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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Her Majesty the Queen v. P.W.

ONTARIO COURT OF JUSTICE

DATE: 2022 08 16 COURT FILE No.: Toronto 21-Y5027

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

P.W. A young person under the Youth Criminal Justice Act

Before: Justice Peter N. Fraser

Heard on: July 7, 2022 Reasons on Sentence released on: August 16, 2022

Counsel: A. Pasut, counsel for the Crown T. Newby-Parkes, counsel for the accused P.W.

Fraser J.:

Introduction

[1] This is the sentencing of P.W., a young person under the Youth Criminal Justice Act (YCJA) for two sets of firearms-related offences and related breaches of court orders.

[2] A.D. was shot in the head at her home in Toronto on February 12, 2021. She was fourteen years old. She survived the incident, but she was left with significant and lasting injuries. After a trial, I found P.W. guilty of the following criminal offences arising out of that incident:

• Careless use of a firearm [s. 86(1)]
• Criminal negligence causing bodily harm [s. 221]
• Failing to comply with release order (no weapons) [s. 145(5)]
• Failing to comply with release order (house arrest) [s. 145(5)]

[3] Following the verdict, P.W. entered a plea of guilt before me to a previously laid charge, arising out of his possession of a sawed-off shotgun on June 29, 2020. As a result, I found him guilty of one additional offence:

• Possession of a prohibited firearm with ammunition [s.95(1)]

Facts

[4] This sentencing relates to all of the matters detailed above. I will outline the facts in chronological order, as they are interrelated.

[5] On June 29, 2020, police executed a Criminal Code search warrant on an apartment unit in Toronto. P.W., who was sixteen years old at the time, resided at this address with his family. During the search, police officers located a dismantled sawed-off shotgun inside a backpack in his bedroom. The gun was in three parts, which could be combined to form an operative firearm. In addition, there were five rounds of 12-gauge ammunition inside the backpack.

[6] On August 26, 2020, P.W. was arrested and charged in connection with the sawed-off shotgun. By pleading guilty, P.W. has admitted he was in possession of the weapon as he had knowledge and control over it. The defence further admits the gun met the definition of an operable firearm and was a prohibited weapon in law.

[7] Two days after his arrest, P.W. was released on bail. According to the terms of the release order, he was subject to a house arrest and was prohibited from possessing any weapons.

[8] Six months later, on February 12, 2021, A.D. invited some friends over to her apartment in the west end of Toronto. P.W., now seventeen years old, was among them. He attended the residence with a loaded gun and in violation of his house arrest bail. My findings of fact are set out in more detail in the reasons for judgment: see R. v. P.W., 2022 ONCJ 48. What follows is a brief summary of the essential facts.

[9] A.D. had gone to the kitchen to make waffles when the incident occurred. As she left the kitchen, she was shot in the head and collapsed on the living room floor. I found that P.W. was the shooter. I concluded that he was in the kitchen and in possession of the gun when the single shot was fired. The precise circumstances in which the gun went off are not known. A.D. did not see or recall the shooting itself. The other eye-witness, Y.W., was in the next room and did not see the gun being discharged.

[10] I found that P.W. did not intentionally shoot A.D. There was no animus between these two people and no dispute occurred that night. A.D. was heard laughing moments before the gun went off. There was no evidence of an intentional shooting in the trial record. That being said, I would not characterize what happened as a mere accident either. The terrible injury to A.D. was the result of P.W.’s negligence. By bringing a loaded gun to her home, and handling it in a manner that caused it to discharge, he engaged in objectively dangerous conduct that showed wonton or reckless disregard for the lives or safety of others. And A.D. paid the price.

Principles of Sentencing

[11] The sentencing of young persons is governed by the Youth Criminal Justice Act, which creates a completely separate regime of sentencing for people under the age of eighteen. As Abella J. observed in R. v. D.B., 2008 SCC 25 at para. 1: “Young people who commit crimes have historically been treated separately and distinctly from adults. This does not mean that young people are not accountable for the offences they commit. They are decidedly but differently accountable.” As stated by the Supreme Court in R. v. S.J.L., 2009 SCC 14 at paras. 64 & 75:

The creation of this system was based on recognition of the presumption of diminished moral blameworthiness of young persons and on their heightened vulnerability in dealing with the justice system.

…the effect of the objectives of the Act is that the judge is asked to favour rehabilitation, reintegration and the principle of a fair and proportionate accountability that is consistent with the young person's reduced level of maturity. As for the adult criminal justice system, it places greater emphasis on punishment.

[12] The distinction between the adult and youth sentencing regimes is readily apparent in this case from the available range of sanctions. An adult found guilty of criminal negligence causing bodily harm is liable to a maximum sentence of ten years in the penitentiary where the Crown proceeds by indictment. The maximum sentence for possession of a prohibited firearm with ammunition is also 10 years when prosecuted by way of indictment.

[13] Under the YCJA, the maximum combined sentence for these two separate sets of offences is three years. The combined length of the custodial and non-custodial parts of the sentence cannot exceed this limit.

[14] According to s. 3(1) of the YCJA, the youth 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;

[15] According to s. 38(1) of the Act, the purpose of youth sentencing is to “hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.”

[16] Sentencing is, in all cases, a highly individualized process: R. v. Lacasse, 2015 SCC 64 at para. 58. Proportionality remains a touchstone of the sentencing process for young persons. The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person. The sentence must be similar to those imposed in the region on other young persons in similar circumstances. Another critical consideration is the principle of restraint. According to s. 38(2)(d) “all available sanctions other than custody that are reasonable in the circumstances should be considered.” And the sentence which is ultimately imposed must be the least restrictive sentence that is capable of achieving the purposes of sentencing.

[17] The YCJA sets out several other factors which must be considered on sentence. I need not repeat them all here, but I have carefully considered each of them.

Nature of the Offences

[18] Crimes involving firearms represent a real and substantial danger to our society: see R. v. Morris, 2021 ONCA 680; R. v. Nur, 2015 SCC 15; R. v. Marshall, 2015 ONCA 692; R. v. Danvers, [2005] O.J. No. 3532 (C.A.). Prohibited firearms such as handguns and sawed-off shotguns are particularly dangerous given how easily they can be concealed and transported. They are frequently used to intimidate, injure and kill. P.W.’s possession of the sawed-off shotgun on June 29, 2020 was, in itself, a very serious crime.

[19] The subsequent offences of February 12, 2021 went beyond just possession of a firearm and amounted to criminal negligence causing bodily harm. I repeat here a portion of my reasons for judgment:

P.W. brought the firearm to a residential apartment unit full of people. The gun was loaded. A bullet was chambered. The gun either had no functioning safety mechanism or the safety was off. This conduct was objectively dangerous and a reasonable person would have foreseen the obvious and serious risk it posed to the lives or safety of others. In addition, P.W. handled or carried the weapon in such a way as to cause it to discharge directly at A.D. In all the circumstances, this conduct far exceeds the legal standard of a marked and substantial departure from the conduct of a reasonable person in the circumstances.

[20] This second set of offences was committed while P.W. was on bail for the first, and in breach of the terms of his release. These were extremely serious criminal acts. And they lead to disastrous consequences for A.D.

Impact Upon the Victim

[21] A.D. suffered a devastating brain injury on February 12, 2021. A large portion of her skull was removed and later replaced with a bone implant. She now walks with a permanent limp and uses a cane. She has mobility issues with her hand and foot and is required to wear a brace to support her ankle. She has undergone extensive rehabilitative therapy, which continues today. She suffers from post-traumatic stress disorder and experiences anxiety when she is outside her residence.

[22] A.D. has paid an extraordinarily high price for P.W.’s reckless disregard. The impact upon her weighs heavily in the determination of this sentence. However, it bears repeating that our system of youth sentencing is not meant simply to create an equivalency between the sanction given and the harm done. Its principles, as set out above, are more broadly conceived and forward-looking. I am keenly aware that no sentence I impose can balance out, much less undo, the harm A.D. has suffered.

[23] I have also considered the impact of these offences upon the family members of A.D. Her father, B.D., was home when this incident occurred. He heard the gun go off and emerged from his bedroom to find his daughter unconscious and bleeding from a gunshot wound to the head. The trauma of this moment upon him can hardly be overstated. This was, quite simply, every parent’s nightmare. I have read the victim impact statements of A.D.’s other family members. In their own way, each of them has been profoundly impacted by this offence.

Circumstances of the Accused

[24] P.W. was 16 years old when he possessed the sawed-off shotgun. He was 17 when he caused the injury to A.D. He is 18 now. I have the benefit of a pre-sentence report in this case as well as a s. 34 psychological assessment. I have reviewed letters of support filed on the sentencing hearing, as well as P.W.’s own letter to the Court. These materials, together with the submissions of counsel, have provided me a detailed picture of the young man I must sentence.

[25] P.W. identifies as a black male and a Canadian of Ugandan descent. He was born in Uganda and immigrated to Canada with his family at the age of three. He has had the benefit of a supportive family throughout his life. When he was eight, the family moved to the Driftwood area of Toronto, near the intersection of Jane and Finch. During these formative years, P.W. lived in what has been described as a low-income household in a high-crime neighbourhood.

[26] It is clear to me that P.W. has strong academic potential. He has thrived in school in the past. At the end of grade eight, he successfully tested for advanced placement in a Science Technology Engineering Math (STEM) program. In high school, however, his marks began to decline. He began to associate with a negative peer group at this time. The s. 34 report indicates, “[P.W.] likely struggled with at least some trauma-related symptoms prior to the incident of the current charges, secondary to community violence and him being threatened at school.” He has expressed feelings of alienation connected to his minority status in the school. It was during this period of time that P.W. strayed from the promising path he was on and made the extremely poor choices which have lead him to this courtroom.

[27] After his release on bail following the shooting, P.W. appears to have had an awakening. He successfully completed his secondary school courses and earned his diploma in June of 2021. He has worked full time for two separate general contracting companies for the better part of the last year. He has expressed an appreciation for how damaging his decision-making has been. He has taken responsibility for some of the criminal conduct for which he is now being sentenced. This work is not done. P.W.’s comments in the pre-sentence report reveal that he still fails to accept responsibility for causing the injury to A.D.

Aggravating Factors

[28] I take into account the following aggravating factors. First, P.W. caused a life-altering injury to A.D. Second, he caused the injury in her home, the place where she is entitled to the highest level of safety and security. Third, he breached two conditions of his bail when he left his home unescorted and possessed a gun. [^1] Fourth, the firearm used in this incident was not recovered.

Mitigating Factors

[29] I take into account the following mitigating factors. First, P.W. plead guilty to possession of the sawed-off shotgun on June 29, 2020. By doing this he has accepted responsibility, at least with respect to that offence, and he has saved the court the time and expense of conducting a trial. Second, he has no previous findings of guilt and was previously a young person of good character. Third, he has made positive strides in terms of education and employment while on bail.

Availability of a Custodial Sentence

[30] Both counsel submit, and I agree, that a custodial sentence is available in this case. Given that P.W. caused bodily harm, the offences of criminal negligence causing bodily harm and careless use of a firearm qualify as violent offences, under s. 39(1)(a) of the YCJA. In the present circumstances, I accept the submission of counsel that P.W.’s possession of a prohibited firearm with ammunition represents an exceptional case that also requires a custodial sentence, according to s.39(d).

[31] In addition to being available in law, I find that a custodial sentence is entirely appropriate in this case. I have considered and rejected any lesser form of sentence as being contrary to the principles and objectives of the YCJA.

The Joint Submission

[32] The Crown and defence have tendered a joint submission on sentence. They invite me to impose a one-year custody and supervision order and propose that the custodial portion of the sentence be served in open custody. This sentence is to be over and above any credit given for 23 days spent in pre-sentence custody and 17 months spent under restrictive terms of bail. Counsel further propose a period of 18 months probation and certain ancillary orders.

[33] In law, I am bound to accept a joint submission unless it would bring the administration of justice into disrepute or is otherwise contrary to the public interest: R. v. Anthony-Cook, 2016 SCC 43. This is a high test that acknowledges the importance of plea negotiations in the justice system. In this case, P.W. plead guilty to the charge of possessing a prohibited firearm with ammunition. He was found guilty of the others after a trial and cannot be said to have relied on representations from the Crown respecting sentence for those matters. The parties propose concurrent sentences here. As a result, the charge which is governed by the law on joint submissions is not easily disentangled from the others.

[34] I have reflected at great length about whether the joint submission imposes meaningful consequences and properly holds P.W. accountable for his very serious crimes.

Pre-Sentence Custody and Restrictive Bail Conditions

[35] Part of the analysis involves an assessment of P.W.’s pre-sentence custody and conditions of bail. He spent 23 days in secure custody before being released on bail. Both counsel submit, and I agree, that he should receive credit at a rate of 1.5:1, pursuant to the Supreme Court of Canada’s decision in R. v. Summers, 2014 SCC 26. He is, therefore, entitled to have his sentence reduced by 35 days.

[36] Following his initial arrest on August 26, 2020 for possession of the sawed-off shotgun, P.W. spent five months on a house arrest bail. Since he was in breach of that house arrest on February 12, 2021, and was carrying another gun at that time, I decline to infer his compliance with that bail. His counsel correctly declines to seek any credit against sentence for this period of time.

[37] Following his second arrest on February 12, 2021, P.W. was released on another house arrest bail, this time with electronic monitoring. He was permitted to leave his residence with his surety and, as of July 2021, for purposes of employment. He has worn an ankle monitor and his family has borne the cost of the electronic monitoring. There have been no alleged breaches of this bail. And given the monitoring, I am prepared to find that P.W. has complied with the terms.

[38] The Crown and defence jointly submit that P.W. should be given credit for this time spent under restrictive conditions of release. Counsel submit that this credit helps justify the sentence they propose. In my view, the bail conditions did amount to a significant restriction on P.W.’s liberty for the 17 months following his second arrest. I would give him credit for 3 months and reduce his sentence accordingly.

[39] These considerations go some distance to justifying the joint submission proposed by counsel. The custodial sentence is properly viewed as one of 16 months, less 4 months credit for pre-sentence custody and restrictive terms of bail. It is to be followed by 18 months probation. The combined effect of these sanctions is a sentence spanning 34 months. This period is two months short of the maximum duration available in law.

Open or Secure Custody

[40] I must also consider whether the level of custody contemplated by the joint submission is appropriate. Counsel for the Crown and defence jointly submit that the custodial portion of the sentence should be served in open custody, rather than secure custody.

[41] The criteria for determining the level of custody are contained in s. 24.1(4) of the Young Offenders Act, which has been incorporated by reference in Ontario through the operation of s. 88 of the YCJA and Order in Council 498/2004: see R. v. J.S., 81 O.R. (3d) 511 at para. 59. According to the section, a young person should be placed in a level of custody involving the least degree of containment and restraint, in view of certain specified criteria. Those criteria can be distilled to the following essential considerations:

• The seriousness and circumstances of the offence
• The needs and circumstances of the young person
• The safety of other young persons in custody, and
• The interests of society

[42] There is presumption that young persons will be placed in open custody. The Crown bears the onus of satisfying a youth justice court that secure custody is required. In this case, the Crown has not sought to satisfy that burden and joins the defence in seeking a sentence of open custody.

[43] In this case, the serious nature of the offences and the significance of the harm done to A.D. tend to support a sentence of closed custody. It is also concerning to me that P.W. has not taken responsibility for causing that harm. He has admitted to possessing the sawed-off shotgun on June 29, 2020, and to breaching his house arrest bail. He has not acknowledged that he possessed another gun on February 12, 2021 or that he caused the injury to A.D.

[44] That being said, there are several factors which favour open custody. The s. 34 report indicates that P.W. represents a low risk to re-offend. I accept that assessment given P.W. has no prior findings of guilt, was previously of good character, has demonstrated some insight into his offending conduct, and has done well over 17 months under restrictive conditions of bail.

[45] It is also significant that P.W. did not intend to discharge the firearm at A.D. His decision to acquire a second gun while on bail for the first was, quite simply, shocking. His conduct in transporting and handling the weapon was criminally negligent. But this behaviour must be distinguished from scenarios in which harm is intentionally inflicted.

[46] I have also considered that a sentence of open custody could allow P.W. to continue the progress he has made with respect to employment and education. In my view, P.W.’s academic potential is very high. He is capable of pursuing a post-secondary education and of thriving in that environment. If he follows this path, he will better himself, improve his prospects for employment in the future and increase his chances of becoming a contributing member of society.

Other Cases

[47] I have considered a series of youth court cases provided to me by the Crown. Unsurprisingly, none of them align precisely with the unique circumstances of the case before me. None of them involve two separate sets of firearms-related charges. However, the cases do offer some guidance with respect to the appropriate range of sentence for criminal negligence and firearms cases. In R. v. S.D., 2009 ONCJ 50, the accused unintentionally shot his friend in the face while the two were playing with a loaded gun in his possession. The sentence was a 6-month deferred custody and supervision order and 12 months probation. In R. v. B.L., 2008 YKYC 9, the accused was found guilty of criminal negligence after an ill-fated attempt to make a cannon out of a pipe and gun powder. The device exploded injuring three people. The sentence in that case was 12 months probation. In R. v. J.L., 2020 ONCJ 20, the accused plead guilty to one count of criminal negligence causing death and three counts of criminal negligence causing bodily harm in connection with a tragic motor vehicle collision. The sentence was an 18-month custody and supervision order, involving open custody, and 12 months probation. In R. v. M.J., 2007 ONCJ 283, the accused was sentenced to a 12-month custody and supervision order, with open custody, followed by 12 months probation for possession of a loaded restricted firearm in a car. In my view these cases, and others filed by the Crown, do support the length of sentence and the level of custody proposed by counsel in this case.

Conclusion

[48] In light of the foregoing reasons, I am prepared to accept the joint submission. The length of the custody and supervision order proposed by counsel is within the range of sentences imposed for similar cases. It is further justified by the mitigating factors in this case and by the significant credit for pre-sentence custody and restrictive terms of bail. On balance, the interests engaged in this case favour a sentence of open custody. This is a close call, but for the reasons set out above, I am prepared to accept the joint recommendation of the Crown and defence. In my view, the long-term protection of the public will be better served by a sentence that allows P.W. to continue his prosocial activities and thereby favours rehabilitation and re-integration to society.

[49] P.W. will receive 35 days credit for time spent in secure pre-sentence custody. He will receive 3 months credit for time spent subject to restrictive conditions of bail.

[50] In addition, P.W. will be sentenced to a one year custody and supervision order. He will serve eight months in open custody and 4 months under supervision in the community, subject to conditions. I advise him, according to s. 42(4) of the Act, that any breaches of these conditions or the imposition of another sentence may cause him to serve the second period in custody.

[51] In addition, P.W. will be on probation for a period of 18 months. The terms of the probation are as follows:

• Appear before the Court when required to do so by the Court
• Report to the youth worker assigned to the case within 48 hours of release from custody and thereafter as directed
• Reside at an address approved of by the youth worker
• Notify the youth worker of any change of employment, education or training
• Have no contact directly or indirectly, including by any electronic or other means, with A.D. or with any member of her immediate family.
• Do not be within 500 metres of anywhere A.D. lives, works, attends school, or is known to be.
• Do not attend the area bounded by Steeles Avenue to the north, Keele Avenue to the east, Sheppard Avenue to the south and Highway 400 to the west.
• Attend and actively participate in such counselling as may be directed by the youth worker
• Sign any releases necessary to monitor compliance and progress in counselling
• Attend school or vocational training, or make reasonable efforts to obtain and maintain suitable employment
• Possess no weapons as defined by the Criminal Code

Ancillary Orders

[52] There will be a weapons prohibition for five years, pursuant to s. 51 of the YCJA.

[53] The Crown seeks a DNA order for what are secondary designated offences under the Criminal Code. The defence opposes this order in light of P.W.’s young age, low risk of re-offence and the positive strides he has made while on release. In my view the DNA order is appropriate. The offending conduct here was extremely serious and involved the use of two separate firearms. The order is clearly in the best interests of the administration of justice, taking into account the considerations set out in s. 487.051 of the Code.

[54] Pursuant to s. 119(1)(s) of the YCJA, I direct that access to the s. 34 report is granted to anyone involved in implementation of the sentence.

Released: August 16, 2022 Signed: Justice Peter N. Fraser

[^1]: These breaches are reflected in two criminal charges for which P.W. is to be sentenced. Since the parties propose concurrent sentences for these charges, I will treat the breaches as aggravating factors in connection with the principal offences.