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IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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
CITATION: R. v. O.B., 2022 ONCJ 413
DATE: 2022 08 07
COURT FILE No.: Toronto 19-Y-190437
19-Y-190679
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
O.B., a young person (or “young persons”)
Before Justice Maria N. Sirivar
Reasons for Judgment released on September 7, 2022
Jody Milstein.......................................................................... counsel for the Provincial Crown
Anna Martin and Elisa Mastrorillo............................................ counsel for the Federal Crown
Ronald Chu........................................................................ counsel for the young person, O.B.
SIRIVAR J.:
INTRODUCTION
[1] O.B., a young person, was found guilty after trial of failing to stop at a stop sign,[^1] mischief, assault peace officer 2x and possession of proceeds under $5,000.[^2] He was also found guilty of possession of Schedule 1 substance[^3] for the purpose of trafficking 2x.[^4] O.B. was acquitted of the most serious charges related to a loaded firearm and the Crown sought a withdrawal of the remaining charges.
[2] On August 31, 2022, I sentenced O.B., with reasons to follow, to a $60.00 fine and 24 months’ probation with conditions requiring that O.B.:
• not possess weapons for 10 years;
• report to probation;
• reside where approved by probation;
• have no contact with Brandon Cvetkovic;
• seek employment or attend vocational programming;
• attend counselling to address substance use and grief;
• sign releases;
• participate in a victim empathy program;
• forfeit the cash and digital scale seized;
• forfeit the firearm and ammunition seized; and
• provide a DNA sample.
[3] The conditions mirror those proposed by the Crown and recommended in the reports before the Court. The following are the reasons for the sentence imposed.
ISSUES
[4] The issue to be decided is whether the gateway to custody is open by virtue of the operation of subsection 39(1)(d) of the Youth Criminal Justice Act [^5] on the possession and trafficking offences, as submitted by the Federal Crown.[^6]
Materials Before the Court
[5] In addition to the helpful submissions by counsel, I had the benefit of a Psychological Report (the “Section 34 Report”) and a Cognitive and Academic Assessment prepared by Dr. Julia Viniki, Clinical and Forensic Psychologist; Ms. Shelley Langill, Social Worker; and Ms. Katelyn Mullally, Staff Psychometrist, all at the Centre for Addiction and Mental Health.
[6] A Presentence Report was prepared by Hanya Curumthaully, Probation Officer and agent of the Provincial Director with the Ministry of Children and Youth Services.
[7] The production and preparation of the Section 34 Report and the Presentence Report are governed by sections 34 and 40 of the YCJA, respectively. Although, pursuant to subsections 40(6) and 34(4) of the YCJA, cross-examination of the authors of the reports is permissible, it was not requested.
[8] The Defence filed a copy of O.B.’s high school diploma, transcripts and a letter from Peel Alternative School. The Crown filed a Toronto Paramedics Services Report.
POSITIONS OF THE PARTIES
The Crown’s Position
[9] The Crown argues that the custody threshold set out in subsection 39(1)(d) of the YCJA is open because of the aggravating facts of this case and the exceptional nature of the offences. Counsel submits that a custodial sentence, noting up to six (6) months of the presentence custody or making a deferred custody order, combined with an eighteen (18) month probation term, with conditions[^7], is appropriate. In the Crown’s view, the imposition of a non-custodial sentence would be inconsistent with the purpose and principles of the YCJA, as set out in section 38.
[10] The aggravating facts that make the offences exceptional are that O.B.:[^8]
a. was trafficking a fentanyl mixture which has a devastating impact on the community by contributing to the opioid overdose epidemic;
b. was in possession of controlled substances with a value of at least $5,000;
c. revealed in the Section 34 Report that he has been trafficking since he was twelve (12) years old beginning with cannabis and progressing to crack cocaine at the age of sixteen (16) or seventeen (17);
d. exploited Mr. Cvetkovic;
e. was on bail (possession for the purpose of trafficking) when he committed these offences;
f. weaponized the substances by throwing them at the police officers;
g. lacks remorse; and
h. lacks empathy.
[11] The Crown argues that O.B. weaponized one of the substances when he threw cocaine in the officers’ faces. He was also obstructing the police while he was in their custody by trying to destroy the evidence when he disbursed the substances in the vehicle and on the road.
[12] O.B.’s conduct and his comments during the assessments reveal that he does not have remorse for trafficking or for throwing the substances at the officers. The Section 34 Report describes O.B.’s view that he was “a good dealer” and was helping people who were sick. He appeared to pride himself on not having cheated people who bought from him. O.B. expressed that he believed the offences are not serious, as he did not kill anyone. He believed there were no victims in the situation.
[13] O.B. expressed remorse for what happened that day, not because of the impact on others or the severity of the offences, but because of the impact on himself. He does not want to be on probation, and he does not want others to view him negatively. When asked about the impact of his actions on the police officers, he said they ran into the drugs after he threw them. The Crown submits that the lack of empathy and remorse is linked to the risk as it demonstrates a total lack of insight into his behaviour and its impact on others.
[14] The Crown acknowledges, however, that O.B. has rehabilitative potential and noted the positive progress that has already taken placed with respect to his education, doing well at home and identifying very achievable career goals. The Crown submits that this is evidence that, with proper structure and supports, O.B. can accomplish a great deal.
O.B.’s Position
[15] The Defence takes the position that the gateway to custody is not open in this case. He submits that a period of probation is appropriate, as it will promote O.B.’s continued rehabilitation and his positive trajectory.
[16] In support of this position, the Defence relies on the fact that this is O.B.’s first finding of guilt and that he was a particularly vulnerable young person, having faced significant challenges throughout his life. He urges the Court to take into consideration, as mitigating circumstances that lower O.B.’s level of culpability, the following facts:
a. his early years were characterized by trauma including witnessing violence, being physically disciplined by his father and his mother having to flee Syria because of domestic violence;
b. he has lived in poverty and experienced housing insecurity;
c. he witnessed violence in his community;
d. he was a victim of violence, having sustained serious injuries as result of being stabbed shortly before the date of the offences;
e. he experienced significant loss as a result of the deportation of his stepfather and the sudden death of his father;
f. he struggles with his mental health including Post Traumatic Stress Disorder (“PTSD”), Depression, and an anxiety disorder with panic attacks;
g. he suffers from Attention Deficit Hyperactivity Disorder (“ADHD”) and a Learning Disability; and
h. he continued to experience trauma during his placement in the adult detention facility.
[17] The Defence argues that O.B. was exposed to many negative older peer influences to which he was especially susceptible because of his mental health challenges. Additionally, he needed money because his family struggled financially. He is not, however, a high-level drug trafficker, who sold drugs to live rich and lavish lifestyle.
[18] The Defence argues that O.B. has matured and plans to disassociate with negative peers, abstain from using substances, and focus on his future including going to college, working, and spending time with family.
[19] Many of the risk factors identified have already been ameliorated or addressed. Specifically, O.B. has:
a. volunteered in the community;
b. participated in youth programs;
c. completed seventy (70) hours of pre-employment training;
d. completed his high school diploma while in custody and was described by the Principal at the Roy McMurtry Youth Centre as highly motivated, respectful, hardworking, and dedicated to his studies. Similarly, the staff described him as mature, articulate, and self-aware; and
e. enrolled in a Sociology course at Sheridan College.
[20] The Defence submits that the breach of O.B.’s rights to counsel for which I did not grant a remedy of exclusion, or a stay can be considered at the sentencing stage. O.B. is entitled to a sentence reduction such that if the Court is of the view that a custodial sentence is an option, it should not be imposed.
RELEVANT LAW AND LEGAL PRINCIPLES
[21] Section 39 of the YCJA enumerates limited circumstances under which a custodial sentence is appropriate for young people. The Crown relies on subsection 39(1)(d) which reads as follows:
39 (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless
(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38. [Emphasis added]
[22] The Court must assess the offence itself, including its extraordinary and aggravating features. If there is sufficient gravity to justify a custodial sentence, it must be established that custody in this case is appropriate, given all the circumstances relating to the offence and the offender, in light of the purposes and principles of youth sentencing.[^9] Youth sentencing principles are set out in subsection 3(1) of the YCJA which reads, in part, as follows:
3 (1) The following principles apply in this Act:
(a) the youth criminal justice system is intended to protect the public by
(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,
(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and
(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;
(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:
(i) rehabilitation and reintegration,
(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,
(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,
(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and
(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time. [Emphasis added]
[23] Sentencing in this context involves an individualized sentence designed to ensure that the young person before the Court is held accountable through meaningful sanctions, and to promote his or her rehabilitation and reintegration into society, for the long-term protection of the public.[^10]
[24] The Supreme Court of Canada in R. v. Nasogaluak [^11] made clear that sentencing principles must be understood and applied within the overarching framework of the Constitution. As such, it is permissible for a court to address a Charter breach when passing sentence. If the facts alleged to constitute a Charter breach are related to the principles of sentencing, then the sentencing judge can properly take those facts into account in arriving at a fit sentence.
ANALYSIS AND CONCLUSIONS
[25] I find that the facts of this case, including the circumstances of the offences, establish objective gravity. In so concluding, I have relied on:
a. the nature of the substance being trafficked (fentanyl mixture) and its role in the opioid overdose epidemic;
b. the nature of O.B.’s trafficking which is suggestive of entrenchment in the lifestyle: having started at age twelve (12); being on probation for possession at the time of the offences; using substances himself; and being in possession of significant quantities of the fentanyl mixture and cocaine;
c. O.B.’s conduct during the detention and arrest, including weaponizing the substance by throwing it on the officers and attempting to disburse it in the vehicle and on the road;
d. O.B.’s the lack of remorse for throwing cocaine on the officers and for trafficking;
e. O.B.’s lack of empathy for the victims; and
f. O.B.’s lack of insight into the impact of his action.
[26] The circumstances of the young person include:
a. having experienced significant trauma throughout his life;
b. experiencing poverty and housing insecurity;
c. having significant mental health diagnosis including PTSD, Depression, and an anxiety disorder with panic attacks;
d. suffering from ADHD and a Learning Disability; and
e. O.B. being in the low-risk range of reoffending and being open to services (as described in the Section 34 Report).
[27] Although the facts establish that this is an exceptional case, it would not, however, be inconsistent with the purpose and principles of youth sentencing to impose a non-custodial sentence.
[28] The principles of sentencing, in subsection (3)(1)(b)(iii) of the YCJA, include emphasizing the enhanced procedural protection to ensure that young people are treated fairly and that their rights are protected. In this case, I found that O.B.’s Charter rights were violated. He was not read the youth rights to counsel despite officers having his driver’s license, which included his date of birth. This occurred in the context of an arrest, detention, and roadside strip search while O.B. repeatedly asked to call his mother.
[29] I find that the Charter breach is a component of the circumstances of the offence and operates as a mitigating factor. It is also related to the principles of sentencing. As such, it must be considered when arriving at a just sentence.
[30] To effectively hold O.B. accountable and encourage his ability to take responsibility for his actions requires that there be accountability for the breach of his Charter rights. Leaving him without a remedy could be viewed as rendering Charter rights and the enhanced protection for young people in the YCJA meaningless.
[31] Based on the forgoing, I find that a lengthy period of probation with conditions such as attending counselling to address risk factors and a 10-year weapons prohibition, will not interrupt O.B.’s positive trajectory while achieving the objective of long-term protection of the public.
Released: September 7, 2022
Signed: Justice Maria N. Sirivar
Remitted
[^1]: Highway Traffic Act R.S.O. 1990, c.H.8 [HTA]
[^2]: Criminal Code R.S.C., 1985, c. C-46, s. 430(4), s. 354(1) and s. 270(1)(a)
[^3]: Cocaine and a mixture of cocaine, fentanyl, and heroine
[^4]: S.C. 1996, c. 19, s. 5(2)
[^5]: S.C. 2002, c. 1 [the “YCJA”]
[^6]: The Defence agrees with the submissions of the Provincial Crown with respect to an 18 month probation term and all conditions. The only disagreement was that he sought a weapons prohibition for only 2 years (maximum for those offences).
[^7]: The conditions sought were the same as those sought by the Provincial Crown including the 10 years weapons prohibition which is available for these offences.
[^8]: The Provincial Crown also made submissions regarding aggravating factors even though a custodial sentence was not sought.
[^9]: R. v. W. (R.E.) 2006 CanLII 1761 (ON CA), [2006] O.J. No. 265; R. v. L.P [2004] O.J. No. 1484 at para 22
[^10]: R. v. N.S.O. [2003] O.J. No. 225 at para 9; R. v. P.T.B. [2006] O.J. No. 2327 at para 10
[^11]: [2010] 1 SCR at para 47