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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

CITATION: R. v. T.B., 2022 ONCJ 606

DATE: 2022 11 29

COURT FILE No.: London 20-Y1293, 20-Y1405

Sitting as a youth court under the Young Offenders Act, R.S.C. 1985, c Y-1;

BETWEEN:

HIS MAJESTY THE KING

— AND —

T.B., a young person (or “young persons”)

Before Justice M. B. Carnegie

Heard on July 4, 25; August 29; September 13; October 24; and November 14, 2022

Reasons for Judgment released on November 29, 2022

Dalrymple, K........................................................................................ counsel for the Crown

Farquhar, M............................................................................. counsel for the accused T.B.

Reasons for Sentence

CARNEGIE J.:

[1] T.B, a young person as defined by the Youth Criminal Justice Act,[^1] pled guilty to being unlawfully in possession of a prohibited weapon without being the holder of a licence under which he may possess it, contrary to s. 91(2) of the Criminal Code of Canada. In addition, he pled guilty to failing to comply with an undertaking, contrary to s. 145(4)(a) of the Code. The Crown has elected to proceed by indictment.

[2] I am faced with a young person found in possession of a handgun with two magazines containing live ammunition. He has no criminal history and the circumstances that bring him to court are unusual. I must, here, consider whether the gateway is open to a custodial disposition and, if so, to what extent.

[3] While this matter commenced as an apparent contested sentencing hearing, I am now advised that counsel jointly submit that this young person’s pre-sentence custody, totalling 130 days, is a sufficient disposition, on top of a probation order for 18 months, a s. 51(2) weapons prohibition order for 2 years, a DNA order and a forfeiture order respecting the unlawfully possessed firearm, magazines and ammunition.

[4] For the reasons which follow I have determined that a custodial sentence is not available for this young person, in furtherance of s. 39(1) of the YCJA. As such, he will be sentenced to a period of probation with the requested ancillary orders endorsed.

Circumstances of the offence

[5] On April 6, 2020, the Hamilton Police Service were conducting an investigation that led them to London, Ontario. They were acting upon information that a wanted adult was present inside 595 Third Street, unit 52 while in possession of a prohibited firearm, namely a Glock handgun. As a result, the Hamilton Police Service requested the assistance of the London Police Service and its tactical or containment unit. Once they were set up at this location, they announced their presence.

[6] In response, this young person, 13 years old at the time, exited the building with a backpack. Upon apprehension, he uttered to police that he was in possession of a firearm. Police found in his backpack a Glock handgun, one magazine containing 15 live rounds of ammunition and a further magazine containing 22 rounds of ammunition. In addition, 5 other rounds of 40 calibre ammunition were also located.

[7] He was then arrested out front of this unit. He was later released upon an Undertaking, which prohibited him from communicating with other involved parties, including H.M.

[8] On September 10, 2020, this young person was under surveillance by police at 8:15pm while on Marconi Boulevard in London, Ontario. He was observed to be communicating with another Undertaking non-association as well as Mr. M., who had also previously been arrested.

Inference from April 2020 event

[9] While the factual basis provided to me was not detailed, during submissions I queried of both the Crown and counsel whether the circumstances, on their face, were too convenient. Upon T.B.’s arrest, he apparently did not cooperate or name whether other’s were involved. I understand that one of the found in residents at that unit was this young person’s brother. Further, I acknowledge that the Hamilton Police Service were acting upon information that an adult, not a young person, was in possession of a prohibited firearm. Frankly, it all seemed far too convenient to me that this offender, a young person who could face a much different result from criminal charges, was the one individual who exited the surrounded unit, handgun within his backpack.

[10] Neither the Crown nor counsel disputed that these circumstances allowed for a more nuanced appreciation. That, indeed, T.B. could have been sent out with the prohibited weapon in hand to protect another later found inside. Given the constellation of facts before me, as minimal as they are, I am prepared to find that the Hamilton Police Service did not fall upon a coincidental youth prohibited firearm possession scenario. Instead, informed by experience and common sense, I am satisfied that the Hamilton Police Service were, on April 6, 2020, acting upon valid information leading them to this unit. That within the unit was their targeted adult. However, before their investigation could be completed, this young person was sent out with the subject firearm, magazines and ammunition, to cover from another’s malfeasance. That T.B. is still, in essence, covering for this targeted individual speaks not to his independent culpability, but to the suitability of his selection as the patsy enabling the adult target to potentially escape liability.

Circumstances of the offender

[11] T.B. was 13 years of age at the time of this offending conduct. He is now 16 years old. He was raised by his mother until he was removed from the home and put in care at the age of 9 years. His parents never lived together, but he has 5 sisters and 3 brothers ranging in ages from 5 – 20 years. His mother struggled with substance abuse making her home ultimately inappropriate. After residing in a group home for approximately one year, his father’s ex-partner gained custody and guardianship over him and his brother. She has been a significant and ongoing support for him. He no longer has a relationship with his mother or his father.

[12] Since his arrest, he has resided, when not in custody, with his older sister as his brother is residing with their guardian and he is prohibited from communicating or associating with him due to bail conditions. He has multiple family members with criminal backgrounds, including his father and 3 of his siblings.

[13] At an early age, he was diagnosed with Attention Deficit Hyperactive Disorder and Oppositional Defiant Disorder while he was residing in the group home. He began abusing substances, namely marijuana, daily to self-medicate his feelings of anxiety. He has been exposed of trauma from observing violence inflicted upon his biological mother from a variety of her partners.

[14] T.B. has acknowledged associating with an older peer group, none of whom are close friends. He is particularly athletic and strong academically, in particular with respect to mathematics. However, truancy has been a barrier to achievement at secondary school. He is not presently employed.

[15] Upon his arrest in May 2021, T.B. was placed in detention at Sprucedale Youth Centre for a period of time. Reports indicated that his behaviour there was positive. He was compliant, respectful and required minimal staff direction.

[16] His future goals include a dream of professional basketball and an interest in real-estate sales.

[17] Since the commencement of these proceedings, I understand that T.B. has been in pre-sentence custody for a total of 130 days.

Legal Framework and Analysis

[18] Section 3(1)(b) of the YCJA affirms that the administration of justice is distinct between young persons and adults. For young persons, it “must be based on diminished moral blameworthiness or culpability.” Young person who commit or are party to violent offences are not adults and must not be treated as such. As Abella J. stated in R v DB,

…because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability.[^2]

[19] The purpose and principles of sentencing for young persons are outlined in s. 38 of the YCJA. This section sets out a comprehensive approach to sentencing that emphasizes a young person’s rehabilitation and reintegration and guards expressly against disproportionately harsh or unnecessarily restrictive sentences. I must impose a sentence that holds T.B. accountable for his actions through the imposition of just sanctions that have meaningful consequences for him. The ultimate goal is the long-term protection of the public.

[20] The principal issue before me is whether a custodial sentence is available for these offences. I must address whether s. 39 of the YCJA permits the imposition of a custodial sentence under these unique circumstances.[^3] Of the four enumerated “gateways” to custody found in s. 39, the following may apply here:

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

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

(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

2(1) “violent offence” means

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

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

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

[21] So, does an offence under s. 91(2) constitute either a violent offence or an exceptional case such that the imposition of a non-custodial sentence would be contrary to purpose and principles of sentencing under s. 38 of the YCJA?

[22] Also, I must remind myself that, even when a custodial sentence is available, the sentencing objectives found in s. 38 of the YCJA must still be considered and all alternatives of custody be assessed.

Has a violent offence been committed per s. 39(1)(a)?

[23] Previously undefined in the YCJA, in R v CD, Bastarache J. for the Supreme Court defined a “violent offence” for purposes of s. 39 of the YCJA as: “an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm.”[^4] In apparent response to this determination, Parliament passed the Safe Streets and Communities Act, 2012[^5] whose definition of “violent offence” is included above. The specific addition of a young person found “endanger[ing] the life or safety of another person by creating a substantial likelihood of causing bodily harm” was meant to broaden the scope of offences eligible for custodial consideration. It is now enough for a young person to, by their actions, endanger the public.

[24] Of note, in CD, the young person pled guilty to possession of a weapon for a purpose dangerous to the public peace (amongst other offences). On that evidentiary record, the Supreme Court noted that it was unclear whether he threatened or attempted to cause bodily harm while possessing this weapon. That offending conduct, therefore, was not a “violent offence”. Of course, here, it is clear that no such threat to cause bodily harm is present given his immediate apprehension and surrender of the weapon upon his exit from the building.

[25] Given the circumstances of T.B.’s actions, a mere possession or, in essence, a delivery of the firearm and ammunition to police, I cannot conclude that a “violent offence”, as presently defined by Parliament, has been committed. There is no evidence of “bodily harm” (whether physical or psychological) being occasioned by this young person’s brief possession of this firearm. Further, there is no evidence that the public was remotely endangered or that T.B. created a “substantial likelihood of causing bodily harm.”

[26] As a result, I conclude that the s. 39(1)(a) ‘violent offence’ threshold has not been crossed. A mere possession of a firearm offence is, by its nature, non-violent. Hence, a custodial disposition is not available on this gateway theory.

Does this firearm possession case represent an “exceptional case” per s. 39(1)(d)?

[27] The “exceptional cases” requirement represents those non-violent cases where any order, other than custody, would undermine the purposes and principles of sentencing as set out in s. 38 of the YCJA. According to our Court of Appeal in R v REW, an accessary to commit murder case, these situations represent the “clearest of cases” where the offence is so shocking as to “threaten widely shared community values.”[^6] Section 39(1)(d) can only be invoked because of the circumstances of the offence, not the circumstances of the offender.

[28] The circumstances in R v CW[^7] provide an interesting comparison to this case. There, CW was 17 years old when he entered a motor vehicle, the only occupant, before he was surrounded and arrested by police. Police found a loaded semi-automatic handgun and three live rounds in a magazine on the front seat. He has a prior history of theft, drug convictions and breach of recognizance. The Crown characterized this conduct as an ‘exceptional case’ warranting a significant 12 month jail sentence while the defence took the position that this offence was not custody eligible. While the risk of a lethal danger was present given CW’s possession of and intended transportation of this weapon, the court noted that the mere possession of a loaded firearm itself is not enough to make out a case for custody.[^8] However, the objective gravity of this offence coupled with other aggravating circumstances made the case exceptional justifying the imposition of a custodial sentence, namely a deferred custody and supervision order. CW was in possession of a loaded restricted handgun with the potential for lethal danger. Further, he was about to transport it in a motor vehicle for neither innocent nor benign purposes. The court quoted Nordheimer J. from R v JG, [2005] OJ No 4599 (SCJ) at paragraph 36:

The issue of guns in our community, especially the possession of guns by young men, has been at the forefront of concerns regarding issues of public safety in this city over the last number of months. Citizens in Toronto are understandably appalled at what appears to be a proliferation of handguns in the city. The alarm that naturally arises from that perception is dramatically increased by the apparent willingness of certain individuals to use those handguns, very often in indiscriminate and horrifying ways, that have resulted in dreadful consequences for entirely innocent people.[^9]

[29] R v RW[^10] offers another example of a possession of a loaded firearm case resulting in a custodial sentence. That young person pleaded guilty to unlawfully possessing a loaded prohibited firearm, possession while prohibited, carrying a concealed weapon and a breach of recognizance. Citing the gravity of this offence and his long criminal history, he was sentenced to 16 months in custody less the over 7 months he had already served. He was found possessing this loaded handgun in a “ready to fire mode” in a public place. This was planned activity with a live risk to himself and others present.

[30] In R v AA,[^11] the young person pled guilty to possession of a loaded firearm, resisting a peace officer and failure to comply with his bail terms. He was 16 years of age. Police responded to a school complaint respecting a potentially armed student. When approached, AA ran from police and, when apprehended, a loaded handgun fell from his backpack. This young person had the gun because friends of his had recently been killed and he had been shot at. The court determined that bringing a gun to school was dangerous and shocking conduct which, as an exceptional circumstance, necessitated a custodial sentence. He was sentenced to a 6 month deferred custody and supervision order.

[31] Finally, R v JG[^12] presents another instructive example of an exceptional case involving the possession of a firearm. There, JG, 17 years of age, pled guilty of possession of a firearm with ammunition, possession of a firearm with a serial number removed, possession of cocaine for the purpose of trafficking, obstruct police and failure to comply with a recognizance. This “toxic” combination of guns and drugs was considered by this court which found no difficulty concluding that possession of a loaded firearm, when carried into the community under these circumstances, merits an “exceptional case” allowance for a custodial sentence.

[32] It is noteworthy that these cited cases which have met the ‘exceptional case’ threshold have all involved a significantly greater objective gravity and/or other aggravating features that rise to community shock concerns well beyond the circumstances presented before me. Here, I have mere possession of this highly dangerous firearm with ammunition and immediate delivery of same to police. There are no discernable other aggravating offence related factors.

[33] I acknowledge that even the mere possession of a firearm has the potential for causing extreme violence, particularly when possession includes a loaded handgun with other accessible live ammunition. However, context is crucial. Here, I have concluded that it was not coincidental that T.B. exited the building when he did while in possession of the subject firearm and ammunition. It was not coincidental that he turned over the backpack immediately acknowledging its illicit contents. This is because he was sent out with these items to “take the fall”. While that is appalling, in and of itself, and while this young person’s lack of cooperation is concerning, it does not translate into circumstances which would shock the community and/or threaten widely shared community values. As noted in REW, only the clearest of non-violent cases can, and should, meet to the s. 39(1)(d) threshold. This is not one of them. This is not an exceptional case that merits a custodial sentence.

The breach of undertaking offence

[34] Section 39(1)(b) requires the Crown to prove a lack of compliance with multiple prior non-custodial sentences.[^13] As I noted earlier, T.B. has no criminal history. The presence of this offence, without a history of breaches, disqualifies it from non-custodial sentence consideration.

Social context evidence

[35] Defence counsel raises the issue of social context evidence, the presence of anti-Black racism and discrimination, as a relevant feature for my consideration respecting the extent of T.B.’s moral blameworthiness. He relies upon T.B.’s history as outlined in the Pre-Sentence report, which did not directly speak to the impact of systemic racism or discrimination upon his life or his choices, related to or separate from this offending conduct. This may be partly the result of T.B.’s reluctance to reveal the circumstances leading up to his firearm possession, which itself could have provided valuable context respecting his choice, or lack thereof, on this offence date.

[36] There is now a developing line of sentencing authorities that explore the impact of systemic racism and its relation to sentencing. In R v Jackson, Nakatsuru J. observed that “African Canadians have been jailed three times more than their general representation in society for quite some time. The problem is not getting better.”[^14] However, over a decade earlier, our Court of Appeal in R v Hamilton cautioned that:

The fact that an offender is a member of a group that has historically been subject to systemic racial and gender bias does not in and of itself justify any mitigation of sentence. Lower sentences predicated on nothing more than membership in a disadvantaged group further neither the principles of sentencing, nor the goals of equality.[^15]

Despite this caution, the court also noted that sentencing courts are “required to take into account all factors that are germane to the gravity of the offence and the personal culpability of the offender.”[^16] The individualization of sentencing remains a fundamental duty for sentencing judges. In Jackson, the court went so far as to ask, rhetorically, “what is wrong in paying particular attention to the circumstances of the African Canadian offender to achieve a truly proportionate sentence. The answer is self-evident. Nothing.”[^17]

[37] In Ontario, clarity respecting the use of social context evidence was provided by our Court of Appeal in R v Morris.[^18] There, a 23 year old black man without a criminal history was found guilty of possessing a loaded firearm in a public place after trial. More aggravating, he ran from the police and attempted to discard the firearm exacerbating the public risk. The court noted that while social context evidence does not detract from the seriousness of the offence or the need for denunciation, it can provide a basis for adding weight to the objective of rehabilitation and diminish the weight placed upon specific deterrence. However, there must be a connection between the overt and/or systemic racism identified and the circumstances or events that explain or mitigate the criminal conduct in issue. Absent this connection, mitigation of a sentence based simply on the existence of overt or institutional racism becomes an impermissible discount based upon an offender’s race. That said, a court when applying the restraint principle, can consider the over-incarceration of Black offenders in Canadian society and, in appropriate cases, address this concern through the imposition of a conditional sentence.

[38] I have reviewed and considered a number of post-Morris authorities that have relied upon anti-Black racism as a mitigating factor related to an offender’s moral blameworthiness.[^19] By and large, these authorities, informed by enhanced pre-sentence reports that speak directly to the offender’s experience with racism, involve scenarios where gun possession charges are able to be linked, at least to some extent, with the offender’s history and resulting fears within the community. These offenders, it is argued, have diminished options due to the social context which informs, but does not excuse, their possession of dangerous illegal weapons.

[39] Here, I have a paucity of evidence respecting T.B.’s experience with anti-Black racism or how it informed, contextually, his offending conduct. I do not have an Enhanced Pre-Sentence Report, as I understand they have come to be called. I suppose that I am simply asked to infer from what has been disclosed in his Pre-Sentence Report that he has been the victim of anti-Black racism and, by implication, it has somehow informed his offence related conduct in a fashion understood through a number of like cases.

[40] In R v McLarty-Mathieu, Breen J. was asked to consider social context evidence when sentencing an offender on possession of a loaded restricted firearm and other offences. He noted the “catch-22” situation where these “reports [Enhanced Pre-Sentence Reports] are intended to redress historical inequities in sentencing proceedings, but they are not reasonably attainable by Black individuals with low incomes who are statistically far more likely to be incarcerated.”[^20] He went further to comment that in the absence of an enhanced report, “it is incumbent on counsel to provide a sentencing court with any evidence that may attenuate an offender’s moral culpability for an offence.”[^21] There, counsel filed the Morris decision with its attached appendix, the now well reviewed “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario.” While I have not been provided with Morris or this report as part of this proceeding, I have naturally reviewed both.

[41] Of course, it is not hard to imagine that T.B. has experienced racism and discrimination in his life. His troubled youth, inclusive of a broken family, parental substance abuse, a resulting split of his family and his siblings, a disadvantaged subsequent familial upbringing, residency in a group home environment, and anti-social sibling and peer influence all speak to a concerning developmental start in life. Any number of these features, contextually, may be inferred as related to, at least to some extent, his racial status growing up in London, Ontario. In R v Gabriel, Campbell J. was provided with a cultural impact assessment outlining the history of the African Nova Scotian experience over the past 400 years. The court considered what it called the “legacy of racism in Nova Scotia”, a legacy that very well may have parallels in southern Ontario, and commented:

A person’s racial background is also a part of his identity. It does not determine his actions. It does not establish a lower standard for assessing moral culpability. It does not justify or excuse criminal behaviour. It may however help in understanding the broader circumstances that acted upon the person.[^22]

[42] Context matters. I find Campbell J.’s acknowledgment of it a helpful and rational consideration to my sentencing exercise, although its effect is diminished from a strict Morris perspective by the lack of an established nexus to this particular offending conduct.

[43] T.B.’s background and possible, if not likely, experiences with overt or systemic racism do not excuse or lesson the seriousness of this offence. Nevertheless, his life experiences may attenuate his moral culpability if it provides an explanation for his choice to commit this particular offence. Here, while I find the circumstances suspicious, I cannot confidently leap to that finding. To subscribe his offending conduct directly or indirectly to his racialized experience would be to infer well beyond the factual foundation presented by evidentiary record. Of course, that does not take away from my ability to consider, in general, this young person’s disadvantaged background as a young Black Canadian living in London, Ontario, as a proper, though perhaps less compelling, mitigating circumstance.

The aggravating and mitigating factors

[44] Despite the mere possession and delivery to police of this illicit weapon and ammunition, there are noteworthy aggravating features present, including:

(1) the firearm, a handgun, in question is, in law, restricted;

(2) stored with this firearm were two magazines containing 15 and 22 live rounds of ammunition, respectively, with an additional 5 live rounds of 40 calibre ammunition present;

(3) this young person was covering up for another, likely aware that consequences for a youth would be significantly lower than those for an adult found in possession of these items; and

(4) with respect to the breach of undertaking offence, while charges were pending he was observed in communication with a fellow charged co-accused.

[45] With respect to mitigating circumstances, I consider the following:

(1) he has pled guilty to these offences, an expression of remorse, saving the administration of justice the time and resources of prosecuting a trial when those resources are particularly stressed due to pandemic related backlog;

(2) he has no criminal history;

(3) he has served a totality of 130 days of pre-sentence custody, a necessary consideration under paragraph 38(3)(d) of the YCJA;

(4) he has had a turbulent upbringing involving a broken family, split siblings, a biological mother addicted to narcotics, a lack of relationship with his father and placement in a group home by the time he was 9 years of age. This has all taken place in the context of a racialized background that, at the very least, I can infer played some part. Fortunately, his father’s ex-partner has remained supportive in his life and obtained guardian status. He has been staying with his older sister since these charges were laid as his brother is also charged from the same incident. She remains supportive of him and he has been assisting in caring for her young child;

(5) he has some apparent academic ability though has struggled with truancy. He values athletic pursuits and, in particular, is adept at basket ball;

(6) he has ongoing support in the community as his guardian remains supportive and has expressed that he has been more respectful, has been doing better at school since this incident, and is interested in seeking out counseling. She wrote a support letter filed as Exhibit 1; and

(7) he has expressed his remorse through a letter written for the court which I find to be genuine, filed as Exhibit 2.

[46] Section 38(2)(c) of the YCJA requires that I impose a sentence which is “proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence.” The circumstance of this offence merits, while not ‘exceptional’ are nevertheless serious. I cannot ignore the reality and dangerousness of even mere possession of a firearm of this character, with this associated ammunition. However, the circumstances of that possession and its surrender are contextually important and instructive. Overall, I find that a significant order involving community supervision is required to address the circumstances of this offence, with particular emphasis on limiting this young person’s access to those who have, and perhaps will, take advantage of him.

[47] I must also balance proportionality with the principals expressed in s. 38(2)(e), including: that the least restrictive sentence capable of achieving the court’s purpose is necessary; only the most likely sentence to rehabilitate this young person and reintegrate him into society is appropriate; and that a sentence which promotes a sense of responsibility in the young person, and an acknowledgement of the harm done to the community be imposed. These principles re-enforce my conclusion that community supervision, and in particular, a period of probation can best address this young person’s needs. T.B. has experienced significant challenges throughout his young life. Influences upon him, including parental and siblings, have not modeled a pro-social example. However, he continues to have support in the community and has the apparent capacity to succeed at school if he prioritizes it. I am confident that emphasizing his community supports while structuring him away from negative social influences may best serve T.B.’s needs and those of the community at large.

[48] Accordingly, the sentence that would best hold T.B. accountable for his actions given the rather unusual circumstances of this offending conduct is an 18 month period of probation, concurrent on each offence. I will invite submissions respecting the terms and conditions of this probation order.

[49] I fully appreciate that this position undercuts counsel’s joint submission. I have addressed my concerns with counsel and allowed them an opportunity to further contextualize their position. Nevertheless, while I respect the considered positions of experienced counsel, having found no gateway available to a custodial disposition through either ss. 39(1)(a) or (d), I cannot give effect to the joint sentencing recommendation.

[50] By way of ancillary orders, I have been asked to consider a DNA order pursuant to s. 487.051 which I grant on a secondary ground basis given the nature of this offending conduct, concurrent on each count. Further, in addition to a weapons prohibition that will be part of this young person’s probation order, I am satisfied, pursuant to s. 51(2) of the YCJA that a 2 year weapons prohibition can and should be ordered respecting the s. 91(2) offence.

[51] Finally, the Crown seeks a forfeiture order respecting the firearm, magazines and ammunition seized relative to this offence. Upon submission of a draft order, that will be granted as offence related property.

Conclusion

[52] Faced with a joint submission for time served in addition to pre-sentence custody, regrettably I cannot give effect to counsel’s recommendation. That is because I cannot find, given the unusual circumstances of this case, that the custodial threshold outlined in s. 39 of the YCJA can be crossed.

[53] As such, without a gateway offence present, I nevertheless am of the view that substantive community supervision is required by way of a probation order for 18 months. In addition, the above referenced ancillary orders will follow.

Released: November 29, 2022

Signed: Justice M. B. Carnegie

[^1]: SC 2002, C 1 [hereinafter “YCJA”] [^2]: R v DB, 2008 SCC 25, [2008] SCJ No 25 at para 41 [^3]: Section 39(1)(b) and (c) do not apply here given this young person’s lack of criminal history. [^4]: R v CD, 2005 SCC 78, [2005] SCJ No 79 at para 17 [^5]: Bill C-10, Safe Streets and Communities Act, 2012, SC 2012, c 1 [^6]: R v REW, 2006 CanLII 1761 (ON CA), [2006] OJ No 265 (CA) at para 44 [^7]: R v CW, 2007 ONCJ 587, [2007] OJ No 4929 (OCJ) [^8]: Ibid, at para 12 [^9]: Ibid, at para 13 [^10]: R v RW, [2010] OJ No 3555 (OCJ) [^11]: R v AA, [2009] OJ No 5777 (OCJ) [^12]: R v JG, [2011] OJ No 3248 (OCJ) [^13]: R v ST, 2009 BCCA 274 at para 28; R v RJD, 2012 NSSC 286 [^14]: R v Jackson, 2018 ONSC 2527 at para 40 [^15]: R v Hamilton, 2004 CanLII 5549 (ON CA), [2004] OJ No 3252 (CA) at para 133 [^16]: Ibid, at para 134 [^17]: Jackson, supra at para 115 [^18]: R v Morris, 2021 ONCA 680 [^19]: See: R v Lewis, 2022 ONCJ 29; R v Dubois, 2022 ONCJ 88; R v Goodridge, 2022 ONCJ 139; R v Henry-Robinson, 2022 ONCJ 302 [^20]: R v McLarty-Mathieu, 2022 ONCJ 498 at para 21 [^21]: Ibid, at para 22 [^22]: R v Gabriel, 2017 NSSC 90 at para 54