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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: 2024 09 16 Court File No.: Toronto 998 22 Y8210910

Between:

HIS MAJESTY THE KING

— AND —

M. J. , a young person

Before: Justice David S. Rose

Heard on: June 17, August 23, 28, 2024 Reasons for Judgment released on: September 16, 2024

Counsel: Ms. Humphrey, Ms. De Filippis....................................................... counsel for the Crown Mr. Adler, Mr. Gray.............................................................. counsel for the accused M. J.

Justice David Rose:

[1] Kenneth Lee was set upon by several youths just after midnight on December 18, 2022. In that swarming he was mortally stabbed in the heart. The altercation happened at one of the busiest corners of downtown Toronto, and the crime shocked the city. After a preliminary hearing M.J. pleaded guilty to manslaughter. She is now 15 years old. These are the reasons for sentence.

[2] Eight teenagers were charged from the swarming. After the preliminary hearing four elected to plead guilty before me. The remaining four were committed to trial. Because of the ongoing litigation from this altercation both before me, and in the Superior Court, I would only identify M.J. in this recital of facts.

[3] There is a commonality to the facts, and applicable law, but the situation of each young person is unique.

Facts

[4] The attack on Kenneth Lee was the result of about 3 hours of escalating group conflict by the teenagers throughout the subway system.

[5] Ms. J. met up with several other girls at Yorkdale subway station around 9pm on December 17, 2022. Ms. J. knew one of them well but the rest less so. The girls in that group were young. M., her friend, and another girl were 13, two were 14, and there were two 16 year olds. They would be joined by another 14 year old girl, and boarded a southbound train around 9:33, but not before one of the group ran around the platform with two knives. At that point they were with a 14 year old boy. He travelled with them that night but took no part in the swarming of Kenneth Lee.

[6] M.J. had been drinking, and was intoxicated by alcohol and marijuana throughout the evening.

[7] The eight girls took the subway south to St. George Station where they got off and continued to act out as a group. They chased two young men on the train who appeared to be strangers. One of them was kicked. M.J. brandished a pair of vice grip pliers which she tapped the subway train with. One of the group spat on an elderly man in the station. At 10pm the group were ordered out of the subway station by TTC Constables as a result of multiple complaints of disruptive behaviour. They lingered outside the station for about 30 minutes before re-entering the station without paying. A young man Augustin Marchetta happened to be there, and he was hit and kicked by some in the group but not by M. Racial epithets were hurled at Mr. Marchetta by someone in the group, but not by M.J.

[8] The group boarded another southbound train at St. George Station. Some in the group – other than M.J. – caused a disturbance which delayed its departure. On the ride, two in the group accosted two adult women who were on the same car. A TTC security video shows two in the group, again other than M.J., run through the car and hit one of the adults in the back of the head. When the women took exception to this the two girls returned to confront them, crowding around them. One of the other girls pulled one of the women’s hair. M.J. sprayed water on them. The emergency button was pushed, and another TTC security video shows the adults and the eight teenagers menacing them on the St. Andrews station subway platform. The incident de-escalated when some in the group of teenagers directed the others away from the women.

[9] The group went up to the street entrance to St. Andrews station, where there was another altercation between the group of teenage girls and others passing through the station. This time they assaulted two women by hitting them and spitting at them. M.J. was part of that.

[10] After leaving St. Andrews station the group of teenagers went into Union station which is the next station south of St. Andrews. Some of the girls stole items from a convenience store in the station before being escorted out by security. They re-entered Union station only to encounter security which caused them to again run out of the area.

[11] The group would end up going to Jack Astor’s which was to the west of Union station on the west side of University Avenue at Front Street. They stayed only a matter of minutes in that restaurant before running East across University Avenue into the parkette which occupies the sliver between York Street to the east, University Avenue to the west and Front Street to the south. That parkette has two entrances to the underground walkway system at ground level. Both are glass enclosures. One has a set of stairs down, the other has an elevator down.

[12] The parkette has a concrete retaining wall to the north of the glass enclosures a few feet high which has seating facing south. On the north side of that wall is a garden containing plants and soil. The east-west wall has another pedestrian area on the north of it on its eastern tip. It is in a semi-circular shape with pedestrian space enclosed by the garden on one side. That pedestrian area is where the bulk of the swarming took place.

Kenneth Lee and Erika Tong

[13] Video taken of the area from above looking down to the south shows Kenneth Lee and his partner Erika Tong arrive in that semi-circular pedestrian space around 11:59 on December 17. Erika Tong lived in the Strathcona hotel to the immediate north of the parkette. Kenneth Lee himself lived in a different shelter. The video of the swarming was a crucial piece of evidence. It portrays what happened and who did what. At the preliminary hearing before me there was no viva voce evidence from anyone who saw the swarming. Melissa Alexander, a staff member from the Strathcona shelter, came upon the scene at the end in the final seconds of the swarming, during its final and fatal wave. She described the attack as “…wolves on top of a piece of meat”.

[14] The attack on Kenneth Lee took only 3 minutes and about 40 seconds. It unfolded in waves. At the beginning M.J. chased Mr. Lee and hit him with her hands. One of the girls threw a white bag towards Ms. Tong. Others in the group punched Kenneth Lee while some, including M.J. chased him toward the wall holding concrete retaining wall. M.J. is among the group hitting and grabbing him. She is in the group that rushes toward him pinning him against the retaining wall and she then jumps onto the planter behind him and kicks him from above near his head.

[15] In the second wave Kenneth Lee was filmed and shown on video evidence from above to be quite bloodied about the face. M.J. runs up behind Kenneth Lee and punches him in the back of the head while others in the group hit him with a white bag, jump him and kick him. At one point M.J. is among a group of girls that spit on him.

[16] In the third wave the group continue to swarm Kenneth Lee, hitting him with things, punching him in the head repeatedly until the swarming is broken up by pedestrians. In the third wave M.J. is seen hitting Kenneth Lee in the face with her bag, punching him in the upper body while the melee is closer to York Street. As it moves into the enclosed pedestrian area M.J. pursues him with other girls. When Kenneth Lee has his back to the planter retaining wall, M.J. jumps up onto the planter. She has a pair of vice grips in her right hand and pummels Kenneth Lee in the upper body area. It is unclear from the video if she connects with his head (Mr. Lee ended up suffering from bruising in the area around the ear and underneath his temples) but she hits him with the vice grips from above several times before jumping down off the planter and joining the other girls pummelling him by kicking him twice. By this time the other girls have thrown punches, objects and kicks at Mr. Lee. He is overwhelmed and falls to the ground. If the video does not show M.J. connecting her vice grips with Mr. Lee it does show her upper body from behind throw 5 distinct punches at him.

[17] During this last wave one of the other girls is seen brandishing an object toward Mr. Lee’s chest. This would be the fatal stab to his heart, although no one including Mr. Lee, M.J., or the ambulance attendants would know this until he collapsed on the ground at the parkette about 20 minutes later.

[18] M.J. would go with the group of girls to other locations until they ended up at Sick Kids hospital. The only male teenager in the group ended up getting stabbed accidently in a separate incident and went to Sick Kids. The 8 girls including M.J. were arrested at Sick Kids waiting for their friend to be treated. M.J. had a pair of vice grips, pepper spray and a taser when she was arrested. There is no allegation that the pepper spray or taser were used in the attack on Kenneth Lee.

Kenneth Lee and his family’s loss

[19] At the sentencing I heard victim input from three of his family members. Mr. Lee had left the support of his family to find his own way. He was 59 and came from an overprotected and over supportive family. He did not do drugs or drink. He told corny jokes and was a mentor to his nephew and nieces. They bonded over pizza, chocolate milk and a good game of monopoly. He was a “shining light” to them. He told his family that he had found his way and goal in life, which was to help people.

[20] Kenneth Lee’s death left his family in deep pain. His mother doesn’t sleep now and has lost her appetite. She is now depressed, but is struggling emerging from this loss. The death of Kenneth Lee has left his family traumatized and devastated. They suffer from anxiety, depression, and a sense of vulnerability. In the words of Helen Shum, Kenneth Lee’s family is “…hanging on by a thread; afraid of collapsing.”

M.J.

[21] I had the benefit of several sources of information about Ms. J.: a YCJA s. 34 report from February 27, 2024 which was updated on August 21; a YCJA Pre-Sentence Report; an Intensive Rehabilitative Custody and Supervision (IRCSS) Assessment Report, dated August 23, 2024 which was updated on August 27, 2024; and a letter of support for Ms. J. from Urban Rex Solutions dated March 19, 2024. These were extremely helpful in determining this sentence.

[22] M.J. has no prior criminal record. On December 18, 2022 she was 13 years old, having just turned 13 that September. She is now 15. She has a closer relationship with her mother than her father. He was described as more stern than M.’s mother. According to M.’s mother parental supervision in the home is shared between both parents and M.’s grandmother. She was described as having fairly typical teenage rebellious periods. She would come home after her 9pm curfew. She argues with her parents about the house rules and would end the argument by going to a friend’s house for several hours. There were clear consequences about not following household rules which, as they are described, seem proportionate: taking away her phone, turning off the wi-fi.

[23] M.’s upbringing was not so typical when it came to drug use. She tried marijuana at 11. She had tried Percocet twice in the last year and was smoking marijuana daily until February 2024. She told the pre-sentence report writer that she enjoys getting high and has no plans to stop. She told the PSR writer that “ there are people who smoke marijuana and still have a successful life, I just need to learn how to multi-task”. On the night of the swarming she told the PSR writer that she drank alcohol, smoked marijuana and was “blackout drunk”.

[24] M. has an aggressive streak which is consistent with her involvement the evening of December 17 and attack on Kenneth Lee. She throws temper tantrums, and items when she gets upset. As it turned out, she was scheduled to attend at CAMH on December 19 for an assessment. That meeting never happened because she was being held in custody.

[25] M. was attending at local high school in the academic year 2023-2024. Her grades ranges from failing to barely passing. She had good attendance but there was a suspension in the spring of 2024 because of potential fighting with another student. She told the PSR writer that she enjoys going to school. She has 4 Grade 9 credits and plans to attend Grade 10.

[26] Ms. J. has had the benefit of multi-pronged community support. These were all positive. She was involved in counselling at the facility holding her while she was detained pending her bail hearing. Since February of 2023 she has been working with a Youth Mental Health Court worker. He referred her to a substance abuse counsellor who met with her twice. That substance abuse counsellor reported that M. was reserved and was open to sharing information as with other support workers. M. has been working closely with a youth worker who has been helping teaching supports, as well as family centered mental health counselling. From that M. has become less reactive and more reflective in her decision making. M. now enjoys working with younger girls as a mentor and aspires to be a role model and big sister.

[27] M.’s pre-trial confinement lasted some 243 days. Some of that (93 days) was in a closed custody facility, and the balance in an open custody facility. While she was in detention she self-harmed with a piece of glass.

[28] The PSR notes M. to be cooperative, engaging and forthcoming. She was patient and respectful.

[29] M. takes responsibility for her role in the death of Mr. Lee. She admits to being drunk and angry the whole time. She is remorseful, and said that “…the victim’s family must be traumatised, sad and depressed”. She wrote a letter of apology expressing her regret. She described her own conduct that night as “outrageous”. She admits to making “horrible choices” and is committed to become a better person.

[30] M. continues to be diagnosed with ADHD. The s. 34 is ambiguous about a clinical diagnosis from her drug use. It reports that she would have likely met the diagnostic criteria for moderate Cannabis Use Disorder at the time of the incident. The s. 34 report discloses that M. now smokes marijuana once or twice per week but her mother said that she is not aware of how often she smokes. Her father believes that her marijuana use does not impact her day to day functioning. Unanswered is whether M.’s current drug use is masking underlying symptoms flowing from ADHD.

[31] The PSR and s. 34 report disclose realistic insight by M. into the events which lead to the death of Mr. Lee: “it was M.’s perception that her legal involvement was the result of her drinking and the influence of negative peers”. M. and her mother are open to receiving support going forward, and she was found to be at the lower end of the Moderate Risk to re-offend within the next 12 months. She is a vulnerable youth with many strengths. She appears to be starting the process of engaging in healthy leisure activities such as cheerleading, singing and dancing. The s. 34 report suggests that and Intensive Support and Supervision Program (ISSP) may be appropriate.

[32] Notably, the s. 34 Report from February 29, 2024 diagnoses M. with three additional disorders: Oppositional Defiant Disorder; Conduct Disorder; and Learning Disability in reading, writing and math. The September 9, 2024 s. 34 Report is silent as regards the learning disability but does recognize her continuing challenges in school. She will have to repeat her Grade 9 math. More to the point in the 6 months between those reports, she has improved herself. The Oppositional Defiant Disorder and Conduct Disorder diagnoses are no longer warranted. This is evidence of her positive response to counselling on the two issues which suggest risk to re-offend violently in the future. I also take this as a positive indication of insight by M.J.

[33] A report was prepared by the Ministry of Children, Community and Social Services to determine her eligibility for Intensive Rehabilitative Custody and Supervision (IRCS). The first report I received was dated August 23, 2024 and did not include the updated S. 34 Report. Sentencing was adjourned so that the August 23 2024 report could include the updated s. 34 Report.

Institutional Experience

[34] The defence lead evidence that M.J. was subjected to two forms of institutional malfeasance while she was held in custody before trial. The Crown agrees with those facts, and that the youth custodial institutions failed to comply with Ontario Ministry regulations regarding M.J.’s treatment.

[35] She was strip searched by individual custodians on seven separate occasions. All occurred while she was being held at Sundance, which is a secure custody facility for young persons. Each strip search involved one staff member.

[36] Ms. J. was held at Marjorie Amos an open custody facility from April 15 – 25 2023. A flooding problem arose there and Ms. J., along with the other young girls from Marjorie Amos were taken on a plane to Kenora, while Marjorie Amos was being cleaned up. She stayed there for 11 days. Being 1900 km from Toronto Ms. J. lost the ability to see her family. Her schooling was interrupted. When counsel became aware of this, he brought an urgent application for a bail review and had a judge’s order issued requiring Ms. J. to be brought before a judge at 10am on April 25, 2023. They were indeed flown back to Toronto arriving while court was still in session but for reasons which were never explained was not brought to Court. Instead she was taken to a closed custody facility in London Ontario. This was in violation of Justice Sirivar’s ruling of March 1, 2023 which ordered her detention in an open custody facility. Sirivar J. also found that the strip searches of M.J. before that day (at Sundance from December 18, 2022 to February 7, 2023) were “inhumane”. With that ruling in place Ms. J. was strip searched three more times, in May of 2023 and February 2024 at Sundance.

[37] Ms. J. served a total of 243 days of pre-trial custody. Some of that was uneventful. The Crown identified 5 periods where M.J. was either strip searched at some point by the custodians or being brought by private plane across the province on no notice and not being brought to Court when required. That latter period totals some 93 days. It is the Crown’s position that Ms. J. is entitled to credit beyond 1.5:1 for those 93 days but has left it open what precisely that enhanced credit is.

Strip Searches

[38] Mr. Adler was candid that M.J. does not seek a constitutional remedy under s. 24 of the Charter for the strip searches. Rather, he says that it is a significant factor mitigating the sentence. The defence argument is that Ms. J. fully accepts responsibility but that the law requires the Court to consider the institutional malfeasance brought upon her.

[39] In R. v. Golden 2001 SCC 83 a majority of the Supreme Court of Canada considered the lawfulness of strip searches of arrestees. In framing a procedure for determining whether a strip search was lawful they said this, at par. 83:

While the respondent and the interveners for the Crown sought to downplay the intrusiveness of strip searches, in our view it is unquestionable that they represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them.

[40] The language of the Court is vivid and reflects judicial condemnation of unlawful strip searching. The Crown agrees that M.J. was illegally strip searched. M.J.’s claim to being improperly treated while in custody has considerable merit, particularly when considering the YCJA s. 3(1)(b)(iii).

3 (1) Policy for Canada with respect to young persons The following principles apply in this Act:

(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:

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

Emphasis added

Sentencing Positions

[41] The Crown seeks a 3 year sentence under s. 42(2)(O) of the YCJA broken down into 2 years custody less pre-sentence custody, and the final year on conditional supervision and various ancillary orders: DNA; a 10 year weapons prohibition; forfeiture of the vice grips, pepper spray and taser; and an order prohibiting communication with her co-accused and the male youth who was present.

[42] The Crown argues that pre-sentence custody for M.J. be credited at the rate of 1.5:1 for her open custody periods (150 real days), and 1.5 – 2:1 for her time spent in secure custody remand. The Crown argues that the pre-sentence custody should be deducted only from the custodial portion of the sentence in order to preserve a full year of conditional supervision. It is accepted that pre-sentencing custody for young persons must not be considered as part of the sentence. It is a mitigating effect of sentence only, see R. v. B.I.H. 2007 MBCA 89. With that said, time spent in pre-trial custody must be taken into account in fashioning a sentence, per s. 38(3)(d) of the YCJA, see R. v. E.I. 2006 ONCA 490, even if there is no fixed rate that pre-trial custody must be credited at, see R. v. M.B. 2016 ONCA 760.

[43] Mr. Adler seeks a non-custodial sentence on the basis that M.J. has now completed the custodial portion of her sentence and now requires treatment and counselling through a community supervision order.

Discussion and Findings

[44] It is axiomatic that youth sentencing involves different criteria than adults. General deterrence has no place in youth sentencing. The focus on sentencing youth is found in s. 38 of the YCJA, and connects accountability, rehabilitation and re-integration:

38(1)Purpose The purpose of sentencing under section 42(youth sentences) 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.

[45] Accountability must meet reflect the moral culpability of the young person having regard to the intentional risk taking of the offender see R. v. O.(A) 2007 ONCA 144 at par. 47 , and the harm caused by the offence, see R. v. KOM 2017 ONCA 106, R. v. L.R.P. 2004 NBCA 76. The accountability requirement means that sentencing youths is not entirely offender centric. The normative character of the offender’s conduct is a very live issue. The sentencing Court must consider societal values (see O.(A.) supra at par. 48). The British Columbia Court of Appeal found that:

… accountability includes consideration of the seriousness of the offence and requires a sentencing judge to balance and match the rehabilitative needs of the young person, with the other purposes and principles of sentencing.

See R. v. S. (S.N.J.) 2013 BCCA 379 at par. 29

Accountability and rehabilitation are therefore “…interrelated concepts”, see“ Prosecuting and Defending Youth Criminal Justice Cases – 3d ed” (Emond Publishing 2024) by B. Jones, S. Leece, M. Birdsell, and E. Rhodes at page 261.

[46] The YCJA also codifies the principles which the sentencing court must consider:

s. 38 (2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons with particular attention to the circumstances of aboriginal young persons;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community;

(e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if

(i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1) ,

(ii) the young person will reasonably be able to comply with the condition, and

(iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

38(3) Factors to be considered In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[47] The Youth Criminal Justice Act requires justice system participants to recognize the diminished moral culpability of persons under the age of 18, see YCJA s. 3(1)(b). This reflects a growing, and uncontradicted, body of evidence that the brain of persons under the age of 18 are not fully developed. I take considerable guidance on this from the 2022 White Paper on the Science of Late Adolescence: A Guide for Judges, Attorneys, and Policy Makers, Center for Law, Brain and Behaviour at Massachusetts General Hospital found at clbb.mgh.harvard.edu/white-paper-on-the-science-of-late-adolescence (hereafter 2022 White Paper ).

[48] The human brain is growing in the adolescent years and matures until a person’s mid 20s. This has significant implications for the crucial executive functions which are implicated in criminal behaviour: decision-making; self-control and emotional processing (2022 White Paper at p.2). There are many insights flowing from this, but for present purposes it is significant to recognize that youth are both more susceptible to peer pressure, and more amenable to positive change (ibid at p. 6 - 9). As regards the former, peer presence tends to engage the portions of the brain which are important for motivation and reward processing, but less developed than at maturity. In other words, when outside the influence of positive models such as family, and when in the company of similarly aged peers, youths are ill-equipped cognitively to make smart choices (ibid at p. 24).

[49] As regards the latter, ie. positive change there is a greater potential for positive change in adolescence because the growth in brain development which may result in poor decision making also makes it a better learner when given positive education and treatment. This is hopeful and is entirely consistent with the statutory requirement to emphasise rehabilitation when imposing sentences on youths.

Range of appropriate sentence

[50] I was provided with several sentencing decisions which were helpful in determining the range of appropriate sentence for M.J.. The cases show a great range of dispositions. In R. v. J.S-W. 2013 NBCA 44 a 2 year custody sentence with 3 months of conditional supervision order was upheld. The 17 year old Appellant had served 9 months of pre-trial custody and had pleaded guilty to manslaughter where he knifed the deceased. The young person acted on his own of his own volition and had high moral culpability. In R. v. P.C. 2013 ONSC 1293 the young person (who was 15 at the time of the offence) received 2.5 years less pre-trial custody after a manslaughter jury trial, leaving a 10 month closed custody sentence. That offence involved a savage beating by the young person and three others. The beating took place over some time. In R. v. S.N.J.S. 2013 BCCA 379 the younger person was convicted of manslaughter after a trial in which the young person was found to have knifed another young person to death. In R. v. S.Q.F. 2008 MBQB 119 the young person was 15 years old at the time of the offence. He pleaded guilty to beating the victim to death with 2 accomplices. He received a 4 month open custody sentence with 8 months of community supervision. He had been in pre-trial custody for 1 year. Most recently, in R. v. Z.M.L. 2024 ONSC 3445 the young person was nearly 18 at the time of the offence but 27 when he was sentenced. He was found guilty after a trial of beating a vulnerable victim to death, and had done 17 days of pre-trial custody. He received a sentence of 18 months of adult custody followed by 18 months of supervision.

[51] My review of similar decisions leads me to conclude that:

i) the effect of a guilty plea has a significant mitigating effect on the sentence. This is because accountability is a principal factor in YCJA sentencing and by pleading guilty without reservation the young person has taken a significant step towards that very goal. A guilty plea therefore has an outsized role in youth sentencing when compared to sentencing adults;

ii) the young person’s role in the crime, and therefore degree of responsibility is tied to accountability quite strongly, and;

iii) the rehabilitative needs of the young person are paramount in fashioning the supervision portion of the sentence.

Findings

[52] Based on all of this I would make the following findings.

1. Ms. J. was significantly involved in the beating of Kenneth Lee. The swarming was vicious and cowardly, because it was 8 on 1. The attack lasted just less than 4 minutes. Ms. J.’s involvement lasted about three minutes. The nature of the attack is an aggravating circumstance.

2. Mr. Lee was set upon by 8 teenagers putting him at a complete disadvantage to defend himself. M.J. wielded a pair of vice grips during her portion of the assault hitting him from above about the head and upper torso area while he was pinned against a concrete wall. Ms. J. assaulted Kenneth Lee throughout the swarming but was not the person who wielded the knife. She did not know that one of the girls had a knife and she did not inflict the fatal wound. She was surprised to learn that Mr. Lee had been stabbed. She was central to the physical assault on Mr. Lee.

The reason for the swarming appears to have started with an interest by some in the group, including M.J. to take the alcohol belonging to Mr. Lee’s partner Erika Tong. M.J. stood by while one of her co-accused took that bottle. I could not find that the swarming was planned in advance. There is no evidence of that before me.

The swarming at the parkette was preceded by the group of teenagers acting out during their trip downtown on the subway. Videos of the group running about through the TTC system, entering the system without paying, assaulting, jostling and accosting various passersby and other passengers in the TTC have a feral quality. The group activities in the preceding hours built in intensity, starting with running along a subway platform with a knife, jostling and verbally accosting subway riders, confronting riders, punching a woman at a station and then swarming Kenneth Lee. The only intervention during that period was the TTC security personnel who ordered the group out of St. George Subway Station only to have them re-enter without paying minutes later. The group was left to decide for themselves that night. Bad choices got progressively worse at each subway station.

M.J. was intoxicated through the evening. As she told the PSR writer, they had already had enough to drink that night and didn’t need to take the lady’s alcohol. Her level of intoxication is a mitigating effect on the sentencing decision.

3. Ms. J. has admitted her guilt without reservation, and taken responsibility for her role in the swarming. She wrote a letter of apology to the family of Kenneth Lee and understands the trauma and sadness that Kenneth Lee’s family now suffers from. There is genuine insight by M.J. and the apology is some reparation done to the community and family of Kenneth Lee.

4. Ms. J. has served 243 days of pre-sentence custody. During that time she was held in conditions which the Crown admits were not compliant with Ministry directives about holding young persons in pre-trial detention. This was not just a matter of several strip searches. The Ministry did not bring Ms. J. to Court when a judge required them to do so. She was taken to a remote detention facility well beyond the reach of her family.

5. The Crown invites me credit this pre-trial detention at the rate of 1.5:1 for open custody which would result in an effective credit of 225 days (7.5 months) of pre-sentence custody, and between 140 days (4.6 months) and 186 days (6.2 months) for closed custody periods on remand. Mr. Adler does not argue for a particular weighting to the pre-trial detention but does emphasise that the pre-trial detention is sufficient to meet the needs of accountability, specific deterrence and denunciation. I agree. Given the unique circumstances of M.J.’s pre-trial detention I find that both the length of, and institutional conduct during her detention have brought home to her the nature of what she did to Kenneth Lee. Furthermore, I find that the detention of this fifteen year old appropriately expresses society’s denunciation of this crime. This is not an exercise in precision, but in the circumstances I would credit M.J. for 15 months of effective pre-trial custody to reflect the institutional malfeasance and accompanying conditions. Again, I find that this is effective in making M.J. accountable in the circumstances, and expressing society’s denunciation of her role in the swarming, and the harm done. M.J.’s accountability is confirmed by her acceptance of responsibility. The circumstances of her guilty plea are without reservation and this plays a significant part of my finding that a further custodial sentence is not necessary to meet the need of accountability.

6. There is no previous criminal record for M.J.

7. Ms. J. has a cluster of challenges. She is a vulnerable youth. She has Attention Deficit Hyperactivity Disorder. She is improving herself and is now at the point of re-ordering her life processes. The various community based interventions appear to be working. She is now in the low range of risk to re-offend violently. At 15 years old she has a history of marijuana and alcohol abuse.

[53] Having rejected a further substantive custodial disposition as appropriate the question before me is narrowed down to whether M.J. should be subjected to an Intensive Support and Supervision Program (ISSP) or an Intensive Rehabilitative Custody and Supervision Order (IRCS). The former is a non-custodial sentence. The latter involves custody although even one day will make the young person eligible for IRCS. Mr. Adler fairly submitted that Ms. J. would be amenable to a short custodial sentence in order to be eligible for an IRCS. Ms. J. has been approved for both programs.

[54] In “ Prosecuting and Defending Youth Criminal Justice Cases – 3d ed” (supra) at page 278 the authors summarize the nature of an ISSP Order:

The ISSP focuses on young persons with serious mental health issues or specialized needs. It is meant to function as an alternative to custody. With an appropriate plan in place, a young person can be supported and supervised in the community without jeopardizing public safety. The sentence provides a clinically focused, individualized program that is designed to deliver services appropriate to the youth’s level of functioning and to target those special needs or underlying mental health issues that are recognized as having contributed to the youth’s offending behaviour. The level of supervision will be more stringent than that associated with a routine probation order but is still short of that found in an open custody placement .

Emphasis added

[55] With the foregoing in mind I find that M.J. should have an ISSP Order under s. 42(2)(l) for a further 15 months. I make this order because it matches all three goals for youth sentencing: accountability; rehabilitation and re-integration. I find that M.J. is at a critical juncture in her life. Without the necessary and intensive supports she is exposed to slipping back into anti-social habits. With them there is good reason to believe that she can move on into pro-social adulthood.

[56] This Order will run in conjunction with 15 months of youth probation, the terms of which are:

-to appear before the Youth Court when required to do so: -report to a provincial director or designate; -notify the clerk of youth court or youth worker assigned of any change of address, employment or education; -remain within Ontario; -attend school; -reside with parents; -no communication with co-accused A.W., A.B., S.C., T. G-V, C.U., J.F., S.S., the witnesses J.B. or Erika Tong. -maintain counselling and treatment as directed by youth probation or I.S.S.P. worker as directed. -not to possess weapons.

[57] There will be ancillary orders:

-10 year weapons prohibition under s. 51 of the YCJA; -DNA databanking; -The vice grips, pepper spray, and taser seized from M.J. upon her arrest will ordered seized. -Under s. 42(2)(s) M.J. may not communicate with any of her co-accused: for the duration of the ISSP Order.

[58] Counsel were extremely helpful in narrowing the issues in this case and I am grateful for their work.

Released: September 16, 2024 Signed: Justice David Rose