Her Majesty the Queen v. P.C.

Court File No.: YC 11-10000007-0000 Date: 2013-03-01 Ontario Superior Court of Justice

Between: Her Majesty the Queen (Applicant) – and – P.C. (Defendant)

Counsel: Susan Ientile and Kevin Stewart, for the Crown Edward F. Hung and John R. Mann III, for the Defendant

Heard: December 5, 2012 and January 22, 2013

Molloy J.:

REASONS FOR SENTENCE

A. INTRODUCTION

[1] P.C. is a young offender. On September 27, 2012, a jury found him guilty of manslaughter in relation to the death of a young man named Jin Tao Zhu, who bled to death internally after a severe beating on Feb 14 to 15, 2010. It is now my task to impose a fit sentence for this crime. P.C. was 15 years old at the time of the offence; Jin Tao was 20. Five young men were involved in the events leading to Jin Tao’s death. P.C. was one of the group, but not the ringleader. All of the others were between the ages of 18 and 20 and were charged and sentenced as adults.

[2] The Crown does not seek to have P.C. sentenced as an adult. Accordingly, this sentencing is governed by the Youth Criminal Justice Act (“YCJA”).[^1] Given P.C.’s age at the time of the offence, the maximum sentence for the offence of manslaughter is three years.[^2] The Crown seeks that maximum in light of the aggravating factors and the fact that the mitigating factors have already been taken into account in not seeking an adult sentence. The defence submits that the appropriate sentence is time served plus two years probation.

[3] For the reasons that follow I believe the circumstances of the offence and the circumstances of P.C. require a term of custody beyond what he has already served. Further, there was no meaningful plan suggested for how for a period of probation that would address the goals of sentencing. I am imposing a sentence of 2 ½ years, which after adjustment for time served results in remaining time to be served of 18 months. The first 10 months shall be in closed custody, with the remaining 8 months under supervision in the community.

B. RELEVANT FACTORS UNDER THE STATUTORY SCHEME

[4] With a few limited exceptions, the sentencing provisions of the Criminal Code do not apply to young offenders.[^3] In particular, the principles of general and specific deterrence, which are important considerations in the sentencing of adults, are not referred to in the YCJA and are not relevant to the sentencing of young offenders.[^4]

[5] The general purposes of a youth sentence are defined under s. 38 of the YCJA to include:

• holding the young person accountable for his offence;

• imposing just sanctions that have meaningful consequences for the young person;

• promoting the rehabilitation of the young person and his reintegration into society; and,

• thereby contributing to the long-term protection of the public

[6] These same themes are reinforced by s. 3(1) of the YCJA, which sets out the principles underlying the legislation 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;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and

(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements;

[emphasis added]

C. CIRCUMSTANCES OF THE OFFENCE

[7] It is clear from the legislative scheme, and consistent with common sense, that a fit sentence must take into account the seriousness of the crime as well as the young offender’s degree of responsibility for it. The seriousness of the crime is clear. However, the extent of P.C.’s involvement in the events leading to Jin Tao’s death is not obvious from the verdict.

(i) The Seriousness of the Offence

[8] The jury convicted P.C. of manslaughter. It follows that he is responsible (at least in part) for the death of another human being, 20-year-old Jin Tao Zhu.

[9] The victim in this case was wholly innocent. He was killed because on the night of Valentine’s Day, 2010, he was having a drink in a bar with a young woman. Another man, Xiao Ming Chen (“Allan”) was interested in that young woman. He gathered together three others: his friend Peng Ren; P.C.; and Zhao Hui Chen (who had a car). Allan and P.C. went into the bar, while Peng Ren and Zhao Hui Chen waited in the car. A short while later, Allan and P.C. brought Jin Tao outside. He was put into the car and driven to a remote area of Toronto near Ashbridge’s Bay. There, Jin Tao was beaten savagely with fists, feet, a large stick, and a boulder. P.C. was present during most of the beating. Towards the end, another young man, Zhong Zheng, joined the group. Jin Tao was then put back into the car, still conscious, but not able to walk on his own. He asked to be taken home. Allan refused because he was concerned that Jin Tao’s mother would call the police as soon as she saw her son in that condition. He directed that Jin Tao be taken to Allan’s home, which is what the group did. P.C. helped carry Jin Tao up the stairs and left him in a bedroom at Jin Tao’s home. By the next morning, Jin Tao was dead.

[10] Dr. Toby Rose, a pathologist and the only medical expert witness called at trial, testified that Jin Tao bled to death internally as a result of blunt force injuries that damaged his internal organs. Notably, his spleen was lacerated (resulting in extensive bleeding and the accumulation of 500 ml of blood in his abdomen); his left kidney was split (resulting in his kidney bleeding into the urinary tract and grossly bloody urine); there was hemorrhaging in the area around his pancreas; there were contusions and bruising to the lower lobes of both lungs; and there was an abrasion and contusion on his scalp (resulting in some swelling of his brain and a subdural hematoma with the accumulation of 50 ml of blood). Given the fact that there was considerable internal bleeding and some swelling of the brain, Dr. Rose concluded that Jin Tao did not die immediately after sustaining the injuries, but rather some number of hours later. She also testified that all of the injuries looked to be contemporaneous. She opined that the injuries happened at about the same time, after which there would have been a period of survival, and then death. Dr. Rose testified that Jin Tao’s injuries were fatal if untreated. However, with timely medical intervention, his life could have been saved.

[11] This was a senseless and savage killing of a young man who had done nothing at all wrong. The manner in which Jin Tao met his death, the humiliating and painful ordeal he suffered throughout that night, and the fact that so many individuals (including P.C.) could have saved him but did not, are factors that can only have made his death even harder for his family to bear. The victim impact statements of his parents and sisters are, quite simply, heart-breaking.

[12] It is clear that the ringleader and main perpetrator of the beating was Allan. He pleaded guilty to second degree murder. P.C. was also charged with second degree murder and was alleged by the Crown to have assisted Allan in carrying out murder. However, he was not convicted of second degree murder, but only of manslaughter.

[13] Obviously, manslaughter is still an extremely serious offence. Only murder would have been more serious.

(ii) The Degree of P.C.’s Responsibility

How can P.C.’s degree of responsibility be established?

[14] The Crown alleged at trial that P.C. assisted Allan to kill Jin Tao by: (1) helping to get Jin Tao out of the bar and into the waiting car; (2) assisting in the beating by ensuring that Jin Tao could not escape from Allan; (3) actively participating in the beating; and (4) helping to bring Jin Tao into Allan’s house and abandoning him there, causing his death.

[15] The defence took the position that although P.C. was present, he did not intend to do anything to assist Allan in killing Jin Tao. The defence argued that even if P.C. was found to have assisted in the beating, he could not be guilty of homicide because of the possibility of an intervening cause of death. The defence theory was that Allan could have assaulted or suffocated Jin Tao during the night, which would absolve P.C. of any responsibility. Finally, the defence submitted that P.C. should be acquitted because he acted at all times under duress because of threats made against him by Allan.

[16] On sentencing, the Crown submits that P.C.’s active involvement in getting Jin Tao to the site of the beating as well as his involvement in the beating itself are aggravating factors that must be taken into account. Mr. Hung, for the defence, submits that the most likely inference from the jury verdict is that P.C. was only found guilty of manslaughter because he helped carry Jin Tao into Allan’s house, knowing that Jin Tao did not want to be there, and that Jin Tao died as a result. He submits that this is the only inference I can draw and that I cannot speculate about what else the jury may have determined, nor substitute my own views for those of the jury. Mr. Hung relies in this regard on the Supreme Court of Canada decision in R. v. Ferguson.[^5] Mr. Hung further submits that it would be “impossible” for me to make any findings about P.C.’s involvement apart from having carried Jin Tao into the house, because I cannot know what was in P.C.’s mind.

[17] I agree that the Ferguson decision is directly on point and stipulates what a sentencing judge can and cannot do in respect of factual findings based on the evidence at trial. However, it does not support the proposition for which Mr. Hung cites it. Rather, it supports the opposite conclusion.

[18] In Ferguson, an RCMP officer was charged with second degree murder after an altercation with a prisoner in a holding cell in the course of which the prisoner was shot twice with the officer’s service revolver. The first shot hit the prisoner in the stomach and was non-fatal. The second and fatal shot entered the prisoner’s head. Constable Ferguson testified at trial that the prisoner attacked him when he entered the cell, pulled his bulletproof vest over his head, and grabbed for his revolver. He said that he was still struggling with the prisoner for the gun when the shots went off. However, in an earlier statement, Constable Ferguson said that he had regained control of the gun when the shots were fired, which was supported by expert evidence. Both the booking officer and the inmate in the adjoining cell testified that three seconds elapsed between the two shots. This was consistent with the nature of the revolver which did not permit rapid, automatic shots.[^6] The Crown based its case entirely on the second shot, which caused death.[^7] The trial judge instructed the jury that if it rejected self-defence and found that the accused did not have the requisite intent for murder (intent to cause death or bodily harm likely to result in death), then it must render a verdict of manslaughter. This was the only basis for manslaughter put to the jury.

[19] The jury convicted Constable Ferguson of manslaughter. The mandatory minimum sentence for manslaughter is four years imprisonment. The trial judge considered whether such a sentence was unconstitutional as constituting cruel and unusual punishment. In concluding this to be the case, he attempted to reconstruct what he believed to be the logical reasoning of the jury and also made some of his own factual findings as to the evidence. The Supreme Court held that the trial judge was precluded from doing the former, and erred in respect of the latter by drawing conclusions inconsistent with the evidence.

[20] The following general principles emerge from Ferguson:

(1) The sentencing judge must first determine what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.[^8]

(2) The sentencing judge is bound by the express and implied factual implications of the jury’s verdict.[^9]

(3) When the factual implications of a jury’s verdict are ambiguous, the sentencing judge must not attempt to discern the logical reasoning of the jury.[^10]

(4) Where a jury may have arrived at a unanimous verdict for different reasons and on different theories of the case, it is speculative and artificial for the sentencing judge to attribute a single set of factual findings to the jury, unless they must unanimously have found those facts.[^11]

(5) Rather, when the factual implications of the jury are not clear, the sentencing judge must make her own independent findings of fact, based on the evidence at trial, on any issue necessary to the determination of a fit sentence.[^12]

(6) If the fact being considered by the sentencing judge is aggravating, she must be satisfied of that fact beyond a reasonable doubt before taking it into account on sentencing. Otherwise, the standard is the balance of probabilities.[^13]

[21] In applying these principles from Ferguson to the task now before me, I conclude with respect to the first principle that it is necessary for me to know the degree of P.C.’s responsibility in order to determine an effective sentence.

[22] On the second principle, I must accept any factual findings that clearly arise from the jury’s verdict. The jury in this case considered and rejected a verdict of second degree murder. Since the jury convicted on manslaughter, the jury could not have rejected second degree murder based on the defence of duress. That defence applied equally to both possible verdicts. Therefore, it is a necessary implication of the jury’s verdict that P.C. did not possess the requisite intent for second degree murder in respect of any of the possible scenarios of his participation, but did have the requisite intent for manslaughter in respect of one or more of those scenarios. For the purposes of sentencing, therefore, I take it as established by the jury’s verdict that P.C. either did not know that Allan intended to kill Jin Tao or did not know that Allan intended to cause bodily harm to Jin Tao that he knew was likely to cause death and was reckless as to whether it would cause death.

[23] However, the manslaughter verdict could have arisen from any or all of the Crown’s alleged scenarios of participation. Further, it is possible that some jurors found manslaughter on the basis of one or more of the possible scenarios, but that other jurors found manslaughter on a different scenario.

[24] With respect to the third and fourth principles, which are related, I am satisfied that the jury’s verdict in this case is ambiguous as to the precise nature of P.C.’s involvement at the various stages leading to Jin Tao’s death. The jury was instructed with respect to two possible causes of death: (1) internal bleeding from blunt force injuries as a result of the beating in the park; and (2) an intervening cause of death involving Allan administering a further beating or smothering Jin Tao during the night. With respect to the first possible cause of death, there are four possible ways that P.C. could have assisted in aiding Allan: (1) getting Jin Tao into the car; (2) preventing Jin Tao’s escape at the park; (3) beating Jin Tao at the park; and (4) delivering Jin Tao to Allan’s home against his wishes and leaving him there helpless. On each of those scenarios, it is possible that one or more jurors could have concluded that Jin Tao assisted Allan in a manner that would have made him guilty of manslaughter. On the intervening cause of death, it is possible that one or more jurors could have concluded that Jin Tao assisted in forcibly confining Jin Tao at Allan’s home and that this resulted in Jin Tao’s death, thereby making him guilty of manslaughter, even if they did not find P.C. guilty of manslaughter on any of the other scenarios. Also, some of the jurors may have been satisfied that P.C. was guilty of manslaughter in respect of every mode of participation alleged by the Crown, whereas some may have been satisfied on only one scenario. In addition, although individual jurors may have been satisfied as to Jin Tao’s actions constituting manslaughter at various stages, they may nevertheless have concluded that such actions were excused by the defence of duress. Those jurors might not have reached the same conclusion as to the availability of the defence at other stages. For example, it would have been easier for P.C. to avoid Allan’s threats at the bar, or after returning home at the end of the night, than would have been the case at the park. Therefore, some jurors might have applied the duress defence to the beating at the park, but not to getting Jin Tao into the car or leaving him at Allan’s home.

[25] In short, the possible routes to the verdict are numerous and I have no way of knowing what facts were found by each juror. There may not have been unanimity by the jury on particular facts, but only on the ultimate verdict. The clear direction from the Supreme Court in Ferguson is that in this kind of situation it is improper for the sentencing judge to attempt to discern the logical reasoning process of the jury. I must not speculate as to what facts they likely accepted. Apart from the clear implication that the jury unanimously rejected a state of mind consistent with second degree murder, I cannot identify only one theory or single set of facts that must have been accepted by the jury to support the finding of manslaughter.

[26] Mr. Hung argues that the jury “must have” based its verdict on forcible confinement and P.C.’s assistance in bringing P.C. into Allan’s house and leaving him there. I certainly agree that this scenario was the strongest case for the Crown. However, it does not follow that this was the only basis upon which the jury reached its conclusion, nor does it mean that the jury necessarily rejected criminal responsibility on all of the other grounds advanced. What Mr. Hung is asking me to do is precisely what the Supreme Court prohibited in Ferguson, which is to speculate on what was the most likely thought process of the jury.

[27] Accordingly, I move to the fifth principle, which is to determine the extent of P.C.’s involvement in the events leading to Jin Tao’s death. This is a determination I must make based on the evidence at trial.

[28] Finally, I recognize that P.C.’s active involvement in causing Jin Tao’s death is an aggravating factor in sentencing. I must be satisfied beyond a reasonable doubt as to his responsibility before I can consider it as a relevant factor affecting sentence.

What was the cause of death?

[29] I am satisfied beyond a reasonable doubt that Jin Tao died of internal bleeding as a direct result of the beating he suffered in the park earlier that night. In reaching that conclusion, I rely primarily on the evidence of the expert pathologist, Dr. Toby Rose. Dr. Rose testified that she could not pinpoint the exact time of death, but that it would have taken some number of hours for Jin Tao to die of his injuries. There was very little lividity in the body after death due to the fact that there had been so much internal bleeding that there was little blood left to pool in the body after death. She testified that the damage and bleeding internally were fatal without medical intervention. It is clear that upon Jin Tao being left at Alan’s home, he was not going to get any medical intervention. Once he was left there, his death was inevitable.

[30] The defence argued that there could have been an intervening cause of death because of of Allan either further assaulting, or alternatively smothering, Jin Tao after the others had left. Neither of these theories causes me to have a reasonable doubt as to the cause of death.

[31] Dr. Rose testified that there was one injury on Jin Tao’s cheek that looked to have been sustained after death. In her opinion, all of the other injuries looked like they happened at about the same time as each other. Therefore, the medical evidence does not support the theory of two separate beatings – a more minor one at the park and a more significant one later causing death. Further, there is no indication from the appearance of the room in which Jin Tao’s body was found (the same room in which he was placed by P.C. and others) that there had been any kind of altercation and struggle there. Allan’s father was asleep in the house at the time. It is extremely unlikely that Allan would have engaged in a further assault on Jin Tao during the night, with the significant risk of his father hearing and intervening.

[32] Dr. Rose conceded that the possibility of Jin Tao having been smothered with a pillow could not be ruled out by pathological evidence because it would leave no trace. She said she would expect to see injuries to the face and hands of the victim if he had been smothered, and there were no such injuries on Jin Tao’s body. However, she conceded that if he was smothered after he was already unconscious, there would be no such indications. I would also question the logic of Allan smothering an already unconscious Jin Tao. It makes no sense to me that he would do so, as suggested by the defence, because he was trying to keep Jin Tao quiet to avoid inquiries from his father who was sleeping elsewhere in the house. Surely he would have been even more concerned about his father finding a dead body in the house than his father hearing Jin Tao groaning.

[33] In any event, given the severity of the beating Jin Tao had already received, and the fact that his injuries were fatal without medical treatment, those injuries were a significant contributing factor to his death, regardless of whether Allan speeded along the time of death through smothering.

[34] Finally, Xiao Ming Chen (“Allan”) was a Crown witness at trial. He pleaded guilty to second degree murder and was in the course of serving a life sentence at the time of his testimony. I am mindful of the unsavoury character of this witness, and also of his often “convenient” lack of memory of some details (e.g. why he was angry with Jin Tao). However, he made no attempt to implicate others in the assault on Jin Tao, and took responsibility for being the ringleader and main instigator. He was candid about the things he did to Jin Tao in the park, all of which were reprehensible. However, he denied any assault on Jin Tao in the house. I believe him on this point.

[35] Accordingly, based on the evidence at trial, I am satisfied beyond a reasonable doubt that the injuries sustained by Jin Tao as a result of the beating at Ashbridge’s Bay Park were the cause of his death.

P.C.’s Involvement in Getting Jin Tao into the Car

[36] There is no suggestion by the Crown that P.C. was the primary person responsible for the death of Jin Tao. On the contrary, the Crown’s position is that Allan was the principal actor in causing Jin Tao’s death. The overwhelming weight of the evidence confirms this position and I have no hesitation accepting it. The Crown argues that P.C. is responsible for causing the death because he assisted Allan in his unlawful acts leading to Jin Tao’s death. The first such act relied upon by the Crown was getting Jin Tao into the car, which then took him to the isolated park where he was beaten. I am satisfied on the evidence that P.C. did assist Allan in this endeavor and that, in doing so, he either knew, or is fixed with knowledge, that Jin Tao would be harmed as a result.

[37] P.C. testified at trial that on the night of Valentine’s Day he had gone to visit his girlfriend, bearing flowers, and that while there he received a call on his cellphone from Allan. He testified that Allan told him he had to come and meet him at the Pizza Pizza nearby or he would “bury him.” P.C. said he took this to be a threat. He said that Allan had assaulted him on two prior occasions and that he was afraid of him. According to P.C., Allan sounded intimidating. I believe this. As a result of this call, P.C. said he lied to his girlfriend and headed off to meet Allan. At the Pizza Pizza he met up with Allan and Peng Ren. He said he was aware that Allan was looking for Jin Tao, but that he did not know why. He described Allan as being “stern”, “unsmiling” and “frowning.” He acknowledged on cross-examination that he knew Allan was up to something “not nice,” but said that he did not know what was going to happen.

[38] Peng Ren testified that he saw Allan put a stick into the trunk of the car before they headed out in search of Jin Tao. He clearly knew what the general plan was once they located Jin Tao. However, there is no evidence that P.C. saw the stick at this point, and he denied that he did.

[39] If P.C. did not have specific knowledge of why Allan was looking for Jin Tao, he certainly was aware of the general nature of Allan’s intent and that it was “not nice.” He said he made no inquiries of Allan or Peng Ren as to what was going on. In my view, either he knew there was a plan afoot to assault Jin Tao, or he had sufficient information to believe this was likely and deliberately made no inquiries. Instead he went along. He either knew what was about to happen, or he was willfully blind to that fact. He is therefore fixed with the knowledge that Allan intended to harm Jin Tao.

[40] When Allan learned that Jin Tao was at a particular bar, he, Peng Ren, and P.C. went to that bar, driven by Zhao Hui Chen (“the driver”) in his car. Upon arriving, Peng Ren and the driver stayed in the car, while Allan and P.C. entered the bar. According to P.C., Allan asked him to go in and therefore he did. He claimed he did not know why he was asked to go in. However, once inside the bar, Allan told Jin Tao’s female companion to leave. She was put in a cab outside the bar and sent home. Allan then told Jin Tao he was coming with them, indicating there was a car waiting just outside.

[41] I have no doubt that P.C.’s presence in the bar was intended to, and did, facilitate getting Jin Tao out of the bar and into the waiting car. In his testimony, Allan said that he chose P.C. to accompany him into the bar because it was “natural” to do so. In fact, it was anything but natural. P.C. was only 15 years old at the time, whereas the others were over 18. However, the two men left in the car were small in stature, as was Allan. P.C., although younger, was bigger and stronger than any of the others.[^14]

[42] P.C. knew that Allan was up to no good and that Jin Tao was going to be harmed. He did not warn Jin Tao, and took no steps to leave the bar or call police. Instead, he stood by, providing backup to Allan, even if it was simply by standing there. There is no evidence that P.C. did anything beyond that. I do not, for example, find that he manhandled Jin Tao into the car, or anything of the sort. However, he was present for a reason, which was to ensure that Jin Tao got into the car. Further, he either knew, or deliberately avoided knowing, that Jin Tao was going to be harmed once he got into that car.

[43] Because P.C.’s presence facilitated the beginning of the end for Jin Tao, and because it was meant to accomplish that purpose, it goes beyond “mere presence” of the type that would excuse a mere bystander to an assault. Rather, knowing that an unlawful act was going to occur, P.C. assisted in delivering the victim to his fate. I am satisfied of this beyond a reasonable doubt. I do not believe the protestations of P.C. on this point, nor does anything about the defence evidence or position cause me to have a reasonable doubt.

[44] That said, this was very minimal assistance. P.C.’s degree of responsibility is at the very low end of the scale, and there is no reason to believe at this stage that P.C. had any idea of the severity of the harm that was about to befall Jin Tao.

P.C.’s Involvement in Preventing Jin Tao’s Escape at the Park

[45] When the group of young men arrived at Ashbridge’s Bay Park, they all got out of the car. Allan retrieved the large stick from the trunk of the car where he had placed it and the group headed along a trail going deeper into the woods. This was after midnight on a night in the middle of February. There can be no question that P.C. was aware of what was about to happen; that Allan planned to beat Jin Tao in the woods. On P.C.’s own evidence, he himself had been taken to that very location by Allan and others and had been beaten there. Also, as they were heading to the site of the beating, P.C. was aware that Allan was carrying a large stick.

[46] Notwithstanding that knowledge, P.C. did nothing to intervene and did not speak to any of the others about intervening. Instead, he again went along with the group until they reached a clearing, where Allan began the beating. P.C. stood, along with the others, a short distance away while the beating was being administered.

[47] P.C. testified that at the beginning, when he arrived at the clearing and Allan started beating Jin Tao, he stood between Allan and Jin Tao and tried to stop Allan. I do not believe P.C.’s evidence on this point. He sought at all times to minimize his own conduct and never took responsibility for any of his own actions. I do not believe that he ever stood up to Allan, or that he ever even made a move to do so. He was completely compliant throughout. Although the testimony of Allan and Peng Ren was not without problems, I believe their evidence on this issue. They both testified that P.C. did not make any move to intervene. Allan took responsibility for his own leadership role and, if anything, sought to minimize the involvement of the others. Peng Ren also was careful to minimize P.C.’s involvement in all other respects. I do not believe that either Allan or Peng Ren would deny that P.C. had attempted to stop the beating if, in fact, that had happened. I conclude that it did not. I reject P.C.’s evidence as untrue and it does not cause me to have a reasonable doubt as to P.C.’s role at this stage.

[48] I am satisfied beyond a reasonable doubt that P.C.’s presence at the beating facilitated Allan’s illegal act. Allan’s purpose was to assault Jin Tao, and it was clear he did not intend to carry this out through a “fair fight.” He brought his friends with him to ensure that Jin Tao could not escape and would not be able to resist or defend himself so as to avoid the beating. P.C.’s presence therefore was not just happenstance. He was there for a purpose, and his presence accomplished that purpose. By being present with the others, he aided Allan’s unlawful acts in assaulting Jin Tao.

[49] Although P.C. was only 15, he certainly had the intellect and maturity to know what was going on and to realize that his presence there was assisting Allan by preventing Jin Tao’s escape. I am satisfied beyond a reasonable doubt that P.C. must have been aware that his presence at the scene would have the effect of assisting Allan in this purpose. Any other conclusion defies common sense.

[50] The beating was severe and involved Jin Tao being assaulted with fists, boulders and a large wooden stick. At one point Allan ordered Jin Tao to remove his clothes and roll in the dirt and snow, as he was being further beaten. Still, P.C. stood by, assisting the ongoing brutalization. P.C. himself testified that Jin Tao tried to escape into the trees to avoid a further beating, but that Allan brought him back. I am satisfied beyond a reasonable doubt that P.C. knowingly assisted Allan’s assault on Jin Tao by standing by with the others and blocking any chance of escape for Jin Tao. The nature of this involvement is more serious than merely assisting to get Jin Tao into the car.

P.C.’s Involvement in the Actual Beating

[51] P.C. testified that after Allan had beaten Jin Tao for some time, he ordered the other members of the group to also beat Jin Tao. He said that all of them went up to Jin Tao, one by one, and beat him as directed. P.C. testified that he used his open hand to strike Jin Tao on his upper arm near his shoulder, but that as his hand was about to make contact, he decreased his force so that Jin Tao received only a slight tap.

[52] Allan initially testified that he could not remember if P.C. had beaten Jin Tao. Upon being reminded of his evidence at the preliminary hearing, he said that P.C. had hit Jin Tao once or twice with a “slight tap.”

[53] Peng Ren testified that Allan told all of them that they would be beaten themselves if they did not beat Jin Tao. He said that each of them, including P.C., did beat Jin Tao as directed. In examination in chief, Peng Ren said that he could not remember whether P.C. used his hand or an open fist or how many times he hit Jin Tao. However, after being referred to his preliminary hearing testimony, he adopted his evidence given then that P.C. used his hand to hit Jin Tao and that by that time Jin Tao was already on the ground, as opposed to standing. Later, under cross-examination, Peng Ren testified that he could not remember how P.C. beat Jin Tao or whether he was pretending. However, again when confronted with his preliminary hearing testimony, he testified that P.C. had only pretended to hit Jin Tao and this had taken only a few seconds.

[54] It is difficult to come to any firm conclusion based on this testimony. I do not necessarily believe P.C., but I do accept that he participated in the beating only upon being directed to do so by Allan and that the blows he administered could have been minimal. I also have some difficulty accepting the testimony of Allan and Peng Ren, both of whom had trouble keeping their stories straight on this point. I believe both of them may have been deliberately minimizing P.C.’s level of involvement.

[55] When P.C. was arrested the day after this incident, photographs were taken of his swollen and scraped knuckles. The condition of P.C.’s hands appears to me to be consistent with P.C. having been more actively involved in the beating than he has admitted to. P.C. testified that his hands were in that condition as a result of carrying heavy boxes at work, plus the cold weather, plus the “friction” from the boxes. He said he had tried to treat the condition with cream, but to no avail. I did not find his evidence to be credible. His testimony followed the evidence given by his father and his sister and he merely “parroted” what they had said. I also found the testimony of P.C.’s father and sister to be unconvincing. I believe they were merely trying to assist P.C. by providing an explanation for his bloodied knuckles.

[56] That said, I have no reliable evidence from anyone who was present that P.C. took an active role in the beating. I am suspicious that he administered far more blows than he has admitted and with considerably more force, based on the appearance of P.C.’s hands and the all-too-convenient explanations advanced for this by him and his family. However, I am unable to say that I am satisfied beyond a reasonable doubt that P.C. played an active part in the beating based solely on the appearance of his hands. This is simply too slender a reed upon which to base such a weighty finding.

[57] Accordingly, I find that P.C. participated in the beating, but I am not able to conclude that his participation was anything beyond minimal or trifling.

P.C.’s Involvement in Abandoning Jin Tao at Allan’s Home

[58] After the beating in the park, Jin Tao was too badly injured to walk unassisted. He was helped to walk to the car and then was placed in the backseat. There were now too many people to fit into the car. There had been five people in the car on the way to the park: the driver (Zhao Hui Chen), Allan, Peng Ren, P.C., and Jin Tao. While they were at the park, Allan called another friend, Zhong Zheng, to join them. The driver went and picked up this additional young man and returned to the park with him, and he too participated in the beating. Therefore, at the end of the beating there were six individuals and only one car. Allan directed P.C. to get into the trunk, which he did.

[59] The defence placed considerable emphasis on the fact that P.C. was made to ride in the trunk of the car. I see it merely as an indication that Allan was in charge and that P.C. did everything he was directed to do. Although P.C. was the largest in size of all of the young men in the group, he was also the youngest, and in that sense at the bottom of the pecking order. What is critical is that P.C. knew where they were going and he knew why. He could hear the conversation in the car from the back trunk.

[60] P.C. admitted hearing Jin Tao ask to be taken home. He also heard Allan say that Jin Tao could not go home because if his mother saw him in that state, she would call the police. Therefore, Jin Tao was to be taken to Allan’s house.

[61] When the group arrived at Allan’s house, the driver stayed with the car. P.C. assisted the others in bringing Jin Tao into the house, up the stairs, and putting him into a bed in an upstairs bedroom. The group then left and P.C. went home. P.C. went to bed and the next morning went to work as usual. Meanwhile, Jin Tao was bleeding to death from his injuries. P.C. testified that he did not do anything to assist Jin Tao because Allan threatened them when they left that he would kill anyone who went to the police.

[62] P.C. gave conflicting testimony as to his state of mind about leaving Jin Tao at Allan’s house. At one point, he testified that he was very scared and that he was worried Jin Tao would be beaten again at Allan’s house. Later in his evidence, he testified that he believed Allan must simply have wanted Jin Tao to rest, otherwise he would have left him at the park. Clearly, given the acquittal on second degree murder, the jury accepted that P.C. was not aware that Allan intended to kill Jin Tao, or that Allan was recklessly indifferent to whether Jin Tao died from his injuries. However, the rest of P.C.’s testimony on this point is completely without credibility.

[63] P.C. knew that Jin Tao was badly injured. He knew that Jin Tao would not be able to leave Allan’s house unassisted. He had seen Allan viciously beating Jin Tao and knew full well Allan’s level of animus towards Jin Tao. He also knew that Allan did not want Jin Tao to go home because he did not want the police to be notified. P.C.’s contention that Allan now simply wanted Jin Tao to get some much needed rest is absurd. He knew full well that Jin Tao did not want to go to Allan’s house, and he knew that the reason he was being brought there was to prevent the police from becoming involved.

[64] There can be no question that P.C.’s actions in delivering Jin Tao to Allan’s home and leaving him there contributed to Jin Tao’s death as a result of the beating at the park. Jin Tao was still conscious at the time P.C. left him there, but he was helpless. He could not escape from Allan’s home. He could not get medical assistance for himself. He died over the course of the night from injuries that, according to the expert medical evidence, would have been treatable if he had not been prevented from obtaining medical attention.

[65] I am satisfied beyond a reasonable doubt that P.C.’s action in leaving Jin Tao at Allan’s house was a major contributing cause to his death. In doing so, P.C. was assisting Allan in completing his wrongful acts and in seeking to evade detection of his earlier wrongful act of assault. Further, keeping Jin Tao at Allan’s house against his will constituted the additional wrongful act of unlawful confinement, which resulted in death. This is another basis for finding P.C. guilty of manslaughter. P.C.’s acts of assistance on this scenario are direct and substantial. He bears considerable responsibility for the death that resulted.

The Defence of Duress Is Not Available

[66] Counsel for P.C. argued that P.C. acted under duress and that he must therefore be acquitted. Clearly, this defence was rejected by the jury. However, since the specific basis for the manslaughter conviction cannot be discerned from the verdict, it is equally impossible to determine what the jury’s determination was as to the duress defence at each stage of the analysis. I must therefore consider whether or not P.C.’s criminal conduct can be excused on each of the scenarios based on the “defence” of duress.

[67] In an earlier decision in this case, I held that the common law defence of duress applies, notwithstanding the exclusion in s. 17 of the Criminal Code.[^15] The Supreme Court of Canada recently clarified some of the legal principles applicable to the common law defence of duress in its decision in R. v. Ryan.[^16] With respect to the requisite elements of the defence, the Court held as follows, at para. 55:

Following this Court’s analysis in Ruzic, we can conclude that the common law of duress comprises the following elements:

• an explicit or implicit threat of death or bodily harm proffered against the accused or a third person. The threat may be of future harm. Although, traditionally, the degree of bodily harm was characterized as “grievous”, the issue of severity is better dealt with at the proportionality stage, which acts as the threshold for the appropriate degree of bodily harm;

• the accused reasonably believed that the threat would be carried out;

• the non-existence of a safe avenue of escape, evaluated on a modified objective standard;

• a close temporal connection between the threat and the harm threatened;

• proportionality between the harm threatened and the harm inflicted by the accused. This is also evaluated on a modified objective standard;

• the accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.

[68] It is clear from the case authority that all of the requisite elements for duress must be present before the criminal conduct will be excused. In this case, there may be difficulties with a number of the requisite elements. However, it is not necessary for me to consider all of the elements because I find with respect to every scenario that I am satisfied beyond a reasonable doubt that P.C. had a safe means of escape. That is sufficient to negate the application of the defence in every instance.

[69] It is useful to first define what is meant by “safe avenue of escape” in the context of duress. Again, the Supreme Court decision in Ryan provides a helpful summary as follows (at para. 65):

This element of the common law defence was specifically addressed in Ruzic, at para. 61. Once again, the test, evaluated on a modified objective basis, is that of a reasonable person similarly situated:

The courts will take into consideration the particular circumstances where the accused found himself and his ability to perceive a reasonable alternative to committing a crime, with an awareness of his background and essential characteristics. The process involves a pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of a purely subjective and unverifiable excuse.

In other words, a reasonable person in the same situation as the accused and with the same personal characteristics and experience would conclude that there was no safe avenue of escape or legal alternative to committing the offence. If a reasonable person similarly situated would think that there was a safe avenue of escape, the requirement is not met and the acts of the accused cannot be excused using the defence of duress because they cannot be considered as morally involuntary.

[70] I start the analysis with P.C.’s action in assisting to get Jin Tao into the car. A safe means of escape refers to an obvious, safe means of escape, such as fleeing or seeking help. Generally speaking, if a person is able to resort to the protection of the law, he is required to do so. P.C. went into the bar with Allan. He had access to a cellphone while he was there. There were many people in the bar. He could have asked somebody for help. He could have warned Jin Tao not to leave. He could have stayed in the bar himself and summoned police. He may well have believed that he would incur Allan’s wrath if he did not assist. However, there was little Allan could do to him right there and then if he simply refused to assist. In short, there were many safe options available to P.C. by which he could avoid helping Allan to commit this crime. I recognize that P.C. was only 15 years old at the time and that his English was limited. Nevertheless, the avenues of escape were so clear and obvious that neither his youth nor his language difficulties can excuse his conduct. Likewise, although P.C. had previously been beaten by Allan, I do not see that as so undermining his freewill that he was unable to escape this particular situation. He chose the easy way out, which was to simply go along, even knowing that going along would involve criminal activity and harm to Jin Tao.

[71] The next issue is whether the conduct at the park can be excused because of duress. The opportunities to avoid retaliation by Allan were less obvious at the park, than at the bar earlier. It was late at night in a remote location and P.C. did not have a car. However, in my view, it was still possible for P.C. to have summoned help (he had a cellphone) or to have run away (particularly after the driver left with the car to pick up Zhong Zheng). He did not make any attempt to do so, nor did he raise any question with the other participants as to whether they should object to what was going on. Allan was clearly the ringleader. However, he was greatly out-numbered by the others, all of whom claim to have simply been acting under his orders. Although P.C. was only 15, he was strong and bigger than the others. Again, I am satisfied beyond a reasonable doubt that there was a safe avenue of escape (albeit not as easy a one as in the previous scenario).

[72] Obviously, while P.C. was in the trunk of the car on the way to Allan’s house, he was not in any position to extricate himself from the situation. It would also have been difficult to do so while carrying Jin Tao into the house. However, after leaving Jin Tao in Allan’s control, P.C. simply left. He went to the safety of his own home, he went to bed, and he went on with his everyday life. As he was doing that, Jin Tao was bleeding to death. P.C. testified that even then he was acting under a threat from Allan that he would be killed if he notified the police. No reasonable person, even a frightened 15 year old in this same situation, would conclude that he had no lawful way to avoid such a threat. He could have called the police, but chose not to do so. Indeed, even an anonymous call to the police could have saved Jin Tao’s life. P.C. again chose the easy way out. He chose to do what Allan told him because it was easy, without any regard for the crime that was being committed and the obvious danger to Jin Tao. Such conduct cannot be excused.

Conclusions as to P.C.’s Degree of Responsibility

[73] Accordingly, I have concluded that P.C. is guilty of manslaughter: (1) by assisting in getting Jin Tao into the car; (2) by preventing Jin Tao’s escape at the park, thereby assisting in the assault; and, (3) by delivering Jin Tao against his will into the clutches of Allan, thereby preventing him from obtaining the medical treatment he required and resulting in his death. I further find that he could have safely avoided any of these criminal actions and that his conduct cannot be excused under the common law defence of duress.

[74] P.C. was by no means the ringleader in this criminal endeavor. It is clear he was afraid of Allan, had been bullied by Allan in the past, and was prepared to do as Allan directed in order to avoid further harm to himself. However, he willingly associated himself with this group, including with Allan, knowing of Allan’s proclivities. He was a follower, not an instigator, but he was nevertheless responsible for the ultimate outcome.

D. CIRCUMSTANCES OF THE OFFENDER

[75] P.C. was born in China in 1994. He and his two older sisters lived with their parents in China until their parents divorced, which was when P.C. was about 10 years old. After the divorce, P.C. spent half his time with his mother and half with his father. In 2005, P.C.’s father married a Canadian woman and she sponsored him to come to Canada along with P.C. and one of his sisters. The second sister followed a short while later. Initially, P.C. and his sisters lived with their father and stepmother, but the two girls later moved to their own apartment, where they resided at the time of this offence. The marriage between P.C.’s father and his second wife ended after four years and he remained single. At the time of the offence, P.C. was living with his father in Toronto.

[76] P.C. arrived in Canada in 2006, when he was 12 years old. He attended school from that time, including taking English as a Second Language from Grade 7 on. However, even at the time of trial in 2012, his English language skills were poor. He reported doing better in Math and Science at school, but struggled with reading and writing in English. His report card indicates absenteeism, a lack of interest in school, and a failure to complete assignments.

[77] P.C.’s mother continues to reside in China. She owns and runs a grocery store there. P.C. has had little contact with her, except that he returned to China in 2008 and stayed with her for a period of six months.

[78] P.C.’s father has been employed in Canada at an Asian supermarket in Toronto. He works six days a week, from 9:00 am to 9:00 pm. In the summer of 2008, P.C. worked with his father at the Asian supermarket. After returning to school in September 2008, he continued to work at the supermarket on weekends, putting in 12-hour shifts every Saturday and Sunday, essentially doing manual labour moving boxes of vegetables and stocking shelves. According to P.C.’s testimony at trial, in November 2010 P.C.’s father took him out of school and he then started working full-time at the supermarket, six days a week for 12 hours a day. According to Ms Sandrine Ndahibeshe, who prepared the pre-sentence report, P.C. and his father both reported that P.C. was only working full-time with his father because of the strictness of his bail conditions and the difficulty his father would have supervising him unless they were working together. It is possible that Ms Ndahibeshe was simply confused about this, as opposed to both P.C. and his father having lied to her about it. However, based on the evidence at trial, I find that P.C. quit school in November 2009, months before this offence was committed.

[79] As of the date of the sentencing hearing, P.C. had three Grade 9 credits and one Grade 10 credit. Since his conviction in November, 2012 he has been in custody at the Roy McMurtry Youth Centre (“RMYC”) and has been working on courses at the Grade 10 level. He told Ms Ndahibeshe that he would like to continue his education and possibly attend college or university.

[80] In order to assist me in sentencing, and with the consent of both the prosecution and defence, I requested an assessment under s. 34 of the YCJA. The assessment was conducted by psychiatrist Dr. Joe Beitchman, the Head of Adolescent Service at the Centre for Addiction and Mental Health (“CAMH”). It was after receipt of Dr. Beitchman’s report, dated November 29, 2012, that the Crown decided not to seek an adult sentence for P.C., accepting the report’s recommendation that he should be sentenced as a young person under the YCJA.

[81] P.C. does not appear to have any definite career goals, perhaps not all that unusual for an 18-year-old. He told both Ms Ndahibeshe and Dr. Beitchman that he hoped to go to college or university, but had no plans beyond that. His poor English skills will be an obstacle to further advancement, even at the high school level.

[82] Dr. Beitchman described P.C. as a “timid, inhibited youth” who “if sentenced as an adult is likely to be victimized.” He expressed concerns, which I share, that he would be at risk of being bullied and exploited by older experienced inmates if placed in an adult prison population.

[83] Among the psychological tests administered to P.C. as part of this assessment was the Paulhus Deception Scales (“PDS”), which included two subscales: Self Deceptive Enhancement (SDE – the tendency to give honest but inflated self descriptions) and Impression Management (IM – the tendency to give inflated self-descriptions to an audience). Dr. Beitchman explained that the SDE and IM are useful in identifying individuals who have distorted their responses to meet socially accepted norms. P.C.’s scores on both instruments were elevated “in the clinical range.” Dr. Beitchman therefore cautioned that P.C.’s responses on other tests “may not be an entirely accurate representation of his current thoughts and behaviours.”

[84] For the most part, P.C. scored in the normal range on all of the psychological tests. In particular, he had a normal score for a male youth between the ages of 11 and 18 on the Externalizing Problem Scale, indicating that he was less likely to exhibit aggressive, inattentive and disruptive behaviours. On the other hand, his score on the Internalizing Problem Scale was clinically elevated, indicating a tendency towards withdrawal, depressive affect, anxiety, and inhibited behavior. Dr. Beitchman concluded that P.C. is at a “very low risk to reoffend.”

[85] I find the scores on the Externalizing and Internalizing Problems scales to be consistent with P.C.’s overall character and behavior to date. He is not overtly aggressive himself, has never been in trouble with the police, and was never identified as being a behaviour problem at home or at school. I accept that he is more likely to internalize his problems. However, the levels of anxiety and depression noted by Dr. Beitchman and Ms Ndahibeshe were connected to P.C.’s concerns about this trial, his conviction, and the potential this could have on his immigration status. These are considerable stressors and the levels of unhappiness and anxiety currently exhibited by P.C. would appear to be situational, as opposed to ingrained personality traits, as noted by Dr. Beitchman. Nevertheless, I agree with Dr. Beitchman’s recommendation that this emotional state should be monitored and addressed if it persists or worsens.

[86] P.C.’s elevated scores on the PDS subscales must be taken into account when interpreting his score on the Pride in Delinquency scale. Dr. Beitchman reported that P.C. scored in the low range (the 10th percentile) on this test, which measures how proud or ashamed a young person would feel about committing certain antisocial acts. He said that P.C. indicated that he felt “ashamed or very ashamed” to commit acts such as armed robbery, sexual assault, or “seeing a store robbed and not calling police.” I challenge the reliability, in particular, of P.C. feeling “very ashamed” if he saw a store being robbed and did not call police. In this case, he saw a person being savagely assaulted and did not call police, and yet he appears to feel no shame whatsoever with respect to his behavior.

[87] When interviewed by Ms Ndahibeshe and by Dr. Beitchman and in his evidence at trial, P.C. continues to maintain he has done nothing at all wrong and accepts no responsibility for Jin Tao’s death. The pre-sentence report indicates that P.C. expressed “remorse and disappointment in himself for getting involved with his co-accused.” However, he continued to maintain that “he had no other choice” than to do what he did because he was “being bullied.” Dr. Beitchman noted that P.C. “feels he should not have been found guilty as he feels he didn’t really do anything” and that he “was used by these other boys and, consequently, that’s how he ended up having been found guilty.” At another point, P.C. indicated that thinking about Jin Tao “makes him very unhappy” because he was a friend, but nevertheless maintained that the guilty verdict is “very unfair.”

E. THE APPROPRIATE SENTENCE FOR THIS CASE

The Position of the Parties

[88] The Crown submits that I should impose the maximum sentence of three years. The Crown argues that this is appropriate in light of the aggravating factors, and that the mitigating factors were already taken into account in the decision to proceed with the sentencing under the YCJA rather than seeking to have P.C. sentenced as an adult.

[89] The defence submits that P.C. should be sentenced to time served plus two years probation. As of March 1, 2012, the time served is 250 days. The defence also seeks some credit for the 28 months P.C. spent under house arrest, after his release on bail and up to the date of his conviction on September 27, 2012, when I revoked his bail.

Aggravating and Mitigating Factors

[90] There is really only one aggravating factor, but it is a profound one – the manner in which Jin Tao met his death. He was only 20 years old. His last few hours of life were spent in agony and humiliation. The attack upon him was senseless, unprovoked, savage, and degrading. He died alone – betrayed by his friends. This has compounded the intense grief and sense of loss endured by the members of his family, as is all too apparent from their victim impact statements.

[91] I have discussed already the role that P.C. played in the events leading up to Jin Tao’s death. I accept that he felt threatened and was fearful of Allan, who was clearly the ringleader. However, he had numerous opportunities to either intervene or to escape and contact the police, none of which he even attempted to do. While P.C.’s more limited role and the intimidation by Allan are mitigating in their impact, they do not eradicate his responsibility for this crime.

[92] The other mitigating factors include P.C.’s age, particularly his age in relation to the other participants. He has no prior criminal record. He was on a strict form of bail for a considerable period of time, with no breaches. He enjoys support from his family including: his father, with whom he has resided and who supervised him during bail; his two sisters; and his mother, who resides in China but has travelled to Canada to help her son in this crisis.

The Protection of the Public

[93] One of the ultimate goals of sentencing is the long term protection of the public. The best way to protect the public is to ensure that P.C. never engages in this type of behavior again. To achieve that goal it is important to understand the circumstances underlying his offending behavior and consider how to prevent such conduct from happening again.

[94] Dr. Beichman expressed the opinion that P.C. is at a very low risk to re-offend. I accept that opinion, but not without some reservations that do have an impact on sentencing. First, Dr. Beichman’s opinion is based at least in part on self-reports from P.C., which there is reason to believe are less than completely accurate. Second, he appears to accept completely that P.C. was a mere follower who acted only under threat of violence. It is not clear to me that P.C. is as shy or unassertive as he is presenting himself to be. I note, for example, that at the time in question he was no longer in school, had a full-time job, was hanging out on a regular basis with a group of friends who were two to three years older than him, and had a girlfriend who was three or four years older than he was.

[95] That said, it is clear that P.C. was not the instigator of the violence in this case, and I have no reason to believe that he is the type of person who would be the instigator of violence in the future. The problem is with his willingness to be a follower. This makes him vulnerable to going along with criminal activity as part of a gang or group, rationalizing his own conduct as not blameworthy because the gang will punish him if he is not compliant. Not only is this not acceptable, it is dangerous to the community at large. It is important that P.C. understand this both for his own rehabilitation, and for the protection of the community.

[96] It is deeply troubling to me that P.C. seems to lack any sense of responsibility for his role in what happened to Jin Tao. Because he went along with Allan and did what he was told, Jin Tao is dead. Although he does seem at least to be “unhappy” that Jin Tao died, he does not seem to understand that this had anything at all to do with him. Instead, he seeks to place all of the blame on others and to excuse his own conduct as having been coerced by physical threats. Quite apart from his fear, and even if he felt paralyzed by that fear from doing anything, I would have hoped to see more genuine remorse for his own failure to take action to save his friend’s life, even if only by an anonymous call to the police.

[97] I have no confidence that P.C. will develop the necessary insight into his conduct if merely placed on probation at this stage. According to Dr. Beitchman’s report, P.C. was genuinely perplexed that he could be found guilty in these circumstances. It is also apparent that P.C.’s father, and likely other advisers, have been telling him he did nothing wrong. This is not the message he should be receiving. He needs to learn that he is accountable for his conduct and the consequences of that conduct should be meaningful to him. Returning P.C. to his father’s home for another two years of probation will do nothing to achieve those ends. No meaningful plan was put forward to support such a proposition. The plan appears to be to continue as before, which did not work well for this young man in the past.

[98] I am therefore of the view that a period of custody is required to instill these values in P.C., and hopefully to guide him to some understanding of his own conduct and some sense of responsibility for what he has done.

Rehabilitation and Reintegration

[99] My primary goal in this sentencing is to craft a sentence that best ensures P.C.’s rehabilitation and his reintegration into society.

[100] I have already mentioned P.C.’s lack of insight into his own conduct and his belief that he did nothing wrong in acting as he did. Overcoming that attitude will be critical to rehabilitating this young offender.

[101] I would also hope that P.C. can participate in some kind of programming to address his apparent lack of empathy for the victim in this case. I am unsure if he truly lacks empathy generally, or if he has simply convinced himself that he is blameless in this situation. The latter is less concerning in terms of overall rehabilitation, but both possibilities need to be addressed.

[102] It is troubling that P.C. has been in Toronto and in our public school system since he was 12 years old and still has such little command of the English language. Part of the problem may have been his failure to apply himself. However, I believe another problem has been that his education has been allowed to lag as not being a priority, which is another reason that simply placing him back with his father will do nothing to rehabilitate him. P.C. needs to develop the skills that will allow him to be independent and self-assertive. Mastering English will go a long way to improving his future job prospects and any other career goals he may develop. Certainly if college or university is to be in his future at all, his education must be an important priority at this stage.

Length of Sentence

[103] As noted, the maximum sentence is three years. Great care must be exercised in considering the appropriate sentence for a young person as compared to adult sentences for the same offence. For the most part, such a comparison would be completely inappropriate. However, there is some limited relevance to the sentences imposed on the other individuals involved in the very same criminal act as the young person.

[104] In this case, Allan (the ringleader) pleaded guilty to second degree murder and received a life sentence with no eligibility for parole for 10 years. His circumstances are completely unlike those of P.C. and no comparison can be made.

[105] Zhong Zheng (who was 18 at the time of the offence) pleaded guilty to aggravated assault and was sentenced to one year plus probation. He only came to the scene of the beating towards the very end. He did participate at that stage and was with the others when Jin Tao was taken to Allan’s house. However, he was convicted only of aggravated assault, such that he was not deemed to have any responsibility for Jin Tao’s death, an important distinguishing factor.

[106] The other two offenders, Peng Ren and Zhao Hui Chen, were involved in much the same manner as P.C. was. They were older than P.C. (18 or 19 years old) and it does not appear that they had previously been victimized by Allan as P.C. had been. Both pleaded guilty to manslaughter and the agreed facts upon which they were sentenced are essentially the same as the findings I have made with respect to P.C.’s involvement. Nordheimer J. sentenced both Peng Ren and Zhong Zheng to the equivalent of 5 years in prison, plus 3 years probation (the prison component being based on 14 months in addition to 23 months time served credited on a 2:1 basis). Although these are adult sentences, it must also be recognized that they were imposed after both individuals pleaded guilty, demonstrating remorse and an acceptance of responsibility. Both will likely be deported following their sentences.

[107] Manslaughter is a difficult crime in which to draw comparisons for purposes of sentencing because of the vast differences in the manner in which it can be committed, ranging from near murder to something merely beyond negligence. The defence did not refer me to any equivalent cases. However, two of the cases relied upon by the Crown provide some assistance.

[108] In R. v. D.S.[^17] the Court of Appeal varied the sentence imposed on a 16 year old young person for aggravated assault, only because the combination of sentence imposed for that and the probation order for another offence exceeded the maximum possible sentence. The Court reduced the sentence to the equivalent of the three year maximum. The offender in that case was an aboriginal with a difficult childhood. He was present when another young person was beaten to death by a group of young people. D.S. ran along with the group as they pursued the victim on foot, but without even knowing what was going on. When he reached the scene of the actual beating, he merely watched from a close proximity. He did not deliver any blows to the victim himself, but admitted that he wanted to do so and indeed would have done if the victim had not already been unconscious by the time he had a chance. The victim was severely injured, including permanent serious brain damage. D.S. was on probation for an unrelated matter at the time. He pleaded guilty to aggravated assault, as well as to the breach of the probation order. The portion of the sentence allocated to the aggravated assault was 24 months. This was a less serious offence, and the offender was less involved in the injuries sustained by the victim than was P.C. in the assault on Jin Tao and its aftermath. The whole incident covered a short period of time, as opposed to the hours involved in P.C.’s crime. Also, D.S. pleaded guilty, showing remorse, which is a mitigating factor absent in the case before me.

[109] The circumstances of the offence involved in R. v. S.Q.F.[^18] are even more similar to the case before me. In that case, the offender (who was 15 years old) assisted two other individuals in kicking and beating another young person. After the assault, the victim’s clothes were removed and he was abandoned in a hallway to die, while his assailants went off to a party. S.Q.F. was involved to a lesser degree in the assault than the other two accused, having only kicked the victim on the legs. He had no real reason to be involved, other than to assist his friend who was jealous because of the victim’s involvement with his former girlfriend. S.Q.F. pleaded guilty to manslaughter. His only prior record was a conviction for joy-riding. Keyser J. imposed a two-year custody and supervision sentence. In reaching that determination, she took into account that S.Q,F. had apologized to the family of the victim and that she accepted his apology was “sincere and heartfelt.” The sentencing judge also noted that S.Q.F. was genuinely shocked to learn that the victim had died, had broken down and cried when he heard that news, and had subsequently said that his actions would “haunt him forever.” These are mitigating factors not present in the case before me.

[110] Obviously, no two cases are ever exactly the same. Nevertheless, these precedents do provide some general guidance on the kind of sentence that would be appropriate for P.C.

[111] Taking all of these factors into account, and in particular the aggravating factors in this case and the rehabilitative needs of P.C., in my view the appropriate sentence for this offence and this offender is 2 ½ years.

Calculation of the Sentence

[112] It is important, in my view, and consistent with the YCJA, that a portion of the sentence be served under supervision in the community, to ease P.C. back into society while assisting his reintegration. In most instances, the division between custody and community supervision is mandatory, with 2/3 of the sentence being in custody and the remaining 1/3 under supervision. However, with respect to the case before me, because it involves manslaughter, I must direct what portion of the sentence will be in custody and what will be pursuant to supervision only.

[113] P.C. will be 20 years old in August, 2014. At that point, if the custodial portion of his sentence is not complete, he would be transferred to an adult prison. That is an outcome that is counter-productive to the fundamental goal of rehabilitation and reintegration. I would therefore seek to avoid such an outcome, if it is possible to do so while still imposing a fit sentence that appropriately considers all of the goals of sentencing including accountability and meaningful consequences for the offender.

[114] As of March 1, 2012, P.C. will have served 250 days in custody at the RMYC. There are two different periods of incarceration in this case. First, there is the time that P.C. spent in custody before he was granted bail, which is a period of 94 days. P.C. was convicted by a jury on September 12, 2012. At that time I revoked his bail. There was some delay in proceeding with the sentencing because of the need to obtain assessments and the Crown’s deliberations as to whether to proceed with sentencing under the YCJA, rather than as an adult offender. The sentencing hearing began on December 5, 2012, but did not conclude on that day because I was not satisfied that I had adequate information. The sentencing hearing was therefore not completed until January 22, 2013, and the actual sentence is being imposed on March 1, 2013. During this second period (156 days), P.C. has been in custody at the RMYC, receiving programming, and pursuing his education.

[115] Defence counsel submits that all of the time spent in custody prior to the imposition of sentence should be credited on a ratio of 1:5 to 1. I agree that this appropriate for the first 94 day period (a credit of 141 days). The second period must be credited at least on a 1:1 basis, but I do not agree that I must apply a 1.5:1 ratio, for reasons I will develop shortly.

[116] Defence counsel also seeks a substantial credit for the time P.C. spent on bail. I do not consider that to be appropriate. Under the terms of his bail, P.C. was permitted to work and to be out of his house if in the custody of his father. During his bail period, he worked at the supermarket where he had worked before, six days a week for 12 hours a day. Essentially, his bail amounted to a curfew after work, and a house arrest for one day of the week (unless outside with his father). This was not in substance much different from his routine prior to the offence.

[117] It is customary to credit time served by a young person prior to sentencing at a ratio of 1.5 to 1. The leading case on the norm of applying a 1:5 to 1 credit for time served is the Court of Appeal decision R. v. B.T.,[^19] which involved a situation where the automatic two thirds custody/one-third supervision rule applied. In that case, Lang J.A. noted that historically, and absent unusual circumstances, adult offenders would receive a 2:1 credit for time served, whereas young offenders would receive only a straight credit of 1:1 for time served. The rationale for the enhanced credit for adult offenders was that pre-trial custody was served in harsher circumstances and was not included in the calculation for earned remission. Lang J.A. held that the first consideration (harsher conditions) did not apply to young people held in custody. Historically, earned remission did not apply either. However, with the introduction of the two-thirds/one-third regime in youth sentencing, young offenders would lose the advantage of additional time on supervision, unless the time already served received an enhanced credit. Lang J.A. held as follows (at paras. 39-40:

On the other hand historically, and absent unusual circumstances, young offenders received a credit only for time served. This was, in part, because young persons were not entitled to statutory remission and because young persons did not suffer the harsh conditions suffered by adults in detention centres.

However, under the YCJA, youth sentences are now comprised of two-thirds custody and one-third community supervision. Thus, young persons are now in a similar position to adult offenders in that time in pre-sentence custody delays their eligibility for community supervision. For example, a youth sentenced to nine months would serve six of those months in custody, the same amount of time served by Thomas B. in this case. It is for this reason that, under the YCJA, trial judges have credited a youth with 1.5 days for every day spent in pre-sentence custody. On a 1.5-for-one basis, the appellant would receive credit for nine months of pre-sentence custody.

[emphasis added]

[118] The Court of Appeal recognized in T.B. that the sentencing judge still retains a discretion as to the extent of the credit to be given beyond the straight 1:1 calculation, holding at para 42:

Thus, while a 1.5 credit may be the starting point for crediting pre-sentence custody, other considerations may affect the appropriate credit. Such factors may include the conditions of the youth’s pre-sentence custody, the reasons for that detention, the length of the detention, the reasons for any delay in reaching trial or sentencing, and the youth’s need for further custody or community service to meet the purposes of the YCJA.

[119] The 1:5 to 1 formula is less relevant in a situation where the sentencing judge herself sets the proportion of time to be spent in custody and the time to be spent on supervision. I consider it vital for P.C.’s reintegration into the community that he spend an appropriate portion of his total sentence time under supervision in the community as opposed to in custody. However, I can take that into account in the actual calculation of time in custody versus time under supervision, rather than applying the multiplier rigidly as a deduction. Provided I credit this time completely, and provided I divide the remaining time to be served in an appropriate manner to reflect on an overall basis a proper division between custody and supervision, I am not obliged to rigidly stick to the 1.5 to1 formula, particularly when to do so would not result in a sentence that adequately meets the goals of sentencing.

[120] I consider it important for P.C.’s proper rehabilitation that he serve sufficient time in custody to deal with his attitude issues and to complete as many education credits as possible. I also believe that he needs the structure and supervision, as well as the services, that are better available in a closed facility, particularly at this beginning phase. Certainly at this time, I do not feel that the goals of sentencing can be met in an open custody setting.

[121] My starting point is that, in order to reflect the aggravating factors in this case and to meet the rehabilitative needs of P.C., the appropriate sentence is 2 ½ years (913 days). This must be divided appropriately between custody and supervision, after a credit for time served. If that sentence had been imposed on the date P.C. was convicted, I would have first credited him with 141 days for the time served prior to bail (94 days at a ratio of 1.5:1), leaving the time remaining to be served at 772 days. Since 2 years is approximately 730 days, I would then reduce the 772 days to 2 years to reflect some credit for the time spent on bail. I would then have divided that time on a roughly two-thirds/one third basis, such that 16 months would be spent in custody and 8 months under supervision in the community. In my view, that remains the minimum time necessary to meet the goals of sentencing. Further, the custodial time will have been served before P.C. is 20 years old, which satisfies my concern about any automatic transfer to an adult institution.

[122] P.C. has served 156 days in custody since the date of his conviction. There is no reason to credit that time on an enhanced basis, provided I allow for an appropriate period of time to be spent under supervision, rather than in custody. The only purpose of the enhanced credit is to allow for earned remission. Because I can stipulate the portion of the sentence to be spent under supervision, an additional credit for the time served since conviction serves no purpose. The total time in custody will simply flow through on a continuous basis from September 2012 until the completion of the custodial portion of the sentence I impose.

[123] Therefore, I will impose the 8 months supervision order, which I consider to the appropriate time to provide a transition from custody into living in the community, based on a continuous time in custody of 16 months. I will then deduct the time served since conviction from the 16 month custodial portion of the sentence. The time served since the date of conviction is just under 6 months and I will round it up to 6 months, thereby allowing some additional credit. That leaves a sentence remaining to be served of 10 months in closed custody and 8 months under supervision.

[124] During the period under supervision, as well as in custody, it is critical that P.C. continue his schooling and his study of English as a Second Language. I would also recommend counseling to address issues involving empathy and independence. I am directing that a copy of the presentence report and the CAMH report be provided to the institution in which P.C. will be serving his custodial sentence (which I presume to be RMYC) and to any probation officer supervising his progress. P.C. is directed to execute any required releases for probation officers or other such supervisors to monitor his progress in any programs he is engaged in during the custodial and supervision periods of his sentence.

[125] There will also be a DNA Order, an order under s. 51(1) of the YCJA (weapons prohibition) for a period of 5 years, and a non-contact order with respect to the victim’s family and the co-accused.

MOLLOY J.

Released: March 1, 2013

COURT FILE NO.: YC 11-10000007-0000

DATE: 20130301

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Applicant

– and –

P.C. Defendant

REASONS FOR SENTENCE

MOLLOY J.

Released: March 1, 2013

[^1]: Youth Criminal Justice Act, SC 2002 c.1 [^2]: YCJA s. 42(2)(o) [^3]: YCJA, s.50 [^4]: R. v. B.W.P., [2006] 1 S.C.R. 941, 2006 SCC 27. [^5]: R. v. Ferguson, [2008] 1 S.C.R. 96, 2008 SCC 6. [^6]: Ibid, para. 26 [^7]: Ibid, para 23 [^8]: Ibid, para. 18 [^9]: Ibid, para. 17; R. v. Brown, 1991 CanLII 73 (SCC), [1991], 2 S.C.R. 518 at p. 523 [^10]: Ferguson, para. 18 [^11]: Ibid, para. 22; R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652. [^12]: Ibid, para 18 [^13]: Ibid, para. 18; R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368. [^14]: At the time of trial, P.C. was approximately 6’2” and weighed over 210 pounds, but he would have been smaller than that 2 ½ years earlier at the time of the offence. [^15]: R. v. P.C., 2012 ONSC 5362 [^16]: R. v. Ryan, 2013 SCC 3 [^17]: R. v. D.S., 2008 ONCA 369, 239 C.C.C. (3d) 426, 93 O.R. (3d) 211 [^18]: R. v. S.Q.F., 2008 MBQB 119, 229 Man.R. 215 [^19]: R. v. B.T. (2006), 2006 CanLII 4487 (ON CA), 78 O.R. (3d 721, 206 C.C.C. (3d) 405 (C.A.).