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:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.
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:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.
ONTARIO COURT OF JUSTICE
DATE: 2021 06 25
COURT FILE No.: Region of Waterloo [at Kitchener] 20Y164(00)
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
M.B., a young person
Before Justice C.A. PARRY
Heard on July 13, 14, 15, 16, 17, 21, 22, 23, 24, and September 2, 2020
Trial Verdict released on December 14, 2020
Reasons for Judgment released on June 25, 2021
McMaster, A......................................................................................... counsel for the Crown
Jeethan, S................................................................................ counsel for the accused M.B.
RULING ON CROWN APPLICATION FOR AN ADULT SENTENCE
PARRY J.:
I. INTRODUCTION
[ 1 ] The Crown brings an application seeking to have M.B. sentenced as an adult.
[ 2 ] The Crown’s application follows this court’s decision on December 14, 2020, to find M.B. guilty of numerous charges stemming from two occurrences that occurred approximately one month apart in the spring of 2019.
[ 3 ] M.B. argues that the Crown has failed to rebut the presumption that M.B. ought to be sentenced as a youth. M.B. therefore argues that he ought to be the subject of a disposition under the YCJA.
II. A BRIEF OVERVIEW OF THE OFFENCES
[ 4 ] As noted, M.B. was involved in two separate occurrences. A full review of the facts of those occurrences can be found in my reasons for judgment: R. v. M.B., [2020] O.J. No. 6066.
[ 5 ] In the first occurrence, M.B. took part in an orchestrated and targeted attack on one or more persons at a Subway Restaurant shortly after 2 a.m. on April 19, 2019. In that attack, a group of young men travelled from Toronto, convened at a nearby condominium building, then drove across the street to the plaza in which the Subway was located. Then, four men exited their SUV and fired about 35 rounds at their target. M.B. was one of the shooters. Being in the university district and being around closing time for the local bars, the Subway contained numerous young people. One of the patrons received a bullet wound in each of his forearms. Cell phone evidence leads me to conclude that shortly after the shooting, M.B. and his accomplices returned back to Toronto. While the evidence established that M.B. was one of the shooters, it could not establish the degree to which M.B. took part in the conception, planning, and orchestration of the attack. I am unable to discern whether he was a low-ranking foot soldier or a field general.
[ 6 ] The court found M.B. guilty of the following offences stemming from his involvement in the April 19th attack:
(1) Discharge firearm with intent to endanger life, contrary to CCC s. 244(1).
(2) Aggravated assault [wounding] of Shahin Nourouzi, contrary to CCC s. 268;
(3) Possess firearm contrary to s. 51 order, contrary to CCC s. 117.01(1);
(4) Breach probation [by possessing a weapon], contrary to YCJA s. 137;
(5) Discharge firearm at or into a place knowing or being reckless as to whether any person is in that place, contrary to CCC s. 244.2(1)(a); and
(6) Discharge firearm while being reckless as to life or safety of another, contrary to CCC s. 244.2(1)(b).
[ 7 ] The second incident occurred on May 16, 2019. During that incident, an officer approached M.B.’s car to address his use of a cell phone while stopped at a traffic light. M.B. fled the scene as soon as the officer discovered a small bag of marijuana in plain view on the front seat. M.B. then lost control of his car about a kilometre away and crashed into a traffic pole. He abandoned the car and fled on foot into a nearby forest, leaving behind a fairly large quantity of marijuana in the trunk. He then tossed away his coat, which contained a handgun, before emerging from the forest at a condominium complex a few hundred metres from the accident scene. He then hailed a cab and returned to an address in Waterloo, the address from which he began his travels earlier in the day. The evidence reveals nothing about the owner of the car driven by M.B. or the resident(s) of the apartment from which M.B. commenced his ill-fated journey.
[ 8 ] The court found M.B. guilty of the following offences as a result of his activities on May 16, 2019:
(1) Possess prohibited firearm, a Glock 26, without having a licence, contrary to CCC, s. 91(1);
(2) Possession of a prohibited device, an oversized magazine, contrary CCC s. 91(2);
(3) Occupant of motor vehicle [BMW] that he knew had a firearm [Glock 26], contrary to CCC s. 94;
(4) Possess a loaded prohibited firearm without a licence, contrary to CCC, s. 95(1);
(5) Possess firearm with serial number removed, contrary to CCC, s. 108(1)(b);
(6) Dangerous driving, contrary to CCC, s. 320.13(1);
(7) Fail to stop for police, contrary to CCC, s.320.17;
(8) Breach Probation [weapons], contrary to YCJA, s. 137;
(9) Possess cannabis for purpose of distributing, contrary to Cannabis Act, s. 9(2);
(10) Possess more than 5 grams of cannabis, Cannabis Act, s. 8(1)(c); and
(11) Breach of a YCJA s. 51 order by possessing firearm, contrary to CCC, s. 117.01(1).
III. THE GOVERNING LEGAL PRINCIPLES
[ 9 ] The Youth Criminal Justice Act dictates that the criminal justice system for young persons must be separate from that of adults. Young persons are defined as people above the age of twelve or above and under the age of 18. This distinct approach to the sentencing of young people is founded upon a statutory recognition and presumption that young people possess a “diminished level of moral blameworthiness” due to their “reduced level of maturity.” In addition to being a presumption conferred by the YCJA, the presumption of diminished moral blameworthiness is constitutional entitlement: see ss. 2 and 3, YCJA; R. v. W. (M.), 2017 ONCA 22, at para 23.
[ 10 ] Although the YCJA presumes that young people will be sentenced in accordance with the sentencing provisions in the YCJA, it also permits the court to sentence young people as adults if the two conditions contained in section 72 of the YCJA have been met. Section 72 of the Act stipulates that the court shall impose an adult sentence on a young person if it is satisfied that the Crown has rebutted the presumption of the youth’s diminished moral blameworthiness and that a youth sentence would not be sufficient to hold the young person accountable for their offending behaviour. If the Crown fails to meet this two-part test, the young person must receive a youth sentence.
[ 11 ] In deciding whether the Crown has met its burden under section 72, the court ought to consider each prong of its two-part test separately: R. v. W.(M.), supra.
[ 12 ] In deciding whether the Crown has rebutted the presumption of diminished moral blameworthiness, the focus of the Court’s inquiry must be on the issue of maturity. The Act presumes that young people possess a lower degree of maturity, moral sophistication, and capacity for independent judgment than adults. For this reason, the Act presumptively holds adolescents less accountable than adults for their actions. In W. (M.), supra, Justice Epstein J.A. explained:
[97] In my view, the focus must necessarily be on the issue of maturity. The presumption assumes that all young people start from a position of lesser maturity, moral sophistication and capacity for independent judgment than adults. Bala and Anand explain, at p. 4:
Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self-awareness, and they may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why they committed a crime most frequently respond: "I don't know." This seemingly impertinent answer may simply reflect a lack of forethought or self-awareness, or non-responsiveness due to embarrassment and the shame of hindsight, or it may signal a more significant cognitive issue. Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend.
[ 13 ] In order to rebut the presumption of diminished moral blameworthiness, the Crown must satisfy the court that, at the time of the offence, the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to the young person. In determining whether the Crown has succeeded in doing so, the court should examine (a) the seriousness and circumstances of the offence; (b) the age, maturity, character (including sophistication, intelligence and capacity for moral reasoning), background and previous record of the young person; and (c) any other factors the court considers relevant.
[ 14 ] The seriousness of the offence will not, in and of itself, constitute a factor sufficient to rebut the presumption of diminished moral blameworthiness. Indeed, the seriousness of the crime, on its own, has limited probative value on the question of a young person’s maturity, moral sophistication, and capacity for independent judgment. Moreover, it must be remembered that the YCJA presumptively contemplates a youth sentence for the most serious offence known to Canadian criminal law: first degree murder. Rather, insight into the level of maturity, moral sophistication, and capacity for independent judgment is instead gleaned from the planning and implementation of the offence and the young person’s role in carrying out the offence: R. v. W. (M.), supra.
[ 15 ] I turn now to the second branch of the test, accountability.
[ 16 ] Section 38(1) of the YCJA indicates that the purpose of the any youth sentence is to hold the young person accountable for the offence by imposing sanctions that have meaningful consequences for the young person, and that promote his or her rehabilitation and reintegration into society. As noted in W.(M.), supra, “the accountability analysis necessarily involves consideration of proportionality and rehabilitation.” While rehabilitation is a central consideration in determining how to hold a young person accountable, it is ultimately subject to the principle of proportionality. The proportionality principle involves consideration of the seriousness of the offence and the moral culpability of the young person. Inherent in the principle of proportionality is the principle of restraint. The principle of restraint requires consideration of the least restrictive sanction necessary to reflect the seriousness of the offence and the offender’s degree of moral culpability, while also providing the offender the greatest chance of rehabilitation. Section 39(3) of Act directs that, when considering the ability of a sentence to rehabilitate a young person, the court should consider the young person’s attitude toward rehabilitation, the availability of rehabilitative programs, and the young person’s historic response to rehabilitative programs.
[ 17 ] Section 38(2) of the Act codifies the principles of proportionality, restraint, and rehabilitation. Pursuant to that provision, the sentence (i) must not be greater than that imposed on an adult in similar circumstances; (ii) must be similar to sentences imposed on similar young persons in similar circumstances; (iii) must be proportionate to the seriousness of the offence and the degree of responsibility of the young person; (iv) subject to proportionality concerns, must be the least restrictive sentence capable of achieving accountability, the most likely to rehabilitate and reintegrate the young person into society, and promote a sense of responsibility in the young person and acknowledge the harm done to the victims and the community; and (v) subject to proportionality concerns, may serve the objectives of denunciation and specific deterrence.
IV. THE POSITION OF THE CROWN REGARDING THE FIRST BRANCH OF THE S. 72 TEST.
[ 18 ] As noted, the Crown contends that the evidence ought to satisfy me that M.B. demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult.
[ 19 ] In support of this argument, the Crown points to the seriousness and circumstances of the offences.
[ 20 ] In particular, the Crown notes that the shooting was a planned and deliberate crime that involved travel from Toronto to a nearby rendezvous point. The Crown also notes that the shooting involved the participation of at least four co-conspirators, and potentially many more, judging by the number of people gathered at 8 Hickory Street prior to the shooting. The Crown also notes that M.B. took some steps to avoid detection, including the use of gloves and a hoodie. The Crown further notes that M.B. played a central role in the shooting. Indeed, he was one of four shooters.
[ 21 ] As for the May 16th occurrence, the Crown notes that M.B. was committing very serious offences soon after the April 19th occurrence. The Crown also notes that M.B. initially responded to the officer’s inquiries in a calm and collective manner, before fleeing the scene and quickly losing control of his car. The Crown suggests that M.B.’s initial calm demonstrated “restraint and judgment.” The Crown also argues that the act of flight demonstrated an acute awareness of the significance of the crimes being committed. The Crown adds that, in discarding the gun, shedding his clothes, altering his hairstyle, and fleeing the scene in a taxi, M.B. demonstrated an advanced degree of judgment and reasoning.
[ 22 ] With regard to M.B.’s personal circumstances, the Crown notes that M.B. was 17 at the time of the offences and would turn 18 in July of that year. The Crown also relies upon various pieces of evidence that suggest that M.B. was capable of living independently. For example, the Crown notes that M.B. had been missing from the family home for about two months prior to the offences – and that he had disappeared from the family home previously; that M.B. had recently booked a flight to British Columbia using fake identification and had recently travelled to and from Sudbury; and that M.B. is depicted in photographs on his cellphone posing with wads of cash and ostentatious jewelry.
[ 23 ] The Crown also urges me to consider the three prior entries on M.B.’s criminal record. The Crown argues that the severity of his offending behaviour escalated since the first entry in 2017. However, the Crown did not articulate how this history of criminal behaviour sheds light upon the issue of M.B.’s level of maturity, moral sophistication, and capacity for independent judgment at the time he committed the offences for which I must now sentence him. The Crown did note, however, that during previous stints of incarceration, M.B. exhibited maturity when dealing with staff members. The Crown also notes that M.B. has had the benefit of rehabilitative guidance during previous periods of incarceration and previous periods of community supervision. Implicitly, the Crown argues that those prior rehabilitative supports ought to have provided him with an enhanced level of maturation and sophistication.
[ 24 ] While the Crown recognizes that M.B. experienced some difficult circumstances and challenges during his childhood and first years in Canada, the Crown argues that these circumstances ought not detract from the conclusion that M.B. possessed the maturity and moral sophistication of an adult.
V. THE POSITION OF THE DEFENCE REGARDING THE FIRST BRANCH OF THE S. 72 TEST
[ 25 ] The defence contends that the evidence reveals that M.B. lacked the maturity and moral sophistication of an adult at the time he committed the offence.
[ 26 ] The defence contends that the facts of the offences do not permit the inference that M.B. possessed adult maturity and moral sophistication. In particular, the defence points out that the evidence does not establish that M.B. played any part in the planning or organization of the April 19th attack. The defence asks that I remember that a number of co-conspirators were involved and at least one was an adult. Consequently, the defence argues that the evidence only allows me to infer that M.B. was a “foot solder” and not a “field general”. The defence also points out that, despite disclosing some awareness of the cameras inside the condominium at 8 Hickory Street, M.B. disclosed an abject carelessness or negligence in concealing his face. His use of a hood was therefore of no moment. The defence also suggests that M.B. is the last shooter to appear on video, and he appears somewhat tentative in his efforts. The defence also suggests M.B.’s use of gloves provides little insight into his maturity, since all the shooters appeared to wear the same or similar gloves, and at least one of the shooters was an adult. With regard to the May 16th incident, the defence contends that the circumstances reveal immaturity, not maturity. The defence points to the decision to use a cell phone while driving, a mistake which brought police attention upon him at a time he was transporting a loaded firearm and a trunk full of drugs. The defence also points to the decision to leave marijuana in plain view in the front seat. The defence also points to the flight from the scene and the subsequent loss of control of the car. The defence also points to M.B.’s abandonment of his own phone in the car as he fled from the scene. The defence further points to the somewhat farcical image of M.B. emerging from the forest in his shorts and bare feet – after one of his shoes got stuck in the mud – followed by M.B.’s decision to return via taxi to his original starting place. In short, the defence suggests the events of May 16th disclose a level of amateurish conduct, a lack of composure, and impulsiveness.
[ 27 ] With regard to M.B.’s personal circumstances, the defence relies upon the contents of the historical s. 34 report, the current PSR, and the new section 34 reports. The defence contends that the reports reveal a young man who was exposed to at least the aftermath of violent conflict in his country of birth. The defence points out that M.B. came to Canada as a near-13-year-old and spent his first several years in the Jamestown area of Toronto. The defence asks that I take judicial notice of characteristics of that area of Toronto – an area “plagued by poverty, unemployment, community housing, immigrant families, over-worked parents, and high crime rates.” The defence asks me to consider the evidence of M.B.’s low cognitive functioning and his susceptibility to easy influence by peers, particularly the older negative peers with whom he reportedly found safe harbour. Reference to this susceptibility can be found in the section 34 reports and the PSR. The defence asks me to consider that M.B. experienced difficulty adapting to his relocation to a new culture with a new language. The defence also points to bullying M.B. experienced as he struggled to adapt. The defence argues that these contextual circumstances rendered M.B. ripe for recruitment and/or influence by an older negative peer group. The defence points out that when M.B. ran away for the last time, he appears to have left Waterloo Region to return to the orbit of those older negative peers in the Toronto Region. The defence also points to M.B.’s significant progress while in-custody, arguing that the progress helps illuminate just how immature M.B. was before being re-incarcerated. The defence also argues that the circumstances of M.B.’s prior youth record do not support the inference of maturity, but instead support the opposite. In particular, the defence notes that M.B. was accompanied by an adult when arrested for being in possession of a firearm and drugs. The defence further notes that in the sentencing for that occurrence, the Crown and defence both took the position that M.B. was one of the young people being directed by older negative influences in Jamestown. With regard to the violent entry on M.B.’s record, the defence points out that M.B. committed this offence when responding to school bullying. While the defence concedes that M.B. ran away from home for significant stretches, the defence contests the argument that the evidence of M.B.’s independence supports the inference that M.B. possessed adult moral sophistication. The defence argues that the departure from home to be in the sphere of older negative peers constitutes evidence if immaturity, not maturity. In that same vein, the defence notes that the images of the accused’ posturing with wads of money and jewelry suggests a level of immaturity, rather than maturity.
[ 28 ] To sum up, the defence submits that the evidence reveals that between the ages of 13 and 17, M.B. experienced a geographic, cultural, and linguistic upheaval, which resulted in M.B. spending much of those formative years in a poverty stricken and high crime neighbourhood, dealing with bullying, and succumbing to the negative influences of older neighbourhood peers. The defence argues that M.B.’s own personality and cognitive struggles made him an easy target for negative influences. The defence argues that the evidence therefore supports the conclusion that M.B. was a vulnerable youth who lacked the maturity and sophistication to reject the influence of negative peers, and as a result succumbed to their influence and adopted their antisocial moral codes. The defence argues that M.B.’s growth and response to programming and positive influences during his past and current stints in custody further support the conclusion that he was very immature at the time of the offences.
[ 29 ] Consequently, the defence argues that the Crown has failed to rebut the presumption that M.B. possessed the reduced levels of maturity, moral sophistication, and independent judgment of a young person that entitle a young person to presumption of a reduced level of moral culpability.
VI. ANALSYIS AND CONCLUSION REGARDING THE FIRST BRANCH OF THE S. 72 TEST
[ 30 ] Despite the excellent and thorough submissions of the Crown, the evidence does not satisfy me that that M.B. possessed the maturity, moral sophistication, and capacity for independent judgment of an adult.
[ 31 ] In particular, I am not satisfied that the seriousness and circumstances of the offences support the conclusion that M.B. possessed an adult’s maturity, moral sophistication, and capacity for independent judgment.
[ 32 ] I accept that prior to the April 19th shooting event, M.B. had time to consider the wisdom of his participation in the shooting, which was an appalling but momentous event: he and others travelled from Toronto to participate an extremely violent shooting. However, the evidence is incapable of establishing that M.B. took part in planning or organizing the attack; he was only one of several people involved in the attack; and at least one of the others was an adult, whom I am prepared to presume possessed the moral sophistication of one. The Crown bears to onus of proving aggravating facts beyond a reasonable doubt. The degree of M.B.’s involvement in the conception, planning and orchestration of the attack all constitute potential aggravating factors that must be proven by the Crown beyond a reasonable doubt. In this case, the Crown did not lead any evidence capable of establishing the degree, if any, to which M.B. directed, planned, or orchestrated the attack. On the evidence presented to me, I have no basis to conclude that he was anything more than a foot soldier, albeit one who fired his weapon. Furthermore, if M.B. was indeed taking steps to conceal his identity, he was abjectly negligent. I certainly accept that he knew his conduct was wrong – any six-year-old would know that. However, M.B.’s negligence in concealing his face, particularly in light of conduct that suggested an awareness of security cameras at the 8 Hickory apartment building, suggest a lack of forethought or self-awareness. And while he chose to wear gloves, all of the shooters did so. Indeed, they all seemed to wear identical gloves. Therefore, I am unable to conclude that his wearing of a hoody and gloves lend much weight to the contention that M.B. possessed an adult’s level of maturity and sophistication. The seriousness and circumstances of the April 19th event therefore do not offer sufficient assistance in determining M.B.’s level of maturity, moral sophistication, and capacity for independent judgment.
[ 33 ] The May 16th occurrence also offers little assistance to the Crown. Indeed, the circumstances of the offence suggest a lack of foresight and sophistication. His initial compliance with the officer’s inquiries is as consistent with immaturity as it is with maturity. In saying so, I recall that the s. 34 reports suggest that this young man is generally compliant with and respectful towards authority figures. On the evidence before me, I am unable to deduce whether he was initially being cunning, panicking, or simply being compliant with an authority figure. I keep in mind as well that M.B. decided to use his cellphone while driving with a loaded weapon and a trunkful of marijuana. He drew attention to himself. In tennis, this is called an unforced error. To compound the error, he left marijuana in plain view in the front seat, another unforced error. While M.B. demonstrated an ability to drive, he also proved to be a very poor driver who lost control of his car and slammed into a light pole shortly after fleeing from the officer – yet another unforced error. Throughout the morning, he drove around in the car with a parking ticket under the windshield wiper, betraying abject laziness, a lack of foresight, or both. He abandoned the car, whose ownership was never established in the evidence, with the parking ticket still under the windshield. This ticket ultimately led the police to the apartment from whence M.B. departed in the morning and to which he returned after his flight from the police. A fourth unforced error. M.B. also abandoned his cellphone in the car, thus linking himself to a trunk-load of drugs – a fifth unforced error. Although he had the sense to rid himself of the handgun, he left it in a jacket he was wearing, further enabling the police to establish a connection between him and the gun. A sixth unforced error. He also got his feet stuck in the mud and therefore abandoned his shoes. A seventh unforced error. He and his bare feet then caught a cab back to his starting point. Had he considered that local cab companies deploy dash cameras, he might have avoided this eighth unforced error. His shoeless return to his starting point completed his trail of breadcrumbs and thus constituted his ninth unforced error. Rounding up to ten, he committed another unforced error when he initially asked the cabbie to take him to 8 Hickory Street, the staging area of the shooting that had occurred a month earlier. In sum, the offences committed on May 16th were serious, but they were committed by someone with little foresight, sophistication, cunning, composure, or self-awareness.
[ 34 ] Before turning to the circumstances of M.B., I would like to talk further about M.B.’s cell phone, which played a prominent role in proving the case against him. As the Crown points out, analysis of M.B.’s cell phone disclosed a level of independence. He travelled under a false identity to British Columbia. He also travelled to Sudbury. He also insisted during one text exchange that his name not be used in communications. However, he also provided his cell phone number to his probation officer, thus helping confirm the authorship of his text messages. Moreover, he made himself the repeated subject of photos where he, either alone, or in the company of peers, preened and posed in an extremely immature fashion. He posed in the outfit he wore when participating in the shooting. He posed frequently in a manner befitting an aspiring street gangster. Ostentatious displays of cash, jewellery, weapons, and youthful clothing styles are not signs of maturity, but rather immaturity. From the materials I observed, I conclude that M.B. betrayed the misplaced or misguided priorities of a teenager seduced by the illusory glamour of a criminal lifestyle.
[ 35 ] I turn then to the circumstances of M.B. M.B. was born in Somalia on July 24, 2001. Political unrest and war occurred during the years that M.B. lived in Somalia. While I accept that he did not witness the unrest or violence first-hand, I also accept that he saw some of its aftermath, including the bodies of some of those who were killed during the unrest. When he was 12, his father fled to Yemen as a refugee alone. Then M.B., his mother, and some of his siblings followed. Other siblings remained behind in Somalia. After six months in Yemen, M.B., his parents, and some of his siblings came to Canada. They arrived as refugees in Canada in March of 2014, just before M.B. turned 13 years old. So, despite coming from a close, pro-social family with a strong religious faith, M.B.’s childhood was not without its trauma and instability. Indeed, he endured far more than many Canadian children are asked to endure – and far more than any child should be asked to endure.
[ 36 ] The presentence report reveals that his transition into Canadian society was understandably a difficult one, and that he never successfully adapted to his new home. It must be remembered that offences before the court occurred only five years after his arrival here. Upon his arrival in Canada, M.B. knew very little English. At an age when many teenagers simply struggle to cope with the changes brought on by adolescence, M.B. also had to cope with a new country, a new culture, and a new language. His family also struggled financially. These factors alone could make it difficult for many children to thrive in school. M.B., though, also had to cope with his own cognitive and intellectual challenges. The psychological report of Roland Chretien indicates that M.B.’s overall intellectual functioning is in the lower 3rd percentile. In all of the cognitive sub-categories, M.B. was ranked in the “below average” range. Not surprisingly, academic success proved an elusive target for M.B. Too make matters worse, M.B. was bullied in school. In short, M.B. was culturally, linguistically, and academically marginalized during his first years in Canada as a young teenager. While dealing with all of this adversity during these formative years, he was exposed to older highly antisocial and negative peers in his neighbourhood, who offered him the mirage of acceptance. He gravitated towards these negative peers and, in the opinion of Dr. Bryniak, internalized their anti-social values.
[ 37 ] The stabbing incident that resulted in M.B.’s first Youth Record entry was committed in response to bullying at school. He was 16 when sentenced for that offence. According to family members interviewed for the preparation of the PSR, shortly after the stabbing incident, M.B. started spending time with an older, antisocial, and negative peer group. As he did so, his school attendance deteriorated, and his behaviours deteriorated. The PSR notes police suspicion that M.B. became connected with a gang called the Jamestown Crew. M.B. remained silent on the subject of any gang-affiliation but did acknowledge that he was “presented with opportunities to sell drugs in the community through his peers.” Having said that, M.B. was in the company of Levi Alexander on April 19th, an adult male who had prior interactions with members of the Toronto Police Service’s Guns and Gangs Unit.
[ 38 ] M.B.’s 2018 record for weapons and drug offences are admittedly quite serious and represent an escalation in the severity of his conduct. However, as pointed out by defence counsel, M.B. was accompanied by an adult during the commission of the offences. Furthermore, at the time of his sentencing, both the Crown and defence submitted that M.B. was one of the young people being directed by older negative influences in Jamestown.
[ 39 ] M.B.’s parents grew so concerned about is exposure to and involvement with a negative, criminal peer group that they relocated to Kitchener-Waterloo near the end of 2018, by which time M.B. was 17 and nearing his release from custody on the weapons and drug offences. However, M.B. did not sever his ties to Toronto entirely. Instead, he stayed in Toronto during weekdays but stayed with his family in Kitchener-Waterloo on weekends. Soon thereafter, M.B. went missing entirely. A few months later, he was arrested on the matters now before the court.
[ 40 ] The author of the psychiatric report, Dr. Bryniak, held the opinion that, at the time of the offences, M.B. was experiencing “an adolescent onset conduct disorder with significant [his emphasis, not mine] contributing impact of antisocial peers dramatically [again, his emphasis, not mine] shaping this fellows attitudes and behaviours between 2017-2019.” In short, Dr. Bryniak is of the opinion that M.B.’s behaviours and thinking were significantly impacted by the antisocial peers he gravitated towards during a period in his life when he found it difficult to cope in school and in his new community. According to Dr. Bryniak, M.B. “felt accepted by this peer group and began to internalize their values.” Roland Chretien, the author of the psychological report observed that M.B. “remains highly adaptable to his environment” – in other words, easily influenced. Mr. Chretien further observed that M.B.’s testing revealed “a need for social approval and a marked naivety about psychological matters, including self-insight.” Chretien went on to conclude that “adaptability, conformity, and denial” are among M.B.’s most dominant traits. Collateral sources who spoke to the author of a 2017 s. 34 report, also expressed concern about the impact of negative antisocial peers.
[ 41 ] When I consider M.B.’s personal history as outlined in the PSR and the opinions contained in the current s. 34 reports, I come to see M.B. as a person who was exposed to some of the aftermath of war as a child, who left his country of birth as a refugee when he was just becoming a teenager, who was later brought to Canada as a refugee as he was turning 13, and who struggled with a new life, new language and new culture between the ages of 13 and 17. During that time, his family struggled financially, he was bullied in school, he struggled academically, and he was exposed to older antisocial peers in is neighbourhood. He ultimately gravitated towards older antisocial peers with whom he found acceptance. He was a vulnerable teen prone to adopting the perverse value systems this peer group that had provided him an illusory sense of belonging. All of this evidence suggests that M.B. was immature and ill-equipped to deal with negative influences that surrounded him. Indeed, the onset of an adolescent conduct disorder suggests a compromised development, not an enhanced one. Thus, while his proximity to the age of 18 at the time of the offences is an important factor deserving of consideration, its impact is greatly mitigated by a complete understanding of M.B.’s personal history, his struggles adapting to his new life in Canada, the negative influences surrounding him, and his susceptibility to those influences. In my view, M.B.’s personal history and current circumstances rendered him highly vulnerable to antisocial peer influences to which he eventually succumbed. I do not view his vulnerability as a hallmark of maturity and moral sophistication, but rather as a hallmark of immaturity. Nor do I view his succumbing to negative influences as a hallmark of maturity and moral sophistication, but rather as a hallmark of immaturity.
[ 42 ] The defence has asked that I take judicial notice of the ways in which systemic racism negatively impacts black Canadians. The Crown concedes that I can take judicial notice of the existence of both overt and systemic racism within Canada, and that I can take judicial notice that black Canadians are overrepresented in the criminal justice system. The Crown, however, objects to the suggestion that I can take judicial notice of the impact of historical or systemic racism on M.B. himself. The Crown also objects to the suggestion that I can take judicial notice of the prevalence of specific types of gang-related crime in the particular neighbourhoods in which M.B. lived. With great respect to both counsel, I think resort to judicial notice is unnecessary in the circumstances of this case. As outlined above, the PSR and the s. 34 reports contain concrete information from sources, upon which I can rely, that set out numerous personal, historical, and environmental factors that rendered M.B. highly vulnerable to the illusory allure of anti-social criminal activity. These are concrete factors that permit the making of reasonable inferences, inferences which have been drawn by Dr. Bryniak, for example, and inferences which have been drawn by me.
[ 43 ] In asking me to conclude that M.B. possessed an adult’s maturity and moral sophistication, the Crown asks me to consider evidence of M.B.’s independence. For example, the Crown points to his use of fake identification to book a trip to British Columbia. The Crown also relies upon M.B.’s trip to Sudbury. In addition, the Crown places reliance upon M.B.’s extended absences from his family home. Lastly, the Crown points to M.B.’s access to cash and drugs as evidenced in photographs on his phone and by the items discovered on May 16th. While I accept that M.B. demonstrated a degree of self-sufficiency, I do not equate his independence with moral sophistication and a capacity for independent judgment.
[ 44 ] M.B.’s progress while in custody also suggests that he possessed a reduced level of maturity at the time of the commission of the offences. An accurate measurement of the distance one has travelled assists in finding the location of one’s original starting point. Judging by the distanced travelled, M.B. was far from being a mature and morally sophisticated individual at the time of his arrest.
[ 45 ] Schooling was one area in which M.B. showed significant progress. Since being incarcerated in May of 2019, M.B. obtained the 30 credits required to obtain his Ontario Secondary School Diploma. Sixteen of those 30 high school credits were obtained during this last two-year period of incarceration. Between October 2019 and December 2019, M.B. completed two of those high school credits with the T.R.A.D.E.S. program at the Sprucedale Youth Centre, which is a specialized secure custody program for a select group of youth. Through the T.R.A.D.E.S. program, he also received 11 Industry Standard Certificates, obtained hands-on trades experience, and met several trade professionals. The majority of his high school marks over the last two years were in the 70-80% range. His teacher, Don, at Ray of Hope described M.B. as a “fantastic student” who was very engaged in class and very focussed on obtaining his diploma. He was also identified by the teacher as a peer leader and mentor to other students. The educational program at Ray of Hope attempts to help students learn and internalize 8 ethical core values: courage, good judgement, integrity, kindness, perseverance, respect, responsibility, and self-discipline. His teacher, Don, indicated that M.B. was the only student in the history of the program to be recognized as the “character champion” three times. His teacher, Don, further indicated that M.B. embodies the 8 core values, “day in and day out”. In a letter of support, M.B.’s teacher, Don, added, “In summary, I cannot overemphasize my continued respect and admiration for the positive journey that M.B. has gone through since meeting him on the first day of class. His kind heart and perseverance will benefit all those he encounters….” Another teacher, Joel, provided a similar glowing assessment of M.B.’s progress. Joel concluded his letter of support by stating, “In conclusion, it has been an absolute pleasure to be part of M.B.’s learning journey. While his academic achievements are impressive, they pale in comparison to his growth in character.” Now that he has finished high school, M.B.’s has set his sights on higher education. To that end, he has enrolled in an adult education course and plans to pursue a college program.
[ 46 ] In addition to applying himself at school since his arrest, M.B. has enthusiastically engaged in counselling and programming. M.B.’s youth worker referred M.B. to the SNAP Youth Justice, Youth Leadership Services Program in August of 2020. M.B.’s assigned coordinator reported that M.B. was very engaged with programming and receptive during interactions with the coordinator. They have engaged in weekly discussions since August of 2020. M.B.’s coordinator has also interacted regularly with M.B.’s parents. M.B.’s parents are reportedly highly invested in and concerned with M.B.’s continuing progress.
[ 47 ] M.B. also met weekly with his prime worker, Brandon Clark, at Ray of Hope, to receive psycho-educational support on a variety of topics, including anger management, emotional regulation, and developing positive future pathways out of the cycle of crime. Mr. Clark noted that M.B. initially struggled upon admission to Ray of Hope. When he first entered, he had a quick temper. He reacted poorly to adversity and would “black out” and lose control of himself. However, in Mr. Clark’s opinion, M.B. has progressed considerably in the last two years.
[ 48 ] M.B. also attended a six-week group program, called Empower-Men, which is a peer support group focused on learning coping skills and accountability within the residential living unit.
[ 49 ] M.B. also engaged in one on one counselling with a social worker until her departure at the end of April 2021. He has now resumed one on one counselling with a new social worker. As with the meetings with Mr. Clark, these meetings are aimed at addressing M.B.’s areas of developmental need.
[ 50 ] M.B. also engaged in a number of programs offered by Ray of Hope, such as HUB, life skills, chapel, and recreational programming. M.B. and another student also created and co-facilitated a program, under staff supervision, called “180 Turning Point.”
[ 51 ] It is also noteworthy that, although M.B.’s previous probation order ended on June 10, 2020, M.B. remained active with youth probation on a voluntary basis, as part of the Detention Initiative.
[ 52 ] Although M.B. has made considerable progress in the last two years, he has had some setbacks. I note, for example, that the updated PSR indicates that, between October of 2020 and June 1 of 2021, M.B. was involved in three incidents. Nevertheless, the feedback from the secure custody staff indicates that M.B. has made exceptional progress and has grown and matured greatly while in custody. Staff also provided concrete examples where M.B. has demonstrated compassion, kindness, and an ability to de-escalate conflict.
[ 53 ] The recent update of the PSR included content from his most recent Case Management Reintegration Plan report. The report indicated “M.B. has shown great understanding of the Ray of Hope Secure program.” The report indicated that “M.B.’s interactions with staff continue to be exceptional.” The report also indicated that “M.B. continues to grow into a strong positive leader on the unit.”
[ 54 ] In summary, feedback from staff at the Ray of Hope Detention facility indicates that, despite increasingly infrequent setbacks, M.B. has experienced significant academic and personal growth since his arrival there. In other words, he as matured considerably. The degree to which he matured assists with understanding the degree to which he was immature at the time of his arrest.
[ 55 ] Although the Crown recognizes M.B.’s progress, the Crown points to the fact that M.B. made progress during previous stints in custody. The Crown implies that the return to criminal conduct soon after release from a prior custodial stint, suggests and entrenched adult morality and sophistication. I do not interpret the evidence this way. As noted, M.B. has a history of being impressionable and adaptable, and a history of being likely to conform to his environment. With these predominant character traits in mind, it is perhaps not surprising that he thrived during previous custodial stints, or that he subsequently succumbed to negative influences when he came within their orbit again. He responded well to the influence of highly structured environments. He similarly deteriorated when exposed to highly negative and antisocial peers. Given this pattern, I conclude that M.B. had yet to develop the adult maturity and moral sophistication to stay the course.
[ 56 ] I would also observe that Dr. Bryniak indicated in his psychiatric report that “… with the assistance of the past extended period of time in a highly structured youth environment, there does not appear to be significant ongoing core anti-sociality. This is prognostically quite positive.” Dr. Bryniak further observed that “the consistent lack of strong antisocial tendencies, and in fact the emergence of quite prosocial attitudes when in structured environments, does bode quite well, both clinically plus in terms of re-integration potential.” He went on to say that “there appears to be capacity for remorse, and he appears to display a [current] maturity/ability to accept responsibility for his actions.” These opinions lend support to the notion that M.B. had the potential to mature and that he has taken significant steps to realize that potential.
[ 57 ] When I consider the evidence regarding M.B.’s personal history, the opinions contained in the three s. 34 reports before me, and M.B.’s considerable progress since being incarcerated, I conclude that I am not satisfied that Crown has rebutted the presumption of M.B.’s reduced level of moral blameworthiness at the time of the commission of the offences.
[ 58 ] Having failed to meet the first branch of the test in section 72 of the YCJA, the Crown’s application to sentence M.B. as an adult necessarily fails.
[ 59 ] The Crown’s application is therefore dismissed.
VII. CLOSING REMARKS REGARDING THE ABILITY OF A YOUTH SENTENCE TO PROVIDE ACCOUNTABILITY
[ 60 ] While the determination of the application does not require comment upon the Crown’s contention that a youth sentence is not capable of holding M.B. accountable for his conduct, I will make a few brief comments.
[ 61 ] I accept that M.B.’s conduct was extremely serious. I accept as well that numerous people could have died at the hands of M.B. and his cohorts. I further accept that M.B.’s continuation of dangerous criminal behaviour a month after the Subway shooting, coupled with his concerning prior youth record, suggest that M.B. was becoming increasingly entrenched in an antisocial lifestyle. I therefore accept that denunciation and specific deterrence ought to play a significant role in the determination of a proportionate sentence.
[ 62 ] I further acknowledge that the YCJA dictates that the purpose of a youth sentence is to hold a young person accountable for their offence. And I recognize that principle of proportionality, in conjunction with the goals of rehabilitating the offender and reintegrating into the community, must be considered when deciding the sentence necessary to hold the offender sufficiently accountable. I also recognize that I must show restraint and impose the least onerous sentence that is capable of holding an offender accountable.
[ 63 ] I would also observe, that the YCJA presumes that a 10-year sentence is capable of holding accountable a young person who commits first degree murder. The Act also presumes that a 7-year sentence is capable of holding accountable an offender who commits second degree murder.
[ 64 ] Moreover, even if M.B. were sentenced as an adult, the common law requires that his youthfulness be considered when assessing his degree of moral culpability. Even in violent crimes, where denunciation and deterrence remain paramount considerations, the youthfulness of an offender remains a mitigating factor: R. v. Thurairajah, 2008 ONCA 91.
[ 65 ] Denunciation, of course, involves the expression of society’s abhorrence for the offender’s immoral conduct at the time of the commission of the offences. The need for denunciation, however, can be tempered to a certain degree by evidence of the accused’s remorse and evidence of the offender’s post-offence redemption and rehabilitation. In that sense, the principles of proportionality and rehabilitation act somewhat as counterweights in the accountability analysis.
[ 66 ] I accept that the conduct engaged in by M.B. requires a significant custodial sentence in order to satisfy the legitimate principle of denunciation. Even when sentenced as a youth, M.B. remains liable to a maximum of three further years in custody and supervision: see s. 42(15), YCJA. He has served a full two years in pre-sentence incarceration, which is the equivalent of a three-year custody and supervision sentence. As the Crown points out, the court is entitled to consider this pre-sentence custody but not deduct it as time already served when actually imposing the sentence: see R. v. W.(M.), supra, at para 78. As a result, M.B. is susceptible of serving the equivalent of a six-year youth sentence at this stage. Six years constitutes just over one third of M.B.’s life span at the time of the commission of his offences. Six years constitutes just over one quarter of M.B.’s life span at the time of the expiration of the maximum sentence I could impose here today. By either measure, the equivalent of a six-year sentence is a significant sentence when applied to someone of M.B.’s age.
[ 67 ] While the equivalent of six years may not afford sufficient denunciation in every circumstance, an assessment of the requisite expression of denunciation must be informed by the circumstances of the particular offender, including the circumstances that speak to his level of moral culpability at the time of the commission of the offences and including the circumstances that speak to the degree to which the offender has already achieved rehabilitation since the offences. An offender who achieves significant rehabilitation has already succeeded to a certain degree in holding himself accountable and has thus lessened to some extent the degree to which the voice of denunciation must be heard.
[ 68 ] When I consider M.B.’s vulnerabilities during the few short years leading up to and including the time of the offences before me, when I consider the degree to which he has matured and progressed while in custody, when I consider the remorse he expressed to the author of the psychological report, when I consider the amount of time he has thus far spent in custody, and when I consider the unquestionable severity of his offending conduct, I am satisfied that the maximum available youth sentence – on top of the time he has thus far served – is capable of holding M.B. accountable for his offending conduct. It is of sufficient duration to denounce his conduct and to deter him. At the same time, it is of sufficient duration to provide the support necessary for his long-term rehabilitation and re-integration into the community. In saying so, I am satisfied that the youth criminal justice system will be able to provide M.B. with the necessary support and counselling to assist M.B. in continuing his positive progress, regardless of whether he is transferred to an adult correctional facility pursuant to s. 93 of the YCJA.
[ 69 ] Before concluding the sentencing in this matter, I will invite submissions on the finer details of the youth sentence to be imposed. For instance, I will invite submissions on the Youth Worker’s suggestion that I consider making some portion of any custodial sentence an open custody disposition, a sentiment that seems to be echoed by Dr. Bryniak in his report. I will also invite submissions on how to enumerate the sentence for each particular offence and whether any counts should be conditionally stayed.
Released: June 25, 2021 Signed: Justice C.A. PARRY