W A R N I N G

The court hearing this matter directs that the following notice should 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. – (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. – (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 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. – (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) … or section 129 (no subsequent disclosure) …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.

CITATION: R. v. L.(H.), 2013 ONSC 7050

COURT FILE NO.: 433/12

DATE: 20131115

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

H.L. (A YOUNG PERSON)

Rob Levan, for the Crown

Brian Kolman, for the accused

HEARD: August 14, 2013

K.L. Campbell J.:

Reasons for Sentence

A. Overview

[1] At the conclusion of his trial, the accused, H.L., was found guilty of nine criminal offences flowing from an incident that took place in Toronto on October 18, 2011. More particularly, the accused was found guilty of the offences of armed robbery, pointing a firearm, aggravated assault, careless use of a firearm, possession of a weapon for the purpose of committing an indictable offence, possession of a firearm while not the holder of an authorization, licence, or registration certificate, possession of a firearm while prohibited by court order, possession of a firearm while not the holder of a licence, and failing to comply with the condition of a probation order. See: R. v. L.(H.), 2013 ONSC 2924.

[2] These offences all flow, essentially, from the robbery of a 22-year-old complainant and part-time illicit drug trafficker, J.L.L. As a result of an on-going dispute over the quantity of marihuana that the complainant was providing, the accused robbed the complainant, at gun-point, of a large quantity of marihuana. When the two young men met for purposes of yet another drug transaction, the accused seized the opportunity to simply take the drugs from the complainant, with the assistance of his handgun, without paying for them. As the accused was starting to leave the scene of the robbery, a third person, 20-year-old D.D., a friend of the accused, arrived and decided to try to rob the complainant of his cell phone. The accused loaned him his handgun for this purpose, and then physically aided him in this armed robbery attempt. The complainant physically resisted, however, and, during the course of the ensuing fight between D.D. and J.L.L., the firearm in D.D.’s possession accidentally discharged, sending a bullet through the complainant’s neck. Miraculously, the bullet caused no irreparable injury. The complainant did not even realize he had been shot and, after the accused and D.D. fled from the scene, the complainant drove himself home. In the end, following timely surgical repairs, the complainant was left with just a small scar on his neck.

[3] H.L. is a “young person” as defined in the Youth Criminal Justice Act, S.C. 2002, chap. 1. He was just a month short of his 18th birthday at the time of the commission of these offences. He appears today for sentencing. Significantly, the accused has been in custody, at the Roy McMurtry Youth Centre, since his arrest at the time of these offences. Accordingly, he has already served a total of approximately two years and one month in pre-sentence custody.

[4] The Crown has brought an application, pursuant to ss. 64, 71 and 72 of the Youth Criminal Justice Act, seeking the imposition of an adult sentence upon the accused. The Crown argues that any youth sentence would not be sufficient to hold the accused properly accountable for his crimes. More specifically, the Crown seeks the imposition of a global adult sentence in the range of eight years imprisonment. The Crown concedes that the accused should be given credit for his pre-sentence custody, but contends that this credit should be limited to the usual “one for one” credit ratio prescribed by s. 719(3) of the Criminal Code. Accordingly, taking that pre-sentence custody into account, the Crown now seeks the imposition of a penitentiary term of close to six years imprisonment.

[5] The accused argues that the Crown has failed to justify the imposition of an adult sentence, and suggests that he should receive a youth sentence. In this regard, defence counsel contends that such a sentence could be of sufficient length to hold the accused fully accountable for his crimes as he can still be given a three year custody and supervision order, notwithstanding his pre-sentence custody, as I can and should give him no credit whatsoever for that pre-sentence custody.

[6] In the alternative, the accused argues that if an adult sentence must be imposed, he should receive the minimum possible adult sentence, and enhanced credit (of one and one-half days for each day spent in custody) for his pre-sentence custody under s. 719(3.1) of the Criminal Code. The parties are essentially agreed that the applicable mandatory minimum sentence, if the accused were sentenced as an adult, is five years imprisonment, for the crime of armed robbery, pursuant to s. 344(1)(a)(i) of the Criminal Code. The accused has not challenged the constitutional validity of the potential operation of this mandatory minimum term of imprisonment. The accused argues, however, that after he is properly given more than three years credit for his pre-sentence custody, he would then be eligible for a lengthy reformatory term of imprisonment by way of an adult sentence.

B. The Rule Against Multiple Convictions

[7] Before turning to an analysis of the sentencing issues in this case, I must resolve the issue of what offences the accused may properly be convicted of having committed. While the accused has been found guilty of nine criminal offences, the rule against multiple convictions for the same delict prevents him from being convicted of a number of these offences.

[8] The parties are agreed that convictions should be entered in relation to the offences of: (1) armed robbery; (2) aggravated assault; (3) possession of a firearm while not the holder of an authorization, licence, or registration certificate; (4) possession of a firearm while prohibited by court order; and (5) failing to comply with the condition of a probation order. The parties agree that the application of the principle enunciated in R. v. Kienapple, [1975] 1 S.C.R. 729, prevents the conviction of the accused for any of the other offences.

[9] I agree with the position jointly advanced by the parties. Accordingly, the accused is convicted of the five offences specifically mentioned, and the findings of guilt against the accused with respect to the four additional offences will be conditionally stayed. See: R. v. Rocheleau, 2013 ONCA 679, at paras. 24-33.

C. Youth Sentence or Adult Sentence?

1. Introduction – The Governing Legal Test

[10] According to s. 64(1) of the Youth Criminal Justice Act, the Attorney General may, in certain circumstances, make an application to the youth justice court for an order that a young person be liable to the imposition of an adult sentence. The circumstances in this case permitted the Attorney General to make such an application. At the hearing held pursuant to s. 71 of the Youth Criminal Justice Act, the parties and the parents of the accused were given an opportunity to be heard.

[11] The parties agree that the legislative criteria that govern the question of whether the accused should be liable to the imposition of an adult sentence are those outlined in s. 72 of the Youth Criminal Justice Act, as it read prior to relatively recent legislative amendments. See: Safe Streets and Communities Act, S.C. 2012, chap. 1, ss. 182-183, 195 (in force October 23, 2012). More particularly, the parties agree that I must apply the following legal criteria:

(1) The Relevant Factors: In determining the Crown’s application, I must consider “the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person,” in addition to any other relevant factors.

(2) Sufficient to Hold the Accused Accountable: After considering all of these relevant factors, I must determine whether a youth sentence, imposed in accordance with the purpose and principles set out in ss. 3(1)(b)(ii) and 38 of the Youth Criminal Justice Act, “would have sufficient length to hold the young person accountable for his or her offending behavior.”

(3) Onus on the Crown: If I reach the conclusion that a youth sentence would be of sufficient length to hold the accused accountable for his or her offending behavior, then a youth sentence must be imposed. On the other hand, if I reach the conclusion that a youth sentence would not be of sufficient length to hold the accused accountable for his or her offending behavior, then an adult sentence must be imposed. The Crown bears the onus on the application, and must satisfy me that an adult sentence is required in all of the circumstances of the case. Otherwise a youth sentence will be imposed.

[12] It is important to recall that in R. v. B.(D.), 2008 SCC 25, [2008] 2 S.C.R. 3, the Supreme Court of Canada held that young persons, by virtue of their age, are presumed to be less morally blameworthy and culpable than adults as a result of their heightened vulnerability, lessened maturity and reduced capacity for moral judgment. Indeed, the Supreme Court held that this presumption of diminished moral culpability in young people was what justified the entire youth sentencing scheme and its unique approach to punishment, and was a principle of fundamental justice constitutionally protected by s. 7 of the Charter of Rights. The Supreme Court made it clear, however, that this presumption did not prevent the imposition of an adult sentence on young offenders, but rather only required that, before such an adult sentence was imposed, the Crown had to meet the burden of showing that the presumption of diminished moral culpability had been rebutted and that the young person was no longer entitled to its protection. This decision informs the nature of the onus cast upon the Crown in seeking the imposition of an adult sentence. See also: R. v. O.(A.), 2007 ONCA 144, (2007), 84 O.R. (3d) 561, at paras. 28-38.

2. The Relevant Factors

[13] According to s. 72(1) of the Youth Criminal Justice Act, in assessing the Crown’s application, I must consider the “seriousness and circumstances” of the offences committed by the accused. In my Reasons for Judgment at the conclusion of the trial, I outlined, in some detail, the factual circumstances of the offences committed by the accused. See: R. v. L.(H.), at paras. 2, 5-24, 28-31. The following key factual points will serve to adequately illustrate the gravity of the crimes committed by the accused:

• The Background to the Offences: The accused came to ultimately commit these criminal offences through his participation in the illicit drug trade. More specifically, his dispute with the complainant, which appears to have served as his motivation for the commission in these offences, surrounded an ongoing argument with the complainant over the quantity of illegal drugs the complainant was providing to the accused. Needless to say, the young accused ought not to have been purchasing significant quantities of marihuana from anyone.

• The Armed Robbery of the Complainant: For their final meeting on October 18, 2011, the accused brought a loaded handgun to his drug transaction with the complainant. His only possible purpose in bringing this handgun to the meeting was to use it in his robbery of the complainant. Accordingly, his armed robbery of the complainant must have been planned. Indeed, once he was given the $800 worth of marihuana by the complainant, the accused employed his firearm to try to get more marihuana from the complainant, and to ensure that he would not have to pay for his “product.” At one point, the accused racked the gun, cocked the trigger, and pointed it at the complainant in an effort to convince him that he was serious. The accused had no business being in possession of a loaded firearm. His unlawful possession of the firearm was itself a very serious criminal offence. However, the accused did more than simply possess the firearm, he employed it to rob the complainant of his marihuana. There is no gainsaying the gravity of this criminal conduct by the accused.

• The Aggravated Assault on the Complainant: After the accused’s friend, D.D., arrived on the scene, and seemed interested in robbing the complainant of his cell phone, the accused passed D.D. his loaded handgun. Predictably, D.D. used this loaded firearm in his efforts to secure the complainant’s cell phone. Further, as D.D. physically struggled with the complainant in his car, the accused aided his friend by pulling the keys from the ignition of the complainant’s car and throwing them away to prevent his escape. It was during the ensuing fight between D.D. and the complainant outside the vehicle that the accused’s handgun, still in the possession of D.D., accidentally discharged, dangerously wounding the complainant in the neck. The accused was liable as a party to the crime of aggravated assault in relation to this wounding of the complainant by D.D., because the accused intentionally aided D.D. in his assault of the complainant, as D.D. was trying to rob the complainant of his cell phone, and the risk of bodily harm to the complainant in these circumstances was at least objectively forseeable. See: R. v. L.(H.), at paras. 69-72. This was also a very serious offence on the part of the accused.

• Victim Impact: Thankfully, the complainant miraculously survived his dangerous neck injury. In the end, apart from his hospitalization, and being set back a couple of weeks in his studies and missing some part-time work, the complainant permanently suffered only the scarring on his neck from the tracheostomy and the bullet wounds. The complainant was also made somewhat more cynical and paranoid about other people. But, this emotional impact is at least partly as a result of the complainant’s own continuing belief that his two assailants had intentionally tried to kill him – an allegation that I did not accept.

• Breach of Court Orders: In committing the firearms offences, the accused was also guilty of being in possession of a firearm while prohibited by court order from doing so, and failing to comply with a probation order. These court orders breached by the accused were imposed upon him just a few months prior to the commission of these offences.

[14] According to s. 72(1) of the Youth Criminal Justice Act, in assessing the Crown’s application, I must also consider “the age, maturity, character, background and previous record of the young person.”

[15] At the time of the commission of these offences, the accused was just one month shy of his 18th birthday. Accordingly, he was at the very upper end of the age range of individuals that may potentially fall within the statutory definition of “young person.” The accused is now nearly 20 years old.

[16] According to the Pre-Sentence Report, the accused was born in Jamaica and did not immigrate to Canada until 2006. He came to live with his parents – his father and step-mother. His biological mother remains in Jamaica.

[17] The accused stayed with his parents until 2011, when his relationship with his parents became troubled, and he went to live with his uncle. The accused felt that his parents were “too strict” with him. He was expected to help with household chores, clean his room, observe a curfew, and attend school and church. With his uncle, the accused experienced a greater degree of freedom and independence. The accused was residing with his uncle at the time of these offences. He was also influenced by a very negative peer group of friends. In hindsight, there is general agreement that the accused was not adequately supervised while living in an unstructured environment with his uncle. The accused now realizes that he ought to have remained at home with his parents. While now recognizing that his friends at the time were “devils,” the accused accepts responsibility for his own actions.

[18] The accused is not a first offender. In mid-July of 2011, just a few months before the commission of the present crimes, the accused was found guilty of robbery. The resulting youth court disposition was a 12 month term of probation (including 75 hours of community service). As outlined in the Pre-Sentence Report, the accused admits that he has something of a history of aggressive behavior. While in school, the accused was suspended on numerous occasions for fighting. He was also twice suspended for theft. The accused reports, however, that his arrest and detention for the present offences has been something of a “wake-up call” for him, and he has worked hard to make improvements to avoid future conflicts. He believes that he has become a more humble, respectful, and social person since his arrest, as he has learned from his past mistakes. His parents also report that they have seen a significant change in the accused.

[19] Since his arrest on the present charges, the accused has been detained at the Roy McMurtry Youth Centre. He receives regular weekend visits from his family and maintains daily telephone contact with his parents and his younger brother. He diligently completed his high school education in the Youth Center, graduating with his grade 12 diploma in mid-2012. By all accounts, the accused demonstrated a strong and dedicated commitment to the completion of his high school studies, and showed real leadership skills and was a good role model for other students. He received a number of awards reflecting this positive attitude and behavior. This program also involved the completion of 40 hours of community service. The accused also completed the 75 hours of community service that had been ordered as part of his probation order. The accused now spends part of his spare-time at the Roy McMurtry Youth Centre working on his College correspondence courses in an HVAC program (i.e. Heating, Ventilation and Air-Conditioning). The accused has also successfully completed a number of rehabilitative programs at the Youth Centre, and has benefitted from the counseling assistance of a psychometrist.

[20] As outlined in the Pre-Sentence Report, the accused now reports a more positive relationship with his parents due to the fact that he is “older and more mature.” He hopes to return to live with them upon his release from custody. The parents of the accused have, similarly, seen an improvement in their relationship with the accused, and would welcome his return home. They tend to view the accused as basically a good person, who made some “bad choices,” but who has “made a lot of positive changes since his arrest.”

[21] While the accused admits periodically using marihuana and alcohol, he does not believe that these are problematic areas for him. His parents report no concerns in this regard. The accused also admitted selling marihuana to others prior to his arrest in relation to these offences.

[22] According to the Pre-Sentence Report, the accused has the very positive influence of a long-term girlfriend, of some five or six years, who is attending a college program in nursing. She is well-liked by the accused’s family. The accused describes her as a “good person.” She and the accused seem loyal and committed to each other.

[23] The author of the Pre-Sentence Report, who saw the accused while confined in the Youth Centre, described the accused as “open, honest, mature” and “polite, insightful and engaging.”

[24] With respect to the present offences, the accused explained to the author of the Pre-Sentence Report that it was never his intention to harm the complainant, but acknowledging the injury to the complainant’s neck, the accused wanted to make a face-to-face apology and express his remorse. During one court appearance the accused took the opportunity to offer an apology which included all of the following:

• The accused indicated that his experience in being incarcerated in pre-sentence custody was probably the “most disgraceful experience” of his life. He expressed the realization that he has impacted many people in a “very negative way” and was “truly sorry” for his misconduct. He maintained, however, that he never intended to harm anyone.

• The accused expressed a determination to achieve his goals in life. More particularly, the accused indicated that he was striving to be a “more productive member of society,” and a “positive role model” for others. He has realized that education is the way to be successful, and that is why he is pushing himself to pursue his post-secondary education. He promised to continue with his education.

• The accused indicated that he had made “tremendous changes” in his life and would “continue to be a better person by giving back to the community.”

[25] In summary, the accused is now a relatively mature nearly 20-year-old repeat young offender. With a history of aggressive and anti-social behavior, including a prior conviction for robbery, the accused has committed a number of very serious criminal offences involving the illegal use of a loaded firearm and violence against a complainant, who sustained a serious physical injury to his neck. Since his arrest and detention, however, there has been a very significant and positive turn-around in the conduct of the accused. He appears to have made the most of his time in the Roy McMurtry Youth Centre and, with the loyal and ongoing support of his family and the helpful, structured environment in this youth facility, the accused has taken considerable rehabilitative strides.

[26] During the course of his sentencing submissions, the Crown argued that I ought to infer, from the behavior of the accused toward the end of his videotaped police interview, that the accused was not, in fact, remorseful for his criminal activity or its consequences to the complainant. I decline to draw any such negative inference against the accused. In my view, the impugned conduct of the accused was no more than a demonstrative reliance upon his constitutional right to remain silent.

3. Would a Youth Sentence Hold the Accused Accountable for His Offences?

[27] Having considered all of the relevant factual circumstances in this case, I am next obliged to determine whether a youth sentence, imposed in accordance with the purpose and principles set out in ss. 3(1)(b)(ii) and 38 of the Youth Criminal Justice Act, would have sufficient length to hold the accused accountable for his offending behavior.

[28] According to s. s. 3(1)(b)(ii) of the Youth Criminal Justice Act, as a matter of principle, “the criminal justice system for young persons must be separate from that of adults” and emphasize the “fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity.”

[29] According to s. 38(1), the purpose of youth sentencing is to “hold a young person accountable” for their offences “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.”

[30] The governing sentencing principles for youth sentences are outlined in s. 38(2) of the Youth Criminal Justice Act, which requires the youth justice court to impose such sentences in accordance with 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; and

(e) subject to paragraph (c), the sentence must: (i) be the least restrictive sentence that is capable of achieving the purpose set out in s. 38(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.

[31] As to the factors that must be considered by the court in the imposition of youth sentences, s. 38(3) of the Youth Criminal Justice Act provides that, in determining a youth sentence, the youth justice court shall take into account all of the following:

(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.

[32] In my view, a youth sentence imposed in accordance with the purpose and principles set out in ss. 3(1)(b)(ii) and 38 of the Youth Criminal Justice Act, would not have sufficient length to hold the accused accountable for his offending behavior. Such a sentence would not properly reflect the moral culpability of the accused, having regard to his intentional risk-taking conduct, the consequential harm his conduct caused, and the normative character of his criminal actions. See: R. v. O.(A.), 2007 ONCA 144, (2007), 84 O.R. (3d) 561, at para. 47. In other words, I am satisfied that the Crown has met its onus in establishing that only the imposition of an adult sentence would properly hold the accused accountable for his offending conduct. In so doing, I am also satisfied that the Crown has rebutted the legal presumption that the accused, by virtue of his age at the time of the offences, is less morally blameworthy and culpable than an adult as a result of his heightened vulnerability, lessened maturity and reduced capacity for moral judgment.

[33] In the circumstances of this case, the accused is clearly legally eligible for the imposition of a significant custodial term. Indeed, having committed a “serious violent offence,” having failed to comply with a previous non-custodial disposition, having committed indictable offences where the imposition of a non-custodial sentence would be inconsistent with the governing purpose and principles, and in light of the absence of any reasonable alternative to custody, a significant custodial sentence must be imposed upon the accused. These are, of course, some of the individual statutory prerequisites to the imposition of a custodial sentence on a young person according to s. 39 of the Youth Criminal Justice Act.

[34] At the same time, according to s. 41(2)(n) of the Youth Criminal Justice Act, the maximum custody and supervision order (where the supervision order must be half as long as the custodial order) is three years. Moreover, the accused has already served over two years in pre-sentence detention and, according to s. 38(3)(d), in determining any youth sentence, the youth court “shall take into account” the “time spent in detention” by the young person as a result of the offences.

[35] In these circumstances, even if the accused were only given the basic “one for one” credit for his pre-sentence detention, this would result in the maximum permissible disposition of a custody and supervision order of somewhat less than one year in duration. Such a sentencing disposition, in light of the pre-sentence custody served by the accused, would simply not be of “sufficient length” to properly hold the accused accountable for his offending behavior.

[36] In reaching this conclusion I have sought to apply the principles outlined by the Court of Appeal for Ontario in R. v. O.(A.), 2007 ONCA 144, (2007), 84 O.R. (3d) 561. In that case, the two 16-year-old accused pled guilty to a series of six well-planned and violent convenience store robberies. Both accused had significant youth court records and were already subject to multiple probation orders. The trial judge allowed the application by the Crown to sentence them as adults. Prior to sentencing, the accused spent two and one-half years in pre-sentence detention. After giving the accused a credit of three years for their lengthy periods of pre-sentence custody, the trial judge sentenced the accused to five year penitentiary terms of imprisonment. The accused appealed against their sentences. The Court of Appeal ordered a new placement hearing, holding that the trial judge erred in assessing the expert evidence concerning where the accused should serve their sentences, but otherwise dismissed the appeals by the accused. In reaching this conclusion, the Court of Appeal drew the following important conclusions as to the governing principles in relation to these sentencing issues:

• Onus on the Crown: The Crown has the onus of “satisfying” the court as to the matters referred to in s. 72(1)(b) of the Youth Criminal Justice Act. This is a serious evaluative decision, which requires an informed judgment by the court after careful consideration of all of the relevant factors, in the knowledge that the imposition of an adult sentence can lead to very severe consequences for the accused young person. At the same time, this burden on the Crown is not the heavy criminal law onus of proof beyond a reasonable doubt. See: R. v. O.(A.), 2007 ONCA 144, (2007), 84 O.R. (3d) 561, at paras. 28-38, 55.

• Accountability: The combined effect of ss. 72, 3 and 38 of the Youth Criminal Justice Act is to identify “accountability” as the purpose that the court must consider when deciding an application for the imposition for an adult sentence. Accountability is achieved through the imposition of “meaningful consequences” for the offender and “sanctions that promote his or her rehabilitation and reintegration into society.” However, the purpose of accountability excludes accountability to society in any larger sense or any notion of deterrence or denunciation. Accountability is the equivalent of the adult principle of “retribution” and, therefore, requires the imposition of a sentence that reflects “the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct”. See: R. v. O.(A.), 2007 ONCA 144, (2007), 84 O.R. (3d) 561, at paras. 42-48.

• Rehabilitation: The accountability inquiry mandated by ss. 72(1)(b) and 38(1) of the Youth Criminal Justice Act requires the court to evaluate, as one of the important factors in the analysis, the accused’s prospects for rehabilitation. The sentence ultimately imposed upon the accused must be one that promotes or fosters his or her rehabilitation and reintegration into society in a meaningful and realistic way. In seeking the imposition of an adult sentence, however, the Crown is not obliged to prove that the accused young person cannot be rehabilitated by the imposition of a youth sentence. See: R. v. O.(A.), 2007 ONCA 144, (2007), 84 O.R. (3d) 561, at paras. 53-59, 61.

• Credit for Pre-Sentence Detention: In determining the appropriate sentencing disposition for a young person, the court is obliged to take into account the time the accused has spent in pre-sentence custody in relation to the offences. The sentencing judge has a “broad discretion” as to precisely how much credit to accord for such detention, and there is no “fixed ratio or multiplier” that can be consistently applied. However, “fairness requires that a sentencing judge should not deny credit for pre-sentence custody without good reason.” See: R. v. O.(A.), 2007 ONCA 144, (2007), 84 O.R. (3d) 561, at paras. 74-78.

[37] In short, according to the lessons of R. v. O.(A.), 2007 ONCA 144, (2007), 84 O.R. (3d) 561, before an adult sentence may be imposed upon a young offender, the Crown must satisfy the court that a youth sentence, after the accused is fairly given credit for any pre-sentence detention, would not be long enough: (1) to properly hold the accused accountable for his or her crimes, having regard to the seriousness of the offences, the offender’s moral culpability in their commission, their consequential harm to any victims; and (2) to provide some reasonable assurance of the offender’s rehabilitation and safe reintegration into society. See also: R. v. M.(J.), [2004] O.J. No. 2796 (C.J.) at paras. 25-26; R. v. Ferriman, [2006] O.J. No. 3950 (S.C.J.) at paras. 36-38; R. v. Lights, [2007] O.J. No. 1516 (S.C.J.) at para. 45; R. v. S.(A.), [2009] O.J. No. 960 (C.J.) at paras. 78-80.

[38] As I have already indicated, in my view the Crown has met this onus in satisfying me that an adult sentence is required in all of the circumstances of this case. Even if I were to give the accused only one day of credit for each day of his more than two years of pre-sentence custody, the maximum custody and supervision order that could now be imposed upon the accused as a youth sentence would be something less than one year in duration. An effective custodial youth sentence of less than three years duration is just not long enough to properly hold the accused accountable for his criminal conduct.

[39] First, such a sentence would not adequately reflect the moral culpability of the accused, having regard to risks he intentional assumed in his conduct toward the complainant, the harm suffered by the complainant as a consequence of his criminal conduct, and the normative character of the offender’s conduct. In this regard it is important to recall that the accused deliberately planned and executed the armed robbery of the complainant with a loaded handgun, and then intentionally aided his friend, D.D., in his subsequent armed robbery and aggravated assault of the complainant, which offences culminated with the complainant being accidentally shot in the neck with the accused’s loaded handgun. In the commission of these offences the accused was highly culpable, willingly assumed great risks with respect to the life and well-being of the complainant, and only averted a charge of manslaughter by reason of the good fortune of the complainant in miraculously avoiding death.

[40] Second, such a sentence would not sufficiently promote the rehabilitation of the accused and his reintegration into society. In this regard it is important to recall that the accused has a history of violence, has previously been convicted of robbery, was on probation at the time he committed the present offences, and only now, in the structured environment of a pre-trial detention facility for young offenders, has begun to turn his life around and make significant strides in his rehabilitation.

[41] In reaching this conclusion, I have rejected the submission of counsel for the accused that I should, give the accused virtually no credit for his pre-sentence detention, and now simply impose the maximum three year custody and supervision order on the accused as a youth sentence. I do not see how effectively ignoring the fact that the accused has already served more than two years in pre-trial detention “takes into account” the accused’s pre-sentence detention, as statutorily required by s. 38(3)(d) of the Youth Criminal Justice Act. This statutory provision unequivocally states that such pre-sentence detention “shall” be taken into account in the imposition of any youth sentence. One does not properly take something into account by ignoring it.

[42] The governing authorities in Ontario support this common sense proposition. More specifically, the Ontario jurisprudence holds that the sentencing court has a broad discretion in the way any pre-sentence detention is taken into account. The sentencing court need not, with mathematical precision, deduct the entirety of the pre-sentence detention from the youth sentence that might otherwise be available. Indeed, in exceptional circumstances an accused may be given much less than the usual minimum “one for one” credit for pre-sentence custody. Nor is there any accepted and invariable formula or multiplier for the attribution of credit for such pre-sentence detention. At the same time, however, considerations of fairness and the mandatory language of s. 38(3)(d) of the Youth Criminal Justice Act require that such pre-sentence detention be properly taken into account. A sentencing court cannot simply ignore the pre-sentence detention of the accused. See: R. v. K.(M.) (1996), 107 C.C.C. (3d) 149 (Ont.C.A.) at pp. 156-158; R. v. B.(T.) (2006), 78 O.R. (3d) 721 (C.A.) at paras. 19-25, 34-44; R. v.L.(E.) (2006), 210 O.A.C. 124, at paras. 8-9; R. v. W.(D.), 2008 ONCA 268, at para. 3; R. v. S.(D.), 2008 ONCA 740, 239 C.C.C. (3d) 426, at paras. 20-31; R. v. R.(J.S.), [2009] O.J. No. 1662 (S.C.J.) at paras. 42-59; Affirmed: R. v. R.(J.S.), 2012 ONCA 568, 291 C.C.C. (3d) 394, at paras, 136-146; R. v. Logan, 2009 ONCA 402, at para. 19; R. v. B.(T.), 2013 ONCA 675, at para. 5.

[43] Moreover, there are no exceptional circumstances in this case that would potentially justify giving the accused significantly reduced or no credit for the time that he has already spent in pre-sentence custody. In my view, such a result-driven approach, at least in the circumstances of the present case, would be a strained interpretation of s. 38(3)(d) of the Youth Criminal Justice Act adopted only to artificially justify the imposition of an otherwise inappropriate youth sentence. While there may be cases where such an approach is justified, this case is not one of them. See, for example: R. v. P.(N.W.), 2008 MBCA 101, [2008] M.J. No. 304, at para. 23; R. v. J.(R.R.), 2009 BCCA 580, 250 C.C.C. (3d) 3, at paras. 38-57; R. v. T.(D.D.), 2010 ABCA 365, 265 C.C.C. (3d) 49, at paras. 33-59; leave denied: [2011] 2 S.C.R. x.

[44] In any event, as I have stated, I am satisfied that, even giving the accused merely a simple “one for one” credit for his over two years of pre-sentence custody, the maximum available custody and supervision order that could now be imposed upon the accused as a youth sentence, namely, an order of less than one year in duration, would not be of sufficient length to properly hold the accused accountable for his crimes. Accordingly, an adult sentence must be imposed upon the accused.

D. The Quantum of the Adult Custodial Sentence

1. Introduction

[45] Having determined that the application by the Crown under s. 72 of the Youth Criminal Justice Act must be granted, and an adult sentence be imposed upon the accused, the next question that must be addressed is the specific length of that adult sentence. Of course, once it is determined that an adult sentence must be imposed upon the young offender, s. 74(1) provides that all of the usual sentencing principles applicable to adults, contained in Part XXIII of the Criminal Code, apply to the sentencing of the accused.

[46] As I have indicated, the parties have essentially agreed that the mandatory minimum sentence in these circumstances, by virtue of the operation of s. 344(1)(a)(i) of the Criminal Code, is five years imprisonment. The accused used a handgun during his robbery of the complainant, and handguns are, by statutory definition according to s. 84(1) of the Criminal Code, always either prohibited or restricted firearms. Accordingly, five years imprisonment is the effective starting point in assessing the issue of the appropriate quantum of an adult sentence for the accused.

2. The Governing Sentencing Principles

[47] Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives, namely: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[48] Further, according to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[49] As required by s. 718.2 of the Code, in imposing sentence, the court must also take into account a number of principles including: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of their liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[50] There is some conflict in the appellate court jurisprudence as to whether s. 74(1) of the Youth Criminal Justice Act, which makes Parts XXIII of the Criminal Code applicable in cases where adult sentences are imposed on young persons, also operates so as to exclude consideration of the principles articulated in s. 3 of the Youth Criminal Justice Act. See: R. v. P.(D.D.), 2007 BCCA 206, 218 C.C.C. (3d) 298 (B.C.C.A.); R. v. F.(B.C.), 2009 SKCA 136, 249 C.C.C. (3d) 366, at paras. 13-39.

[51] If s. 3 of the Youth Criminal Justice Act were to remain influential in such cases, it might increase the significance of: (1) rehabilitation, especially in cases where there was clear evidence supporting the young person’s potential rehabilitation and likely successful re-entry into the community as a law-abiding and contributing member of society; and (2) the greater dependency and reduced maturity of young persons.

[52] I need not, however, express any view on this debate, which remains unresolved in Ontario, as the potential application of the principles in s. 3 of the Youth Criminal Justice Act would not lead me to a different result in all of the circumstances of the present case.

3. The Crimes of Armed Robbery/Aggravated Assault

[53] The accused has been convicted of a number of criminal offences. At its essence, however, the gravamen of his criminal conduct is found in his planned armed robbery of the complainant with his loaded handgun, almost immediately following by his intentional assistance to his friend, D.D., in his own armed robbery and aggravated assault of the complainant. This was, to say the least, a course of very serious criminal conduct on the part of the accused. Thankfully, the criminal offences committed by D.D., to which the accused was a party, did not result in more serious bodily harm to the complainant.

[54] Offences like robbery and aggravated assault, when committed with the assistance of a loaded firearm, always have the clear potential of causing grievous bodily harm or death. Therefore, such offences must be met with custodial sentences that are proportional to the sheer gravity of the crimes, and which appropriately stress the need to denounce and deter such crimes and adequately protect the public. Indeed, Parliament has decreed, by the enactment of s. 344(1)(a)(i) of the Code, that even first offenders must serve at least a minimum sentence of five years imprisonment for the commission of a robbery involving the use of a restricted or prohibited firearm. As I have already indicated, the accused does not challenge the constitutional validity of this mandatory minimum period of imprisonment as an adult sentence.

4. The Appropriate Global Adult Sentence for the Accused

[55] In my view, having regard to all of the circumstances of this case, the appropriate global sentencing disposition for the accused for all of his offences (with the exception of his two “breach” charges), before consideration is given to the appropriate credit to be given to the accused for his pre-sentence detention, is the mandatory minimum five year term of imprisonment required by s. 344(1)(a)(i) of the Criminal Code.

[56] An effective sentence of five years imprisonment is, in my view, proportional to the objective seriousness of the offences committed by the accused, provides an appropriate measure of deterrence and denunciation, and provides the requisite level of protection to the public. At the same time, a sentence of five years imprisonment fairly recognizes the youth of the accused, the significant strides he has taken toward his rehabilitation, and the reality that the consequences of the accused’s criminal conduct, for the complainant, were not more serious.

[57] Accordingly, before taking into account any credit to which the accused may be entitled by virtue of his pre-sentence detention, the proper application of the applicable principles of sentencing, in all of the circumstances of this case (with the exception of his two “breach” charges), would result in the imposition of a five year term of imprisonment for the accused.

5. Credit for Pre-Sentence Custody

[58] As I have indicated, the accused young person has already served a total of approximately two years and one month in pre-sentence custody.

[59] While s. 719(3) of the Criminal Code provides that the credit for such pre-sentence custody should generally be limited to “one day for each day spent in custody,” s. 719(3.1) of the Code states that, where “the circumstances justify it,” this credit may be increased to a maximum of “one and one-half days for each day spent in custody.”

[60] Significantly, in R. v. Summers, 2013 ONCA 147, at paras. 8, 119, the Court of Appeal for Ontario interpreted the practical application of these Criminal Code provisions, holding that a sentencing judge possesses the discretion under s. 719(3.1) of the Code to give enhanced credit to an accused for pre-sentence custody in order to account for the offender’s loss of remission and parole eligibility while in pre-sentence custody, where it is necessary to achieve a fair and just sanction. See also: R. v. Carvery, 2012 NSCA 107; R. v. Stonefish, 2012 MBCA 116, at paras. 81-85; R. v. Peterkin, at paras. 27-35.

[61] As I have indicated, the Crown contends that there are no exceptional circumstances in the present case that would warrant an award of any enhanced credit for pre-sentence custody. Defence counsel, on the other hand, argues that the accused should get the fully enhanced credit permitted by s. 719(3.1) of the Code, as he has effectively lost remission and parole eligibility and, by his positive behavior at the Roy McMurtry Youth Center, has shown that he would have earned remission and been an excellent candidate for early release on parole.

[62] I agree with the position advanced on behalf of the accused in this regard. In my view, based upon the application of the principles articulated in R. v. Summers, the accused is entitled to the enhanced credit of one and one-half days for every day he has spent in pre-sentence custody. Since his arrest, the accused has successfully completed his high school education, begun his college correspondence courses, fulfilled all of his community service obligations, and served as a solid role model for others. It is apparent that, since his arrest, the accused has matured significantly, and gained valuable insights into how he must change his ways and abandon his past behavior.

[63] I also note that, in R. v. B.(T.), at paras. 40-42, Lang J.A., delivering the judgment of the Court of Appeal for Ontario, referred to this one and one-half day credit ratio for pre-trial detention as the effective “starting point” for appropriately crediting young offenders for their pre-sentence detention. See also: R. v. O.(J.E.), 2013 SKCA 82, 417 Sask.R. 244, at paras. 44-46. I see no reason to depart from that starting point in the circumstances of the present case. Indeed, in my view, the factual considerations in the present case support the application of this maximum enhanced credit for the pre-sentence detention served by the accused.

[64] Giving the accused the maximum enhanced credit possible under s. 719(3.1) of the Code means that the accused receives a total credit of some 37½ months imprisonment toward his five year sentence. Barring the consideration of any other issue, after giving the accused this credit of 37½ months against his effective sentence of five years imprisonment, would result in the imposition of a reformatory length sentence of 22½ months duration. There is, however, another issue that needs to be addressed.

6. Breach of Court Orders (Weapons Prohibition and Probation)

[65] The accused has not only been convicted of the offences of armed robbery, aggravated assault and possession of an unlicensed firearm. The accused has also been convicted of two offences in relation to his breach of court orders, namely, possession of a firearm while prohibited by court order and failing to comply with the condition of a probation order.

[66] The weight of authority strongly suggests that, as a general rule, the commission of such offences should ordinarily result in the imposition of a consecutive sentence of imprisonment for such offences. See: R. v. Manning, [2007] O.J. No. 1205 (S.C.J.) at paras. 42-43; R. v. Ferrigon, [2007] O.J. No. 1883 (S.C.J.) at paras. 60-65; R. v. W.C.A., [2010] O.J. No. 2677 at paras. 49-51; R. v. Brown, 2010 ONCA 745, [2010] O.J. No. 4707, at para. 15; R. v. Sadat and Mensah, 2011 ONSC 3303, at paras. 41-48; R. v. Alexander, 2012 ONSC 6117, at paras. 39-43, 48-50; R. v. Ellis, 2013 ONSC 3092, at paras. 30-31; R. v. Chambers, 2013 ONCA 680, at paras. 20-27. The intentional violation of an unequivocal court order requires some effective additional sanction. Offenders must appreciate that court orders governing their conduct must be followed or there will be practical consequences for their violation.

[67] In all of the circumstances of this case, and especially taking into account the totality of the overall sentence imposed upon the accused, in my view, the accused should be sentenced to a consecutive sentence of one and a half months, less one day, for each of these two breach offences (concurrent).

[68] Normally a longer consecutive sentence of imprisonment would be appropriate. However, in the interests of totality, this shorter consecutive sentence of imprisonment is appropriate. With the total term of reformatory imprisonment totaling two years less a day, a greater degree of control can be exercised over the accused with the imposition of a well-structured probation order. Such a probation order will not only assist the accused in his continued rehabilitative efforts once he is released from custody, but will also better protect the public by providing a lengthy period of correctional supervision over the accused. If the accused were sentenced to a longer consecutive sentence of imprisonment, and thereby given a total custodial sentence longer than two years imprisonment, such a helpful probation order could not lawfully be imposed. See: Criminal Code, s. 731(1)(b). Further, I am most reluctant to impose a total sentence of penitentiary length upon the accused given his youth, the absence of any adult criminal record, and the very positive progress he has made to date toward his rehabilitation. As Doherty J.A. recently indicated in R. v. Nur, 2013 ONCA 677, at para. 93, “first offenders, especially young first offenders, will have a difficult time when placed in the federal penitentiary system.”

7. Conclusion

[69] In the result, the accused is sentenced to the maximum reformatory sentence of two years less a day. This total custodial sentence is comprised of a sentence of 22½ months imprisonment for the three offences of armed robbery, aggravated assault and possession of a firearm while not the holder of an authorization, licence, or registration certificate (concurrent), and a consecutive sentence of one and a half months, less one day, for the two offences of possession of a firearm while prohibited by court order and failing to comply with the condition of a probation order (concurrent).

[70] Given that the accused has been given credit for 37½ months of pre-sentence custody, this total custodial sentence of two years less a day, means that the accused has been given an effective global custodial sentence, for all of his offences, of five years, and one and a half months (less one day).

E. The Probation Order

[71] As soon as the accused is released from his reformatory sentence of imprisonment, the accused will become subject to a probation order that will last for a period of three years.

[72] That probation order will contain the mandatory statutory conditions prescribed by s. 732.1(2) of the Criminal Code, requiring the accused to: (a) keep the peace and be of good behaviour; (b) appear before the court when required to do so by the court; and (c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

[73] That probation order will also contain the following additional conditions:

(a) The accused shall report to a probation officer within three working days of his release from custody, and thereafter as required and directed by the probation officer, but not less than once a month;

(b) The accused shall remain within the territorial jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

(c) The accused shall abstain absolutely from the consumption of any drugs except in accordance with a medical prescription;

(d) The accused shall abstain absolutely from owning, possessing or carrying any weapon;

(f) The accused shall perform 240 hours of community service, as directed by his probation officer, over a period not exceeding 18 months;

(g) The accused shall diligently pursue his continued education, or maintain full-time employment;

(h) The accused shall not associate or communicate with anyone known by him to have a criminal record.

F. Ancillary Sentencing Orders

[74] The parties are agreed that the accused should also be subject to the following two ancillary sentencing orders.

[75] First, pursuant to ss. 109(1) and (3) of the Criminal Code, the accused is prohibited from the possession of any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for life.

[76] Second, as the accused has been convicted of “primary designated offences” within the meaning of s. 487.04(a) of the Criminal Code, pursuant to s. 487.051(1) of the Code, I make an order, in Form 5.03, authorizing the taking of samples of bodily substances from the accused for purposes of forensic DNA analysis.

G. Conclusion

[77] In conclusion, the accused is convicted of the offences of: (1) armed robbery; (2) aggravated assault; (3) possession of a firearm while not the holder of an authorization, licence, or registration certificate; (4) possession of a firearm while prohibited by court order; and (5) failing to comply with the condition of a probation order. The findings of guilt with respect to the other offences are conditionally stayed.

[78] The accused young person is given an adult sentence. More particularly, after giving the accused the credit of 37½ months imprisonment for his pre-sentence detention, I sentence him to the maximum reformatory term of imprisonment of two years less one day. This total sentence is comprised of: (1) a sentence of 22½ months imprisonment (concurrent) for the three offences of armed robbery, aggravated assault and possession of an unlicensed firearm; and (2) a consecutive sentence of one and a half months imprisonment less one day (concurrent), for the two breach offences. Following his term of imprisonment, the accused will serve a three year term of probation on the terms that have been outlined. The accused will also be subject to the two ancillary sentencing orders that have been made.

[79] While I have referred, on occasion, to the imposition of a “reformatory” term of imprisonment, and have sentenced the accused to the maximum adult “reformatory” sentence of two years less one day, I have done so only as a matter of convenient speech. I will seek the assistance of counsel in relation to the placement of the accused while he serves this adult sentence, as required by s. 76 of the Youth Criminal Justice Act.

Kenneth L. Campbell J.

Released: November 15, 2013

CITATION: R. v. L.(H.), 2013 ONSC 7050

COURT FILE NO.: 433/12

DATE: 20131115

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

H.L. (A YOUNG PERSON)

REASONS FOR SENTENCE

K.L. Campbell J.

Released: November 15, 2013