions. It was his submission the custody should be 8 months of open custody (having regard to the very positive PSR) and 4 months of community supervision. It was his submission the two gateways to a custodial sentence were pursuant to s. 39(1)(a) and (d). As I have indicated above, I do not agree with the Crown’s submissions respecting s. 39(1)(d).

[53] Ms. Bavaro argued that none of the gateways to custody in s. 39(1) are open on the facts of D.D.’s case and accountability could be achieved through the imposition of meaningful consequences and sanctions that promote D.D.’s rehabilitation and reintegration into society. Ms. Bavaro relies on R. v. R.E.W., 2006 ONCA 1761, [2006] O.J. No. 265 (C.A.) to support her submission that this is not an exceptional case where the aggravating circumstances of the offence are such that a non-custodial sentence would be inconsistent with the principles set out in s. 38. As I indicated above, as well as during submissions, it is my view the robbery charge contains facts which fall within s. 39(1)(a), as a robbery offence involving a convenience store, is a “violent offence.”

Sentence Imposed

[54] Sentencing is a highly individualized process that is dependent on the unique facts surrounding the offence and offender. No two cases are identical and there are often significant differences between the circumstances of individual cases (see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92).

[55] I have already found that s. 39(1)(a) is applicable to the facts of this incident and as a result, there is a gateway available to potentially impose a custodial sentence. In my view s. 39(1)(b) and (c) are not applicable in this case. Of course, it does not automatically follow that a custodial sentence must be imposed when there is a gateway available pursuant to s. 39(1)(a) to impose a custodial sentence. As I have indicated above, s. 39(2) provides that a youth court shall not impose a custodial sentence under s. 42 unless the court has considered all alternatives to custody and determined if there are reasonable alternatives or combination of alternatives that are in accordance with the purpose and principles set out in s. 38.

[56] In R. v. H.A.H., 2018 ONCJ 635 at para 32 (O.C.J.), Justice D. Fairgrieve made the following observation where a youth was convicted after trial of possessing a loaded prohibited firearm in a motor vehicle.

Given the sentencing policy dictated by the YCJA, however, the default position is not to assume that serious offences like the ones committed by H.A.H. necessarily warrant a custodial sentence. The opposite is true. As Rosenberg J.A. explained, the statute has in fact enacted a prohibition against making such a leap, regardless of whether one might have justifiably expected a jail term for an adult offender who committed the same offences. General deterrence, to repeat it, is not to be taken into account here.

I concur with his interpretation of Justice Rosenberg’s decision in R. v. R.E.W.

[57] The Crown provided me with R. v. Q.W. and T.C., 2020 ONCJ 3615 (OCJ), one of my decisions, involving a series of well-planned, sophisticated bank robberies involving two young persons and an adult co-accused (who received 4 years in the penitentiary). Significant amounts of money were taken during these robberies with the bulk of the money not being recovered, three different stolen cars were utilized during the robberies, which occurred in four different municipalities, victim impact statements from the bank tellers were provided, (one teller was grabbed by her arm, spun around and verbally threatened by one of the youth), which demonstrated continuing and substantial psychological harm (some of the tellers were not able to return to their employment because of PTSD). Mr. Skelton conceded the facts and aggravating circumstances present in R. v. Q.W. and T.C. are vastly different from the facts in D.D.’s case. The effective sentence imposed for Q.W. was 15 months (open custody and supervision) followed by 12 months’ probation and for T.C. 12 months and 12 days (open custody and supervision) followed by 12 months’ probation.

[58] Ms. Bavaro provided a number of sentencing decisions. Which she argued supported her position:

1. R. v. K.C., 2014 ONCJ 445 (OCJ, Cohen J.): K.C. entered an early guilty plea to robbery with a firearm (his co-accused had the gun), K.C. assaulted one of the victims by punching him in the face repeatedly, causing his cheek to split, which caused a small permanent scar. The violence was found to be gratuitous. K.C. was an active participant in the robbery, the physical and psychological harm K.C. caused to the victim and his family was significant and ongoing. K.C. was a youthful first offender. He had experienced a very difficult upbringing, The PSR and s. 34 report were prepared and the sentencing judge considered. K.C. had spent 16 days in pre-trial custody and was subject to house arrest bail for 10 months. The sentence imposed was 5 months probation followed by 4 months in open custody and 2 months supervision, unless upon reviewing K.C.’s progress while on probation a determination was made to convert the 4 months open custody and 2 months supervision to an additional 6 months probation.
2. R. v. J.S., 2009 ONCA 812: J.S. and accomplice robbed a convenience store at night. Masks and black clothes were worn, J.S. threatened the clerk with an imitation firearm, while his accomplice brandished a knife. J.S. entered a guilty plea. The youth court judge imposed a 12 month probation order. The Ontario Court of Appeal held the youth court judge failed to recognize the seriousness of the offence and also failed to address the requirement that the young person be held accountable for his actions and that meaningful consequences flow from the sentence imposed. As result the disposition was unfit. However, the Court of Appeal found the young person had made exceptional rehabilitative progress during the nine months since his sentencing hearing. J.S. had steadfast support of his father. The Court held J.S.’s rehabilitative transformation merited significant consideration in mitigation and agreed with the Crown’s suggestion that the 12 month probation sentence be set aside, and a 3 month deferred custody sentence followed by 1 year probation be substituted.
3. R. v. S.B., 2003 ONCJ 2515 (OCJ, King J.) S.B. (17 years old) pleaded guilty to robbery and fail to comply with disposition. S.B. with three adults robbed a 17 year old victim of his jacket. One of the adults produced a knife and went through the victim’s pockets and took his wallet, cell phone and change. The victim’s watch and two rings were also taken. One of the adults took the victim’s bank card and compelled him to go to an ATM and withdraw $380, which was taken. The rings were recovered but the jacket was not. S.B. had a youth record with several custodial dispositions, both open and closed custody. At the youth court judge’s request an intensive plan was created by Springboard Youth Court Action Planning program. S.B. spent 3 days in pre-trial custody and 1 year on house arrest bail. The sentence imposed was 12 months probation involving the Springboard plan, 60 hours of community service and restitution of $80, as one of adult accused had already paid restitution of $320.

[59] I have seen other sentencing cases, similar to R. v. K.C., supra, where the youth court judge imposed and ordered a period of probation under s. 42(k) to commence before a custody and supervision order under s. 42(n) is imposed, with a provision that the custody and supervision order could be converted into a further period of probation depending on the interim probation report provided before the completion of the probation. I do not believe that the provisions under s. 42 permit such a sentence to be imposed having regard to the opening words of s. 42(2), which provides,

When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other…

[60] In my view, the Ontario Court of Appeal’s decision in R. v. J.S., supra, is dispositive of the appropriateness of the approach followed in R. v. K.C. A probationary term for a robbery involving a handgun or an imitation firearm fails to recognize the seriousness of the offence and fails to properly address the requirement that the young person be held accountable for his actions and that meaningful consequences flow from the sentence imposed.

[61] Section 42(5) provides for a deferred custody and supervision order pursuant to s. 42(2)(p), which is similar to a conditional sentence under s. 742.1 of the Criminal Code of Canada. The maximum length is six months. The sentence is only available if “the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm.” I was not provided any victim impact statements by either of the two store clerks, although I was advised they were requested. As a result I do not have any evidence of whether D.D.’s actions caused serious bodily harm to either of the two clerks. As I indicated during Counsel’s submissions and earlier in these reasons, there is a reasonable inference, even without a VIS, that the experience of being robbed where an imitation firearm is brandished would have some psychological impact to address s. 39(1)(a). The Agreed Statement of Facts does not contain any facts indicating what was said by D.D. or his two co-perpetrators to the store clerks. There were no facts presented which indicated any of the perpetrators engaged in gratuitous violence towards the clerks. It is my view therefore that a “deferred custody and supervision” sentence under s. 42(2)(p) is available on the facts presented in this case. The Crown conceded a “deferred custody and supervision” sentence was available on the facts of this case but submitted it was not appropriate as an actual custodial sentence was called for.

[62] There can be no doubt that a robbery of a convenience store, where one of the assailants brandished an imitation firearm, is a serious criminal offence and where the gateway to a custodial sentence is available under s. 39(1)(a). However, the only circumstance where a custodial sentence is mandated is where s. 39(1)(d) applies and I have found that the Crown has failed to prove the facts of this case amount to exceptional aggravating circumstances. As Justice Rosenberg held in R. v. R.E.W., “ Exceptional cases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can be justified” and an “example of an exceptional case is a case where the circumstances are so shocking as to threaten widely-shared community values.” The Ontario Court of Appeal has held that exceptional cases should be narrowly construed, as an expansive definition would undermine the clear intention of the YCJA to reduce the over-reliance of custodial sentences for young persons.

[63] Where the gateway to a custodial sentence is available, s. 39(2) provides that the youth court judge must consider all reasonable alternatives to custody that are in accordance with the purpose and principles set out in s. 38. The Ontario Court of Appeal in R. v. J.S., supra, held that where a young person has demonstrated a rehabilitative transformation, as J.S. had in the first 9 months of the probation ordered, this merits significant consideration in mitigation. In that case J.S. threatened the store clerk with an imitation firearm during a robbery and his accomplice had a knife, which was brandished. The Court allowed the Crown’s appeal of the sentence and substituted a three month “deferred custody” sentence, followed by 12 months’ probation. In my view this decision holds that in the appropriate circumstances a “deferred custody and supervision” sentence, together with probation is a reasonable alternative to actual custody. The significance of a “deferred custody and supervision” sentence is that if the young person commits further criminal offences the youth court can order the young person serve the remainder as if it were a custody and supervision sentence pursuant to s. 109(2)(c) and s. 42(2)(n).

[64] A young person’s personal circumstances and their history are to be considered in assessing whether there are reasonable alternatives to a custodial sentence. It is my view that D.D. has demonstrated his willingness and determination to address the trauma and grief he experienced as a young teenager and gain further insight into developing strategies to address his anger and grief. D.D. has already actively participated in counselling with Sydney Kelman, a Substance Abuse Specialist at Central Toronto Youth Services Substance Use Counselling Program as part of substance abuse counselling between April and August 2020. This was part of his 6 month probation order made on February 27, 2020, yet even after his probation was completed D.D. continued to contact Ms. Kelman because of their positive and trusting relationship. He completed 50 hours of community service during the COVID-19 pandemic in anticipation of his guilty plea and sentencing, he also worked full-time during the summer of 2020 and since September has worked part-time after he resumed Grade 12 in high school. In the PSR, D.D. expressed his remorse, insight and empathy for the harm his conduct caused the two store clerks. This is also reflected in Ms. Riley’s assessment (p.7) where she indicated, “D. expressed a significant level of remorse and understanding of how the victims may have been impacted. D. was able to acknowledge empathy and remorse for what his actions have done to the victims of the store. He stated his actions had a negative impact on the victims and that the victims were most likely traumatized. In addition, D. was able to provide insight into what factors had led to his offending behaviour.” Dr. Patel also reported that D.D. expressed regret for his actions and the risk he created for the victims and himself, “anything could have happened.” D.D. has complied with his release order for the past 13 months without any further involvement with the police or courts. The PSR and s. 34 Report confirm the tremendous support D.D. has from his mother and father, as well as his extended family.

[65] It is my view D.D. has done exceptionally well in attempting to overcome and in addressing the issues related to the trauma and grief he has personally experienced and making what in my view can only be described as significant steps towards his successful rehabilitation and reintegration into the community. The PSR corroborates the significant positive changes that have occurred since October 2018 when D.D. became involved in this criminal conduct as does the s. 34 Report provided on March 16, 2021. It was extremely encouraging to me the willingness demonstrated by D.D. in his involvement and cooperation with all of the phases required in the preparation of the s. 34 report. In my view this signifies D.D.’s continued participation and cooperation in addressing the issues identified and I have every confidence he will succeed through his own determination and the support of his family, particularly his parents, as well as his counsellors.

[66] In my view the only area of concern is D.D.’s continued reliance on marihuana to cope with the trauma, anger and grief he has experienced at such a young age. What is encouraging, however, is his insight and awareness that he does not smoke marihuana if he is doing something productive or he has tasks to complete and he recognized he was smoking when he was mad or bored. The probation officer who authored the PSR recommended D.D. resume substance abuse counselling with Ms. Kelman and she indicates D.D. is “open to continue working with his counsellor to address his substance use as a coping mechanism to cope with trauma and grief.” The recommendation by Dr. Patel and Ms. Riley that D.D. be referred by his family doctor for monitoring and medical management in relation to Dr. Patel’s diagnoses.

[67] The Crown pointed to the fact that D.D. advised the probation officer he did not think he needed any further counselling as he had learned everything he needed to and submitted this was something I should be concerned about. However, I have to consider a young person’s reduced maturity and moral sophistication. The YCJA is based on the principle of diminished moral blameworthiness, both as a principle of fundamental justice under s. 7 of the Charter and s. 3(1)(b) of the YCJA. In R. v. D.B., 2008 SCC 25, at para. 41, Justice Abella states that the sentencing regime for young persons is based on the recognition,

that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment.

Although D.D. told the probation officer he did not think he needed any more counselling he indicated he was prepared to do more if he was directed to by the court as part of a probation order. In fact, he has continued to see Ms. Kelman despite his probation ending in August 2020. As I indicated to the Crown, it is my belief this comment by D.D. was directly related to his reduced level of maturity at the time of the preparation of the PSR and his life experience, which is recognized in s. 3(1) of the YCJA. It is my view his involvement with the administration of justice and its participants has been a great learning experience for D.D., which he has benefited from.

[68] Associated with the principle of diminished moral blameworthiness or culpability is the fact of “timely intervention that reinforces the link between the offending behaviour and its consequences” (s. 3(1)(b)(iv)) and “the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time” (s. 3(1)(b)(v)). This offence was committed on October 2, 2018, which will be almost two and a half years from the date I will impose the sentence for D.D. The delays in this case initially occurred because of the inability of the police to identify the palm print and fingerprint found on the convenience store’s counter. D.D. always expressed a desire to accept responsibility for his actions and plead guilty after he was charged, however the COVID-19 World Pandemic intervened and caused further lengthy delays. I recognize the COVID-19 World Pandemic has further delayed a timely intervention between D.D.’s offending behaviour and its consequences. It is my strong view, supported by his mother’s observations that imposing a custodial sentence on D.D. at this late stage in the proceedings would have a detrimental impact on him and the significant “rehabilitative transformation” (to borrow the consideration referred to in R. v. J.S.) he has begun could be jeopardized.

[69] D.D. has been assessed to be a low risk to reoffend and Dr. Patel has identified two psychiatric disorders, which played a role in his becoming involved in the incident from October 2018. D.D. recognizes the role the past traumatic events played in his involvement in this incident, which again augurs well in his continued successful rehabilitation and reintegration into the community.

[70] Considering all the aggravating and mitigating circumstances surrounding the seriousness of this offence and D.D.’s diminished moral blameworthiness, together with the unique circumstances present in his background and the significant rehabilitative steps he has already taken, it is my view that a custody and supervision order is not an appropriate or proportionate sentence, as there are reasonable alternatives to a custodial sentence available that are in accordance with the purpose and principles set out in s. 38.

[71] In my view continued counselling to address his feelings of loss, grief and anger surrounding the traumatic events of his early teenage years, particularly relating to the death of his older brother is a paramount objective in this sentencing. D.D. has previously expressed his reluctance to engage in therapeutic counselling because of the painful memories and feelings it brought to the surface, however, I believe he has recognized through his counselling sessions with Ms. Kelman the positive benefits that come out of that relationship as he gains insight and awareness.

[72] It is my view, based on the PSR and the s. 34 report that D.D. should be referred to “a grief counsellor for unresolved grief related to his brother’s death.” I agree with Ms. Riley’s, the probation officer, Rosanna Tamburro’s, and D.D.’s mother, Ms. F.’s recommendation that D.D. should have culturally specific programming with a grief counsellor trained in working with Black youth and families, such as Tropicana Community Services or the John Howard Society’s, Crossroads Youth Program. I will leave these decisions about counselling and programs to be worked out between D.D. and his probation officer and I anticipate his mother will also be involved in those discussions.

[73] The imposition of a non-custodial sentence in these circumstances, to quote the Supreme Court of Canada in R. v. D.B., supra, at para 93 “does not make young persons less accountable for serious offences; it makes them differently accountable.” Accountability, meaningful consequences and the protection of society are better achieved with D.D. for his involvement in these offences through a deferred custody and supervision order, which will involve continued counselling to address the underlying issues I believe led to his involvement in these offences. The deferred custody and supervision order is for a period of four months and I will discuss with counsel the terms and conditions, which are mandatory pursuant to s. 105(2) of the YCJA and those additional discretionary terms and conditions pursuant to s. 105(3) of the YCJA. The deferred custody sentence will be followed by 12 months of probation with terms and conditions as discussed with counsel.

[74] There will also be ancillary orders under s. 51 of the YCJA and a DNA order under s. 487.04(a)(xv) of the Criminal Code of Canada.

Released: March 25, 2021 Signed: Justice Peter C. West