ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
[Note: This proceeding is subject to publication restrictions under section 110 of the Youth Criminal Justice Act.]
COURT FILE NO.: YC 50000006-12
DATE: 20140610
B E T W E E N:
HER MAJESTY THE QUEEN
P. Zambonini & K. Lockhart, for the applicant
Applicant
- and -
S. B.1, T. F. and M. W.
(young persons pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
S. Boutzouvis & S. Makonnen, for the respondent, S. B.1
I. Kostman, for the respondent, T. F.
D. Goodman, for the respondent, M. W.
Respondents
HEARD: May 26 & 27, 2014
Nordheimer J. (orally):
[1] On May 29, 2013, I found these three young persons, who I shall refer throughout these reasons only by their first names, guilty of first degree murder. The Crown now applies to have adult sentences imposed.[1] I do not intend to repeat all of the reasons that I gave at the time for reaching my findings of guilt. It is sufficient for the purposes of these applications to give a brief summary of those facts.
[2] On November 17, 2010, shortly after 3:30 in the afternoon, sixteen year old Tyrone Bracken was shot and killed in the west stairwell at 135 Neptune Drive in the City of Toronto. Tyrone lived at 135 Neptune Drive with his mother and sister although he was not actually living there on the day that he was murdered. 135 Neptune Drive is part of a complex of three buildings located near Highway #401 and Bathurst Street.
[3] Tyrone died from a single gunshot that entered his skull behind his right ear. The bullet lodged in his left temple area. This gunshot wound would, for all practical purposes, have been immediately fatal. Tyrone also suffered a second gunshot wound. That bullet grazed his right cheek and his nose before lodging in the wall of the stairwell. Based on the presence of gunshot powder and stippling near the facial wound, and given the confines of the stairwell where the shooting occurred, it is readily apparent that the fatal shot was fired mere inches from Tyrone’s head. Put in its simplest and basic terms, Tyrone was executed.
[4] M.W. and T.F. were close friends. They were also friends with Tyrone although it appears that T.F. was a much closer friend to Tyrone than was M.W.. That said, Tyrone had misgivings about these friendships. Indeed, shortly before his death, Tyrone had expressed concerns about his Neptune friends to others, including an express concern that T.F. was going to “set him up”. S.B.1 was apparently not known to Tyrone nor was he particularly known to T.F.. He was known to M.W.. Indeed, M.W. was very much the conduit or link between S.B.1 and T.F. in the plan to kill Tyrone.
[5] My findings regarding what happened on November 17, 2010 are set out at length in my reasons for conviction. In essence, I found that Tyrone was set up to be killed and that T.F. played the central role in getting Tyrone into the stairwell where the killing could take place. In furtherance of that plan, T.F. opened a side door to allow S.B.1 into the building. S.B.1 was the person who, I found, actually shot and killed Tyrone in the stairwell. Although he was on his way to the scene, M.W. was not actually present in the building at the time of the killing. Nevertheless, I found that M.W. played an integral role in the planning and carrying out of the murder and an active role in the subsequent attempts to cover-up the involvement of these three young men in the murder. T.F. was present when S.B.1 killed Tyrone as was another youth, S.B.2. While S.B.2 was also charged, I was not satisfied that S.B.2 was part of the plan to kill Tyrone. Rather, I concluded that S.B.2 was simply in the wrong place at the wrong time. Consequently, I acquitted S.B.2 of the murder charge.
[6] There were a lot of text messages that were put into evidence at the trial that detailed the plan to murder Tyrone and the involvement of S.B.1, T.F. and M.W. in that plan. These text messages are from both before and after the murder. There was also surveillance video from the building complex that showed some of the relevant events, both prior to and immediately after the murder.
[7] The issue that is now before me is whether S.B.1, M.W. and T.F. should receive a youth or an adult sentence for this offence. In deciding whether to impose an adult sentence, s. 72(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 directs the court to consider three factors[2]:
(i) the seriousness and circumstances of the offence;
(ii) the age, maturity, character, background and previous record of the young person; and
(iii) any other factors that the court considers relevant.
[8] With those factors in mind, if the court is then of the opinion that a youth sentence “would have sufficient length to hold the young person accountable for his or her offending behaviour” then the court must impose a youth sentence. If the court is of the opinion that a youth sentence would not have that effect, then an adult sentence is to be imposed. As the Court of Appeal held in R. v. O.(A.), 2007 ONCA 144, 218 C.C.C. (3d) 409 (Ont. C.A.), the burden on the Crown on such an application is not a heavy one. Rather, as the court said, at para. 38:
Section 72(2) imposes an onus of satisfying the court, nothing more. However, in applying that onus, it is important that a youth justice court bear in mind the very serious consequences of an adult sentence for the young person, so as to only order an adult sentence when necessary to fulfil the objectives of the YCJA.
[9] I begin by setting out the respective sentences for first degree murder as between the YCJA and the Criminal Code. Section 42(2)(q) of the YCJA provides that the maximum sentence that may be imposed on a young person on a conviction for first degree murder is ten years, comprised of a period of custody not to exceed six years followed by a placement in the community under conditional supervision for up to four additional years. If sentenced as an adult, the penalty for first degree murder under the Criminal Code is life in prison. Since S.B.1, M.W. and T.F. were all sixteen years old at the time of the commission of the offence, pursuant to s. 745.1(b) of the Criminal Code, parole eligibility is to be set at ten years.
[10] I repeat that the central question is to determine whether or not a youth sentence would have sufficient length to hold S.B.1, M.W. and T.F. accountable for their offending behaviour. In R. v. O.(A.), the Court of Appeal identified accountability as the objective of the process in the YCJA for determining whether an adult sentence should be imposed on a young person. The Court of Appeal said, at para. 46, that accountability in this context is equivalent to the adult sentencing principle of retribution. Regarding that latter principle, the court quoted from the Supreme Court of Canada’s decision in R. v. M.(C.A.) (1996) where Lamer C.J.C. said, at para. 80:
Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly 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. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.
[11] It is against the backdrop of these principles that I approach my determination of these applications.
[12] Before turning to that issue, however, I want to make reference to the victim impact statements that I heard from Tyrone Bracken’s father and grandmother. I am fully aware of the terrible loss that the murder of Tyrone has had on the Bracken family. The loss of a teenaged boy, especially in such circumstances, is truly tragic. Tyrone had some issues in his life but neither those issues nor anything else could possibly justify the ending of a life at such a young age and in such a fashion. While I doubt that my decision regarding the appropriate sentence to be imposed will in any way lessen the loss that the Bracken family feels, I hope that it will at least provide a measure of closure to this dreadful chapter in their lives.
[13] Let me now turn to the first factor under s. 72(1).
(i) The seriousness and circumstances of the offence
[14] I have already briefly set out the basic facts. From those facts, the seriousness of this offence should be readily apparent. This was the planned and deliberate murder of a teenaged boy by other teenaged boys. Each of S.B.1, M.W. and T.F. played their own particular roles in this murder. S.B.1 shot Tyrone. M.W. was deeply involved in the planning of it, was an important link between S.B.1 and T.F. leading up to the killing and was then actively involved in the efforts, after the murder, to deflect attention towards others. T.F. was the person who allowed S.B.1 entry into the building to commit the killing and was the person who used his friendship with Tyrone to get him into the stairwell where the killing occurred. T.F. was also the person who hid a firearm in his apartment and then subsequently got his mother to dispose of it.
[15] On that latter point, I did not consider it necessary for the purposes of my reasons at trial to reach a firm conclusion on what happened to the murder weapon. However, the issue arises again, and more directly, at this stage because it could be an aggravating factor on sentence. While it may be implicit from a review of my trial reasons what my conclusion was on this point, I will say clearly now that I am satisfied beyond a reasonable doubt that the firearm that T.F. got his mother to dispose of was the murder weapon. I reach that conclusion based on the following evidence. There is the surveillance video that shows T.F., prior to the shooting, apparently not carrying any heavy object on his person but that also shows him, immediately after the shooting, running in a manner, as Detective Ferguson said, that is consistent with a person who has a gun on his person. The surveillance video also shows contact between T.F. and S.B.1 immediately after the murder, as they both leave the stairwell, thus providing the opportunity for S.B.1 to pass the gun to T.F.. There are also all of the text messages after the shooting that reveal that T.F.’s mother found a gun in a bag in their apartment, a few hours after the shooting. T.F. then goes to considerable effort to get someone to retrieve the gun and, only after those efforts fail, does he instruct his mother to throw the gun away in a grassy treed area outside of their apartment building. The murder weapon was, I note, never found. The sum of that evidence gives rise to the reasonable, if not irresistible, inference that the gun was the murder weapon.
[16] Another event happens after the murder. S.B.1 and M.W. are engaged in a series of text messages where they discuss their concerns about the fact that S.B.2 was a witness to the murder, that they believe that S.B.2 has told his sister what he saw, that S.B.2’s sister has, in turn, told Tyrone’s sister who has, in turn, confronted T.F. about it. S.B.1 and M.W. also express concerns that S.B.2 may be talking to the police although there is no evidence that he actually did that. These concerns lead S.B.1 and M.W. to discuss the need to kill S.B.2 and, possibly, also S.B.2’s mother and his sister.
[17] Finally on this factor, the evidence did not reveal any reason for the murder of Tyrone Bracken. There is evidence that Tyrone was involved with drugs and drug dealing, and there was some evidence that Tyrone owed a person money arising from his drug dealing, but there was no connection established between that fact or that person and these three young men. While there was also some evidence that the Neptune area was in some sort of conflict with another area of the city, known as the “Jungle”, there was no evidence that Tyrone was on a different side of that conflict from these three accused. In the end result, the reason for this murder remains unknown. The fact that the killing is unexplained increases the unease that naturally arises from any murder.
(ii) The age, maturity, character, background and previous record of the young person
[18] It is at the point of this second factor that I believe it is best to address each of these young men separately.
S.B.
[19] S.B.1 was sixteen years old when the offence took place, about two months away from his seventeenth birthday. He is now twenty years old. S.B.1 was arrested for this offence on July 18, 2011 while he was in custody on other charges.
[20] S.B.1 is the older of two children. His parents divorced when he was about ten years old. Nevertheless, his parents continued to have an amicable relationship, although his father’s involvement in S.B.1’s life seems to have been intermittent at best. Unfortunately, it appears that control was lost over S.B.1 as he grew older when his mother was trying to raise him alone while at the same time working fulltime to provide income for the family. The result was that S.B.1 gravitated towards negative peers. By age fourteen, S.B.1 became involved with the police. As a result, S.B.1 has a youth record including convictions for robbery, assault, failure to comply and possession of marijuana for the purpose of trafficking. He was subject to a weapons prohibition order at the time of the murder and he was also on probation at the time. I should also mention that S.B.1 has a very young child.
[21] I have a pre-sentence report for S.B.1. I do not agree with counsel that it is a positive report. Rather, I consider the report to be very much mixed in its evaluation of S.B.1. On the one hand, S.B.1 has participated in some programming and did complete his high school education. On the other hand, his attitude while in custody is noted as being both positive and negative. He has been described by staff as a “skilled behind the scenes manipulator” who tries to run the unit in which he is housed. It is also of concern that S.B.1 has incurred a large number of incident reports while he has been in custody. These include being in possession of drugs and disobeying rules. The incidents also include three assaults on other inmates and two incidences of threatening staff. Finally, the pre-sentence report reveals that S.B.1 has failed to convey any empathy for the victim.
[22] A s. 34 psychological assessment of S.B.1 was ordered but was unable to be completed because S.B.1 refused to participate. He did so on the advice of counsel as a result of the fact that S.B.1 still has other charges outstanding. Dr. Klassen, who was asked to conduct the assessment, and who reviewed a good deal of material relating to S.B.1, did express serious concerns regarding S.B.1’s history of antisocial attitudes and actions.
[23] I should say that I have not drawn any negative inference from S.B.1’s failure to participate in the s. 34 assessment. There were valid reasons for him not doing so. However, his failure to participate in that assessment does mean that I do not have additional information that might have been of assistance in evaluating S.B.1 under my consideration of this factor.
[24] There is one other aggravating factor that bears mention with respect to S.B.1.[3] I earlier mentioned the conversations between S.B.1 and M.W. about the need to kill S.B.2. In the course of those discussions, S.B.1 makes it clear that he wished he had shot S.B.2 at the same time that he shot Tyrone. S.B.1 also makes it clear that he is prepared to correct that mistake by finding S.B.2 and killing him. Indeed, S.B.1 goes beyond just expressing his intention to kill S.B.2. He also suggests that he is prepared to kill S.B.2’s mother and sister as well in retaliation for S.B.2’s conduct.
M. W.
[25] I now turn to M.W.. M.W. had just turned sixteen years old when the offence took place. He is now nineteen years old. M.W. was arrested for this offence on September 19, 2011.
[26] M.W. is the younger of two children. His parents split up when he was three years old because M.W.’ father was abusive to his mother. M.W. has had little contact with his father. M.W. began to show behaviour problems when he was four or five years old. M.W. was diagnosed at that time with ADHD but he refused to take medication for his condition. M.W.’ negative behaviour escalated as he got older, especially in terms of his temper. He would lose his temper easily and become quite angry. All of that said, M.W.’ mother’s extended family have been very supportive of him. It also appears that M.W.’ anger problems are now less severe than they were in the past. M.W. admits to smoking marijuana from when he was nine or ten years old and also admits that he was smoking it daily by grade six or seven.
[27] M.W. has a criminal record consisting of a conviction for possession of a prohibited or restricted firearm with ammunition and assault with a weapon. These convictions arose out of an assault on a young female. These convictions occurred just a few months prior to the murder of Tyrone Bracken. At the time of the murder, M.W. was on probation arising from these offences. He was also subject to a weapons prohibition order. I should also note that M.W. admitted in his psychological assessment to selling drugs but adds that he was never caught doing so by the police.
[28] I have a pre-sentence report for M.W.. It is also mixed in its evaluation of M.W., although it is slightly more positive than was the case with S.B.1. M.W. is described in the report as mature, positive and co-operative. M.W. has received twenty certificates while in custody for various achievements including, perhaps most importantly, completing his High School Diploma. However, M.W. has also accumulated many behavioural incidents while he has been in custody. These incidents include two occasions where M.W. joined with others to assault another inmate and two incidences where he was suspected of hiding drugs. It also includes many instances of disobeying staff and rules.
[29] A s. 34 psychological assessment of M.W. was prepared. Dr. Ramshaw, who conducted the assessment, notes that M.W. has clear problems with aggression flowing from anger, problems with trust and poor coping strategies. Dr. Ramshaw also notes concerns regarding the susceptibility of M.W. to negative peer influences. It is Dr. Ramshaw’s opinion that M.W. does not suffer from any major mental illness. In particular, Dr. Ramshaw finds that there was no evident psychopathy. She concludes that M.W. poses a moderate risk of re-offending. Dr. Ramshaw also concludes that M.W. has emotional disturbances involving anger and trust.
[30] Both Dr. Ramshaw and the author of the pre-sentence report expressed a cautionary note that there were limits to their reports because M.W. was unwilling to talk about the offence itself. M.W.’ stated position is that he is innocent of the offence and that he has, in essence, been wrongfully convicted. Given his views in this regard, and his intention to appeal his conviction, M.W. would not speak about the offence to either Dr. Ramshaw or the probation officer.
[31] M.W.’ position in this regard poses a dilemma for sentencing purposes. He is quite entitled to take the position that the decision convicting him is wrong. M.W.’ position does not change the fact, however, that he has not taken responsibility for his actions nor has he expressed any remorse. Both of those otherwise mitigating factors on sentence are therefore absent in his case. On this point, it is also concerning that M.W. told Dr. Ramshaw that he had been wrongfully accused by the complainant in the prior assault with a weapon conviction and that he had no knowledge of the firearm subsequently found in his home, even though M.W. pleaded guilty to both offences. M.W. also disclaimed the prior conviction for failure to comply. All of this suggests a pattern by which M.W. is generally unwilling to take responsibility for his actions.
[32] There is again a particular aggravating factor that bears mention with respect to M.W.. It follows on the aggravating factor that I mentioned regarding S.B.1 and that is the discussion about killing S.B.2, the other youth in the stairwell. M.W. was involved in those discussions. Indeed, on a fair reading of the text messages, M.W. was more aggressive about dealing with S.B.2 as he apparently blamed S.B.2 for the fact that M.W.’ close friend, T.F., had been arrested for this offence. In fact, at one point, when S.B.1 expressed an intention to try and find out more information about who S.B.2 has or has not spoken to, M.W. told S.B.1 that they do not have to wait for any further information to reach the conclusion that S.B.2 was not loyal. As a result, M.W. expressed the view that S.B.2 should be killed as soon as he could be found.
T.F.
[33] Lastly, I turn to T.F.. T.F. was also sixteen years old when the offence took place, just two weeks shy of his seventeenth birthday. He is now twenty years old. T.F. was arrested for this offence on November 23, 2010.
[34] T.F. is the oldest among his siblings and half-siblings. His parents split up when he was three years old. T.F. has had little contact with his father. He has had more contact with his step-father but his step-father was abusive in his relationship with T.F.’s mother. T.F. had little success at school undoubtedly due to the fact that he suffers from a learning disability that was later diagnosed. T.F. reported himself as being a person who is always “down”. In response, at least in part, to his negative mood, T.F. has smoked marijuana daily since the age of fourteen.
[35] T.F. has a criminal record consisting of two convictions for assault, one for robbery and three for failure to comply with court orders. T.F. had completed the open supervision portion of his sentence on the robbery conviction just three days prior to the murder. At the time of the murder, T.F. was on probation. He was also subject to a weapons prohibition order.
[36] I have a pre-sentence report for T.F.. As with the other reports, it is also mixed in its evaluation of T.F. although it is clearly more positive than the other two, especially in terms of T.F.’s conduct in more recent times. In particular, it outlines some significant progress by T.F. since he has been in custody. While his conduct was not so positive when he was first placed in the Roy McMurtry Centre, after he was moved to the Cecil Facer Youth Centre, T.F.’s conduct improved. T.F. has, since his incarceration, achieved his High School Diploma and has also received a number of certificates for participating in other programs. While at Cecil Facer, T.F. was described as a role model to his peers. When T.F. eventually returned to the Roy McMurtry Centre, he was described by the staff as being noticeably more mature. He continued to do well and continued to exhibit role model behaviour. His attitude towards staff was polite, respectful and courteous. Nevertheless, during his time in custody, T.F. has also accumulated a large number of behavioural incidents. Of more significance on this point, T.F. also received an adult conviction for assaulting another youth while in custody.
[37] A s. 34 psychological assessment of T.F. was prepared. Dr. Ramshaw, who again conducted the assessment, notes that T.F. was not currently experiencing any clinically significant psychological problems or emotional distress. However, the assessment showed that T.F. was experiencing substantial levels of anger and anger-related problems. These anger problems were ones that were considered likely to interfere with T.F.’s day-to-day functioning and with his relationships with others. Dr. Ramshaw’s opinion is that T.F. is at a high risk for future aggression for fighting in light of his anger problems. However, Dr. Ramshaw observes that with structure, counselling and direct supervision, T.F. has made some gradual improvements over time with regard to his behaviour, academics and maturity.
[38] Dr. Ramshaw again cautioned that her report was limited because T.F. was also unwilling to talk about the offence itself. Since he is appealing his conviction, T.F. would not, on the advice of his counsel, speak about the offence to Dr. Ramshaw. Some of the value that might otherwise come from the assessment is therefore absent.
[39] One consequence of this state of affairs, as was the case with M.W., is that there is no evidence that T.F. has accepted responsibility for his actions in respect of the murder. While there is some reference in Dr. Ramshaw’s report to T.F. feeling badly about the loss of his friend, Tyrone, it does not appear that that feeling amounts to any remorse by T.F. for his role in Tyrone’s death. Once again, therefore, these mitigating factors are absent in the case of T.F..
(iii) Any other factors that the court considers relevant
[40] It is under this heading that I choose to address two other factors that I consider to be of importance in these applications. One is the interests of society. The other is the proper weight to be given to the fact that both M.W. and T.F. were evaluated and accepted for Intensive Rehabilitative Custody and Supervision orders.
[41] In terms of the societal interests, while the YCJA focuses on the young person, it does not exclude, by its own terms, all other legitimate interests. The interests of the young person in rehabilitation and reintegration must be balanced against the societal interests in ensuring that young persons who commit serious violent offences are subject to meaningful penalties that not only hold the young person accountable for his or her actions but will also assist in the protection and safety of the community at large. In that regard, the provisions of s. 38(1) of the YCJA are worth repeating:
The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.
[42] As I have observed on earlier occasions, while the YCJA is offender-centric, it is not offender exclusive. The interests of society at large, especially the protection of society, are still important considerations. A sentence that may more effectively promote rehabilitation for the young person does not properly achieve the purposes of a youth sentence if it has the effect, at the same time, of diminishing the protection of the public. It must be kept in mind that rehabilitation is but one factor in the overall analysis. As the Court of Appeal pointed out in R. v. O.(A.) at para. 57:
This approach properly treated rehabilitation as one, but only one, of the important factors that are integral to the accountability inquiry mandated by ss. 72(1)(b) and 38(1) of the YCJA.
[43] The issue of rehabilitation leads to a consideration of the role that an IRCS order should play in this case. In essence, an IRCS order provides the young person with a more intensive treatment and programming schedule during their sentence, both while the young person is in custody and when he or she is under conditional supervision. Both M.W. and T.F. were assessed for, and found eligible to receive, an IRCS order, if sentenced as youths. Their counsel placed great emphasis on this fact to support their position that a youth sentence was the appropriate disposition in both cases.
[44] I have no doubt that M.W. and T.F. would benefit from being subject to an IRCS order in terms of their own rehabilitation. Indeed, it would seem to me that it would be an unusual situation where a young person, who is eligible for an IRCS order, would not be better off with that disposition than just with a normal youth sentence.
[45] There are, however, some problems with the IRCS order itself as it applies to a situation such as the one here. One relates to the custodial placement. T.F. is currently twenty years old and is presumptively subject to being transferred to an adult facility. If T.F. is serving a six year custody sentence, it would be open to the Provincial Director to ask to have him transferred to a Federal penitentiary: YCJA, s. 93(2). If that were to occur, I am told that the funding for the IRCS order would cease since the matter would no longer be within the Provincial system. Consequently, for the IRCS order to continue, T.F. would have to be housed at a Provincial reformatory and remain there for a much longer period of time than any adult is normally housed in a Provincial reformatory.
[46] More importantly, however, is the fact that an IRCS order can only operate if the young person is willing to participate in it and abide by its terms. There is no evident penalty if the young person chooses, at some future point, to cease to participate in the treatment and programming provided by the IRCS order. An IRCS order is not like a conditional sentence where the breach of a condition results in the person being brought back before the court that can then refashion the sentence. It is also not like a probation order where the breach of a condition is, in and of itself, a separate offence. A young person could, at any point during the ten years where the IRCS order would be outstanding in a case such as this, decide to no longer abide by its terms and there would be no further legal consequences for that young person. All of these concerns will be equally applicable to M.W. when, six months from now, he also turns twenty.
[47] Counsel for M.W. and T.F. respond to these concerns by submitting that, if either of them chose to withdraw from the IRCS order, the Crown would be able to react to that event by then appealing the youth sentence. I have serious doubts that that avenue of recourse is open to the Crown. It is unclear to me how the decision by a young person to withdraw from an IRCS order would give grounds for the Court of Appeal to review the original order deciding on a youth sentence over an adult sentence. Any number of things may happen to someone, after a sentence is imposed, that may make the original sentence seem not as appropriate as it appeared to be at the time it was imposed, but I fail to see how that could form a proper basis for a Crown appeal for a new and different sentence. That is particularly so in this situation given that the withdrawal from an IRCS order could occur one, two or more years after the decision is made to impose a youth and not an adult sentence.
[48] A further problem with the IRCS order is that there is no ongoing supervision of a type similar to the supervision provided by the National Parole Board in the case of a person who receives a life sentence for murder. In that latter situation, the person is subject to supervision for life. While I am not suggesting that, in the case of a young person, supervision for life is necessarily required or appropriate, there is a wide gap between supervision for life and no supervision. The fact remains that once the IRCS order ends, so does any supervision. In the case of T.F., for example, if credit is given for his pre-sentence custody of three and one-half years, the maximum period that T.F. would be subject to the IRCS order would be six and one-half years. The IRCS order would then end when T.F. is in his mid-twenties as would all supervision over him. The same basic result would also occur in M.W.’ case.
[49] I should at this point say, on the subject of credit for pre-sentence custody, that I remain of the view that some credit for pre-sentence custody must be given when imposing a sentence on young persons. I reject the notion that, in an effort to fashion a proper youth sentence, time spent in pre-sentence custody can, effectively, be ignored. I do not intend to repeat my analysis and reasons for that conclusion that are contained in certain other decisions I have made but will simply rely on those earlier decisions with respect to that issue.[4] This issue is again, however, of more academic than practical interest given my ultimate conclusion on the three factors.
[50] I recognize, of course, that if the treatment and programming provided by the IRCS order were to completely rehabilitate T.F. and M.W. during its currency, then the lack of future supervision would not be an issue. However, there is no reason to believe that that will be the result. I doubt that anyone involved with the youth justice system would be prepared to offer up such a guarantee especially recognizing that the mental development of young persons is far from determined at this stage, as psychiatrists will readily confirm. Certainly, there is nothing in the s. 34 assessments that suggest that that will be the end result. While an IRCS order is a positive opportunity for the rehabilitation of any young person, it does not come with any lifetime warranty.
[51] In my view, these failings in the IRCS regime are fundamentally problematic for a case such as this. It makes it unwise to place too much reliance on the IRCS order as the answer to the fundamental concern raised by the conduct in this case. It is simply too risky to assume that the IRCS order will be able to bear the weight of ensuring the desired result, which is not only the rehabilitation of the offender but also the protection of the public. I repeat that while I accept that an IRCS order would be beneficial for the rehabilitation of M.W. and T.F., rehabilitation is not the sole goal mandated by the YCJA. As the Court of Appeal noted in R. v. O.(A.) at para. 45:
Thus, the question in this case is what is meant by the terms accountability, meaningful consequences, rehabilitation and reintegration. One obvious point is that meaningful consequences cannot be synonymous with rehabilitation and reintegration. Parliament has used the different terms and is presumed to have intended different meanings.
Conclusion
[52] In the end result, the first factor clearly argues in favour of an adult sentence. Indeed, I suggest that it would be a rare and unusual case where the offence of first degree murder would not incline one toward the imposition of an adult sentence since the concept of retribution would normally tilt that factor towards that result. While the YCJA provides a penalty for first and second degree murder, the situations where those penalties will be properly viewed as having meaningful consequences are likely to be much fewer for the offence of murder than would be the case for all other offences.[5]
[53] In terms of the second factor, there are aspects of each of these young persons that provide support both for an adult sentence and for a youth sentence, as I shall explain when I set out my individual conclusions.
[54] Finally, there is the third factor, what I have described as the societal interest. Society has an interest in ensuring that young persons who commit serious violent offences are subject to meaningful penalties. The YCJA says that the test is whether the length of a youth sentence would hold the young person accountable. The Court of Appeal has said that accountable, in that sense, equates to the principle of retribution. The Supreme Court of Canada has said that retribution requires a reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender.
[55] This was the most serious of offences. It was the planned and deliberate murder of a sixteen year old boy at the hands of three other sixteen year old boys. The victim is shot execution style in the stairwell of his apartment building for reasons that remain unknown. It is the type of event that, to most citizens of this city, is both inexplicable and inherently alarming. It is difficult for most people to understand how young persons can come to engage in such conduct and, consequently, it instils fear in the minds of ordinary people.
[56] In my view, the only appropriate sentence to impose on S.B.1 is an adult sentence. It is the only sentence that will hold him accountable for his role in this murder and his conduct surr