Warning

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2022·09·07

NEWMARKET

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

R.R.

YOUTH COURT SENTENCING

Submissions Heard: September 7, 2022.

Delivered: September 7, 2022.

Counsel:

Mr. Michael Ventola ................................................................................ counsel for the Crown Mr. Gavin Holder................................................................ counsel for the Young Person R.R.

KENKEL J.

Introduction

[1] On March 2nd, 2022, the Crown proceeded by Indictment and Mr. RR pleaded guilty to Aggravated Assault s 268(1) and Robbery while using a Firearm contrary to s 344 (1)(a). He admitted the agreed facts now marked as Exhibit 1 and he was found guilty on both counts.

[2] The Crown submits that RR should be sentenced to the maximum term of 3 years in addition to the pre-trial custody of 441 days. The defence submits that with enhanced credit for time served during the pandemic, RR should be at or near release.

The Offences

[3] On March 22, 2021 Mr. RR and his associates approached a vehicle and brandished a firearm at the driver Mr. Martinez-Sheppard. They took his car but they decided to kidnap him as well, confining him in the backseat of the vehicle with handcuffs. They shot the victim several times in the leg.

[4] Shortly after the shooting they abandoned that vehicle but did not make any attempt to help him or call for assistance. Instead, they went to a nearby gas station. Video surveillance at the gas station showed RR pointing a gun directly at the face of another person during a second carjacking. At the time Mr. RR was on probation and was subject to a firearms prohibition order.

[5] While Mr. RR is the one who brandished the gun in the second robbery, he denied shooting Mr. Martinez-Sheppard. The Crown concedes they are not in a position to prove who shot the victim beyond a reasonable doubt.

Aggravating Factors

[6] The aggravating factors include:

• The circumstances of the offences
• The fact that there were two carjacking robberies
• The fact that one victim was shot after being abducted and forcibly confined
• The effect of the offences on the victims and the community
• Mr. RR’s past youth court record
• Mr. RR was on probation at the time
• Mr. RR was on a firearms prohibition at the time

[7] Mr. RR's prior youth record involves convictions for two incidents. The first involved Possession of a Prohibited or Restricted Firearm with Ammunition and Assault with a Weapon. RR's probation officer described that incident in the s 34 report as the "accidental release" of a bullet by RR during an altercation. That person was shot by RR in 2019. While on bail for those serious charges Mr. RR was found in a hotel room in breach of his bail and in possession of another gun. That second incident resulted in further convictions for Fail to Comply with Bail and Possession of a Prohibited or Restricted Firearm with Ammunition. RR was on probation for those offences when he was involved in the two robberies and the shooting of Mr. Martinez-Sheppard. The firearm used by RR during the robberies was not recovered.

[8] Mr. Sheppard-Martinez suffered two gunshot wounds to his upper leg and a bullet graze to his lower right calf. He also had marks on his wrists from the handcuffs. Thanks to the assistance of a passer-by, an ambulance was called and he was treated at Southlake Hospital.

Mitigating Factors

[9] The mitigating factors:

• The plea of guilty
• Pre-trial custody served of 441 days
• Detention during the COVID pandemic
• The educational courses and counselling RR took during his detention
• The fact that RR continues to enjoy strong family support
• RR’s expression of remorse and willingness to change

[10] The defence submits that Mr. RR's s 34 report shows that he has a very supportive family. He's had the benefit of a stable home environment. Both parents are educated and employed. His two older siblings have done well. The report characterized RR's risk of re-offending as on the low end of the moderate range. There is simply no reason for him to return to involvement with gangs and guns and RR says that he wants to change.

Pre-Trial Custody

[11] Mr. RR has been in custody since June 24, 2021. That’s 441 days or 1 year, 2 months and 15 days. Mr. Holder advises that RR spent 10 months in secure custody at the Roy McMurtry Youth Centre (RMYC) and four and a half months in open custody at the Lutherwood facility.

[12] The Crown submits that given the gravity of the offences and the many aggravating factors, that no credit should be given for the pre-trial custody. The imposition of the maximum youth sentence in addition to time served would be fit in a case where an adult sentence would have been sought but for the young person’s guilty plea.

[13] The defence submits that the young person should receive enhanced credit for pre-trial custody given that it was served during the COVID pandemic and the progress that RR has made despite those restrictions.

[14] The Crown position now submitted by Mr. Ventola was taken by another Crown at a much earlier stage in the proceedings when RR had substantially less time served in custody. Despite the gravity of the offences, it would not be appropriate in this case to fail to give credit for pre-trial custody. Section 38(3)(d) of the Youth Criminal Justice Act, SC 2002, c 1 (YCJA) states that a youth justice court shall take into account any time spent in detention by the young person as a result of the offence. I find to do so would not result in a sentence contrary to the purposes of the YCJA.

[15] Young persons may receive less credit for pre-trial detention than adults because some of the reasons given for adult enhanced credit don’t apply in the youth context. [1] For example, adults in custody typically do not have access to the educational and counselling programs that RR has taken advantage of, nor do they have the opportunity to serve their detention in an open custody or group home facility.

[16] A starting point of 1.5/1 credit may apply to youth pre-sentence detention in a secure facility [2], but limits to credit that arise from s 719 of the Criminal Code were not adopted in s 50 of the YCJA and do not apply to youth sentences.

[17] In determining the credit to be given for pre-trial detention in this case, the relevant factors include:

• The overall length of the detention
• The fact that 10 of those months were spent in secure custody
• The restrictions within all custodial facilities as a result of the COVID pandemic including loss of programs for RR during some periods
• The fact that RR was sick with COVID twice during his detention
• The education and counselling programs that RR did receive during his detention in both facilities as set out in the s 34 report and his allocution statement
• The circumstances of the offences and RR’s personal circumstances which required his incarceration to protect the public

[18] Considering all of the circumstances, I find that credit for time served reduces the custodial term that is required to be imposed but the enhanced credit is not the equivalent of time served for the purposes of s 42(15) of the YCJA.

Sentence

[19] I agree with the Crown that the offences fall at the most serious end of the range for Aggravated Assault and Armed Robbery with a handgun in the youth context. The abduction, confinement and shooting of the first driver by RR’s group showed a complete indifference to the lives of others. When they abandoned the first car after the shooting, RR and his associates did nothing to help the injured driver and nothing to summon help. Instead, they chose to commit another robbery where RR pointed his gun directly into the face of another driver to steal his car. At the time RR was prohibited from possessing firearms as a result of two prior firearms incidents including a prior shooting and he was on probation.

[20] The most important principle of sentence in this case is specific deterrence. Mr. RR’s repeated involvement with guns and violence despite the intervention of the criminal justice system combined with his disregard for the lives and safety of other persons shows that he poses a high risk to public safety. He must be deterred by meaningful consequences that both protect the public and contribute to his rehabilitation. He must also be held accountable for his actions and for the harm that he has caused others, but again in a context where rehabilitation and reintegration remain the ultimate goal.

[21] RR’s family certainly continue to support him, but the evidence shows that they’ve had little influence over him for the past 5 years. Even being stabbed in grade 9 did not dissuade him from becoming further involved with guns and a gang lifestyle. This is the third incident in which he’s used a loaded firearm and in two of the incidents people have been shot. The s 34 report conclusion that he is at the low end of the moderate range to reoffend based largely on his self-reports seems overly optimistic. He’s twice returned immediately to gun violence despite being subject to court orders and I find the whole of the evidence shows there remains a significant risk he will do so again. The family’s plan to have him move to another area to live with his sister is generous on her part, but fails to recognize that even his parents have had no control or influence over him for many years. It’s plain that he needs the support of counselling and supervision by professionals as recommended in the s 34 report.

[22] I agree with the Crown that a 3-year sentence is warranted on both offences. After taking into account the pre-trial custody, the circumstances of that custody and all of the other factors discussed above, I find that a further custodial sentence of 6 months is required. The evidence shows there is little chance that Mr. RR would comply with a non-custodial sentence if he were simply to be released today. Mr. RR will be subject to a Custody and Supervision Order of 6 months of which 4 months will be served in custody and 2 months will be served under community supervision.

[23] In the s 34 report Mr. RR told the writer at p 17 that he didn’t feel he needed any further counselling services. The report came to the opposite conclusion, identifying six areas in which RR needs further help and five treatment needs that require further counselling. The report identified five specific programs that would be available to RR near his home. Mr. RR has done well in a structured detention setting. If he really does wish to continue his progress upon release into the community as he said, it’s plain that a period of probation giving effect to the counselling recommendations in the s 34 report is essential to the goals of rehabilitation and reintegration. It is also essential for the protection of the public.

[24] The Custody and Supervision order will be followed by a period of probation of 15 months. In addition to the s 55(1) YCJA mandatory term, Mr. RR will be bound by the following terms:

• Report to and be supervised by the provincial director or their designate;
• Notify the clerk of the youth justice court, the provincial director or the youth worker assigned to the case of any change of address or any change in the young person’s place of employment, education or training;
• Reside at an address approved by your supervisor
• Remain within the Province of Ontario unless with the written permission of your supervisor
• Take and complete all counselling programs as directed by your supervisor
• Sign any releases necessary to enable your supervisor to monitor your counselling progress
• Not possess or have the control of any weapon as defined by the Criminal Code
• Not possess or have the control of any firearm, ammunition, prohibited ammunition, prohibited device or explosive substance
• Make reasonable efforts to obtain and maintain suitable employment

[25] Under s 51(1) of the YCJA, RR will be prohibited from possessing any firearm, ammunition or related items set out in that section for the 5-year term requested by the Crown.

[26] There will be a DNA order for the primary designated offences.

Delivered: September 7, 2022.

Justice Joseph F. Kenkel

[1] See: R. v. T.B., 2006 ONCA 4487, [2006] OJ No 584 (CA) at paras 36-40.

[2] R. v. T.B. at para 42