Court File and Parties

Court File No.: YC-14-50000004 Date: 2016-05-10 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Phillip Joseph (P.J.)

Counsel: Maureen Bellmore, for the Crown Mitchell Chernovsky and Matt Fisico, for the Defendant

Heard: April 6, 7, and 8, 2016

Before: M.A. Code J.

Reasons for Sentence

A. Introduction

[1] On October 16, 2015, the accused Phillip Joseph (P.J.) was convicted by a jury of the second degree murder of Michael Cocomello. A much delayed sentencing hearing concluded on April 8, 2016.

[2] The main issue on the sentencing hearing is whether P.J. should receive a "youth sentence" or an "adult sentence." If a "youth sentence" is appropriate, s. 42(2)(q) of the Youth Criminal Justice Act (Y.C.J.A.) provides for a mandatory maximum sentence of 7 years, made up of a maximum 4 year period in "custody" and with the remainder to be served "under conditional supervision … in the community." If an "adult sentence" is appropriate, s. 745.1(c) of the Criminal Code provides for a mandatory minimum sentence of life imprisonment with parole eligibility after 7 years (given that P.J. was 17 years old at the time of the offence).

[3] The sentencing hearing was delayed, initially because the Pre-Sentence Report (PSR) raised certain "mental health concerns." As a result, a s. 34 Y.C.J.A. assessment by the Centre for Addiction and Mental Health (CAMH) was ordered. The initial report from CAMH was based, in part, on an account of the murder provided by P.J. that was inconsistent in certain respects with the jury's verdict and with the facts proved at trial. As a result, this initial s. 34 report had limited utility.

[4] On February 16, 2016, I heard submissions from counsel as to the facts of the offence that would form the basis for sentencing, pursuant to the process set out in s. 724(2) of the Criminal Code. On February 18, 2016, I issued written reasons setting out the facts "essential to the jury's verdict" of second degree murder, as well as those additional facts of which I was satisfied to the requisite standards of proof. See: R. v. P.J., 2016 ONSC 1208.

[5] A further s. 34 report was then prepared. It was based on a further interview with P.J. conducted by CAMH. It was also based on the facts set out in my February 18, 2016 reasons. In addition, pursuant to s. 42(2)(r) of the Y.C.J.A., an "intensive rehabilitative custody and supervision order" (IRCS) report was prepared. This further report was due to the s. 34 evidence indicating that P.J. suffered from "a mental illness or disorder." An IRCS report involves a number of statutory pre-conditions, as set out in s. 42(7) of the Y.C.J.A., all of which had to be satisfied.

[6] Finally, s. 76(1) of the Y.C.J.A. requires the sentencing judge to make placement decisions, as to where the sentence is to be served, if an "adult sentence" is imposed. This kind of decision would normally play little or no part in a sentencing hearing as it involves hearing evidence from correctional authorities.

[7] As a result of the above developments, the author of the PSR, the author of the two s. 34 reports from CAMH, the author of the s. 42(7) IRCS report, and various correctional witnesses all testified at the eventual sentencing hearing.

[8] At the end of the sentencing hearing, I reserved judgment. These are my reasons for sentence.

B. Facts Relating to the Offence

[9] As noted above, the facts relating to the offence are set out in my February 18, 2016 written reasons. I will summarize them but will not repeat them in the same detail.

[10] The basic facts relating to the homicide were not in dispute. They were described as follows in my February 18, 2016 reasons (at paragraphs 7-9):

Many of the facts in this case are not in dispute. In particular, the parties agree that Cocomello died on March 4, 2013 after suffering approximately twenty injuries in the course of some kind of altercation with P.J. The injuries included blunt force trauma to the head and seventeen stab wounds to the face and body. P.J. admitted that he was the person who caused these injuries to Cocomello. P.J. also admitted that he had no visible injuries other than a small cut to his shoulder which no one saw. The surveillance photographs, Exhibits 38(A), (B), and (C), show no visible injuries to P.J.’s face, neck or hands.

The context for this fatal altercation was that the deceased Cocomello and the accused P.J. were both involved in the drug trade. Their numerous text messages on the day of the homicide, together with other related evidence, indicated that Cocomello had sold P.J. one-quarter pound of marijuana at about 4:00 p.m. that day. P.J. paid $800 U.S. for the marijuana but the money was, in fact, counterfeit. The deceased quickly suspected that at least $100 U.S. of the money paid in this transaction was counterfeit. He confronted the accused with this allegation and, by about 8:20 p.m. that same day, they appeared to have resolved the dispute. It was agreed, according to the text messages, that P.J. would pay Cocomello $70 Canadian for the $100 in U.S. counterfeit and that P.J. would purchase another ounce of marijuana from Cocomello for $200.

This apparent resolution of the dispute obviously did not hold up. When the deceased and the accused met at an intersection near the deceased’s home shortly after 9:11 p.m. that evening, ostensibly to consummate the agreed upon resolution, the homicide occurred. It was a relatively brief incident, probably occurring between 9:13 p.m. and 9:16 p.m.

[11] The more difficult factual issues concerning the offence relate to the fatal altercation itself. There was conflicting evidence in relation to this part of the case. In particular, P.J.'s account was that he was alone, he was unarmed, he got out of his car, Cocomello attacked him with a knife out on the street, P.J. disarmed Cocomello and fought back in self-defence and without the requisite intent for murder, while Cocomello tried to strangle P.J. The opposing body of evidence relied on by the Crown was to the effect that P.J. came to the meeting armed with a knife, he had an unknown accomplice with him in the car, P.J. was the aggressor who attacked Cocomello inside the car while the accomplice restrained Cocomello, and at the end of this attack Cocomello managed to escape from the car through the front window before eventually collapsing near his home and dying.

[12] I resolved these conflicting factual issues in favour of the Crown and rejected P.J.'s account. In addition, I found that the jury must have rejected P.J.'s claim of self-defence and must have rejected P.J.'s denial of the requisite intent for second degree murder, while also rejecting the Crown's theory of first degree murder. Relying on the eyewitness account of Ms. Cedillos, an innocent third party passerby, and on the circumstantial evidence (in particular, the pathology evidence concerning Cocomello's numerous injuries, P.J.'s lack of any visible injuries, and Cocomello's lack of any "defence wounds"), I was satisfied of the following:

• the murder took place inside P.J.'s car;
• P.J. had an accomplice who must have restrained Cocomello while P.J. inflicted 20 blows to the body and head of Cocomello, including 17 separate stab wounds with the knife;
• two of the stab wounds to Cocomello's chest and abdomen were deep. One of them likely involved a double thrust and it caused death;
• there were three or four blunt force blows to Cocomello's head, indicating that he was beaten about the head at some point;
• there was one particularly frightening knife wound to Cocomello's face, referred to as a "stellate" cut. It was close to Cocomello's eye and nose and it would have bled profusely. Its shape is associated with twisting the knife in the wound. It is suggestive of some kind of threat or intimidation occurring during the course of the attack;
• in all these circumstances, and given the lack of any visible injuries to P.J., he must have been the aggressor in the altercation;
• afterwards, P.J. disposed of the knife and his clothing. He also lied to the police, in particular, by providing a false alibi. In spite of being close to his parents, his sister and his girlfriend, P.J. did not confide in them during the approximately 5½ month period between the homicide and his eventual arrest on August 15, 2013.

[13] In relation to the jury's rejection of first degree murder, pursuant to both s. 231(2) ("planned and deliberate") and s. 231(5)(e) ("while committing … forcible confinement"), I reached the following conclusions (at paragraphs 18-20):

The jury’s rejection of “planning and deliberation” could simply mean that they were not satisfied that P.J. committed murder “as a result of a scheme or plan that had been previously formulated or designed”, or that “in advance of the altercation…he deliberated over that plan before proceeding with it”, as explained in the Charge (at pp. 57-61). It may well be that the prior dispute over the $100 U.S. counterfeit had been tentatively resolved prior to the meeting in the car at about 9:11 p.m., as the text messages suggest, but that some further disagreement or dispute arose in the car “on the sudden and without prior consideration,” and that this further dispute led to the murder. This scenario would be a second degree murder, without “planning and deliberation,” and P.J. should be sentenced on this basis.

As to whether the murder occurred “while committing forcible confinement,” the verdict of not guilty in relation to this form of first degree murder does not mean that there was no “confinement” in the car. I am satisfied, on the basis of the evidence summarized above, that the Crown proved the element of “confinement” beyond reasonable doubt. As I stated in my reasons on the Directed Verdict Motion, the far more difficult element for the Crown to prove in this case was that the act of “confinement” and the act of killing were “distinct criminal acts” and that the former was not merely “integral to” or “inherent in” the latter. See: R. v. Kimberley and Clancy (2001), 157 C.C.C. (3d) 129 a para. 108 (Ont. C.A.); R. v. Pritchard (2008), 2008 SCC 59, 236 C.C.C. (3d) 301 at paras. 27-29 (S.C.C.). The Charge (at pp.61-65) made it clear that the jury “have to find that any confinement in the car was distinct and independent from the act of stabbing that caused death and that it went on for some period of time that was not integral to the act of killing.” It was also put to the jury (at p. 159) that the defence position, if the jury accepted that “Mr. Cocomello was killed while confined in a car”, was that “first degree murder is still not available. The defence submits that…the stabbing and the confinement was the same act.” I would certainly have had a reasonable doubt on this latter issue, if trying the case without a jury, and would have acquitted of constructive first degree murder on this narrow basis.

For all these reasons, the verdict of the jury rejecting the two forms of first degree murder is not inconsistent with the findings I have made to the effect that P.J. confined Cocomello in the car and attacked him with a knife while an unknown accomplice restrained Cocomello. [Emphasis added.]

[14] A number of Victim Impact Statements were filed by the Crown. In particular, Sandra Cocomello read a poignant Victim Impact Statement concerning the death of her only child who stumbled home and died in her arms on the sidewalk while she called 911. In part, it was as follows:

There are simply no words to describe the pain and emptiness that I will forever feel without my only son in my life. Michael was the best son I could ever ask for, he was kind, caring and did his part as the man of the house. He had a great future ahead of him, he graduated high school, he got into college which he was suppose to start in fall of 2013 and he had recently (before he passed away) started training for a high paying union job. He was not perfect and yes he got into trouble as many kids do but I truly feel as though he was making an effort to distance himself from the negative things he had done and it was starting to reflect positively in his life, unfortunately it was too little too late. Although I did not agree with the negative things he had done, it does not mean that he was a bad person and it certainly does not mean that he deserved to be murdered in such a brutal and inhumane way. Not having him here is one thing but to think of the pain and agony he must have felt with the repetitive beatings and stabbings he endured truly breaks my heart every single time I think about it and it is a pain I will relive forever. I will never forget holding his dying body in my arms as I got to hug him and speak to him one last time.

My heart is empty, I feel as though there is nothing left for me, everyday I wake up and face the reality that he is gone. I feel like I am in a nightmare that I can never wake up from.

Since Michael was taken from me I have been seeing a psychologist, I am on anti-depressants, anti-anxiety medication as well as sleeping pills to help with the insomnia that I now suffer from. I have been greatly affected psychologically, I thought of suicide many times after he passed away and I will never be the same person that I was before, I will never be okay. All I can do now is hope that justice prevails because it is the only thing that will bring me any sort of happiness.

C. Facts Relating to the Offender

[15] P.J. was born on May 25, 1995. Accordingly, he was 17 years old at the time of the murder on March 4, 2013. His eighteenth birthday was about 12 weeks away. By the time of his arrest on August 15, 2013, he was 18 years old. He is now 20 years old and will be 21 in about two weeks.

[16] P.J. had a good upbringing. His parents immigrated from Grenada and P.J. was born in Toronto. He was raised by both parents in a loving and supportive family. He is particularly close to his mother and to an older sister named Rhonda. Both parents worked, as does Rhonda, and they would all have been good role models. A large number of supportive letters from family and friends were filed at the sentencing hearing. They all express positive views of P.J. They also illustrate the strong pro-social supports that he continues to enjoy from family and friends in the community.

[17] The family described P.J. as quiet and introverted. He did not do well in school. He was suspended in 2005, at age 10, for "conduct injurious to others." He was tested for learning disabilities and was found to have none. The recent s. 34 assessment at CAMH confirmed this finding. His mother took P.J. to see their family doctor at the start of high school because the school authorities had advised her to see "if he had any mental health issues." At this meeting with the family doctor, P.J.'s mother discovered that P.J. was smoking marijuana. P.J.'s mother and his sister Rhonda described P.J. as having "low self-esteem over the years," and that "at around age 15, Phillip began to experience sadness. He stated that sometimes he would cry and say that he could not stop feeling sad."

[18] The family doctor who saw P.J. at the start of high school referred P.J. to a psychiatrist, Dr. Rasasingham, at the Child and Adolescent Mental Health Unit of Humber River Hospital. This referral was due to concerns about possible depression. P.J. had six sessions with the psychiatrist, all in 2011 when he would have been 16 years old. P.J. was diagnosed with Social Anxiety Disorder and Generalized Anxiety Disorder. The latter diagnosis was confirmed by the current s. 34 assessment at CAMH. Dr. Rasasingham recommended that P.J. try treatment with medication but the family had no interest in this and the meetings with the psychiatrist ended.

[19] P.J.'s performance at school deteriorated further. He did not like high school and he stopped attending for several months in grade 10. This pattern continued in grade 11. He would get up in the morning and leave home, as if he were going to school, but he was in fact skipping school with his friends. He was suspended in 2012 for "illegal drugs." He completed only one course in grade 11 and two courses in grade 12. He stopped attending school altogether in 2012.

[20] At trial, P.J. testified that he worked in the summer of 2012 at a bakery, after he had dropped out of school. This was his last job. From the summer of 2012 until the present offence in March 2013, his time was spent hanging out with friends and family, looking for a job, and selling marijuana. His parents gave him some money but his main source of income was from drug trafficking. He would sell about an ounce of marijuana every week and earn between $50 and $80 in profit. He has no criminal record other than the conviction for the present offence.

[21] Since his arrest in August 2013, P.J. has been in custody at the Roy McMurtry Youth Centre (RMYC). There is a full time high school education program at RMYC that is run by the local School Board. All the youths who are in custody at RMYC are expected to attend school each day, although it is not compulsory. P.J. did attend school at RMYC and he completed all of his grade 12 credits, receiving consistently good marks of between 78% and 92%. His teachers at RMYC rated his learning skills and work habits as either excellent or good. The probation officer who prepared the PSR testified that P.J. was clearly proud of his success in completing high school at RMYC.

[22] P.J. was referred to the psychology department at RMYC. He worked with a psychological associate, Hélène Tremblay, during the two and a half years that he has been at RMYC. She would see him once or twice a week. She described him as "quiet and reserved" but also as a "warm and caring person, who has respect for authority, good interpersonal boundaries, prosocial values, and the ability to see both sides of an issue." In terms of his mental health, she concluded that he continues "to struggle with ongoing symptoms of depression and anxiety (e.g., very fatigued, increased self-criticism, appetite disruption, difficulties with attention and concentration, restlessness, agitation, and racing thoughts)." In her report to the Court, which was attached to the PSR, Ms. Tremblay stated that "there is often an element of negativity with respect to himself. His thinking is often tinged with self-reproach and loathing." She stated that he "continues to struggle to come to terms with his offence."

[23] During P.J.'s time at RMYC, Ms. Tremblay twice referred him to a psychiatrist due to his "feelings of depression and anxiety." The psychiatrist at RMYC prescribed anti-depressant medication. On one occasion, P.J. tried the medication for one day and then stopped taking it because he did not like its effects. On the second occasion, he took the medication for a longer period and there was some improvement in his mood and anxiety. However, he again stopped taking it before it could become fully effective and before its unpleasant side-effects could dissipate.

[24] Ms. Tremblay concluded that P.J.'s reluctance to try new ways "to manage his symptoms" was due to his "lack of hope that they would be effective." The s. 34 report from CAMH noted the following in this regard:

This sense of hopelessness, which is highly characteristic of individuals struggling with depression, has been described by various service providers working with Phillip. It was also noted that Phillip would potentially benefit from psychological intervention more if his significantly depressive mood was elevated with the use of medications.

[25] P.J. also worked with a social worker at RMYC, named Stephania D'Elia. She appeared to focus more on P.J.'s substance abuse issues. In this regard, the s. 34 report from CAMH noted the following:

Ms. D'Elia reported that Phillip has recently begun working on substance use issues in their sessions. Phillip was reported to indicate that he used substances, particularly marijuana, in order to manage the negative feelings of stress and anxiety, as he did not have any alternative coping strategies. Substance use was described as an escape for Phillip.

[26] One of the unit managers at RMYC, Jason Martins, testified at the sentencing hearing. He explained that RMYC operates on an "incentive program" whereby the youth in custody are constantly scored for their behaviour. There are 7 levels: bronze at the bottom; platinum at the top; and 5 levels of silver and gold in between. After 2½ years at RMYC, P.J. was ranked as "Gold One," which is exactly in the middle of the spectrum, with three levels above him and three levels below him. At one point, he had achieved platinum but he did not stay there for long. The staff all consult together concerning these rankings.

[27] Mr. Martins described P.J. as generally quiet. He would interact with his peers but not with staff. He would do what was required or expected of him but nothing extra. Mr. Martins agreed that P.J. participated in a lot of voluntary programs, after completing his grade 12 high school in June 2015. Numerous certificates were filed at the sentencing hearing, showing the programs he had completed, including one in "Construction Technology" (relating to a trade) and two in "Substance Use" and "Anger Management" (relating to behaviour).

[28] Mr. Martins also described six incidents that led to "misconducts." The first incident was on March 6, 2014. It involved possession of a 2" long screw with elastic and masking tape wrapped around its base. It resulted in loss of privileges. The second incident was on December 3, 2014 and was relatively minor. It involved letting another youth into his room, contrary to the rules. The third incident was on December 29, 2014. It involved a fight with another youth during a meal, as well as disobedience of staff who were trying to stop the altercation. P.J. and the other youth were handcuffed and taken to secure isolation. The fourth incident was on March 9, 2015. It involved a search of P.J. after he left the workshop area of RMYC. He was found with a piece of sandpaper secreted in his underwear. He would not disclose the reason why he was taking sandpaper out of the workshop in this surreptitious manner. The fifth incident was on December 1, 2015. It involved suspicion of using marijuana in his room. The sixth incident was on March 15, 2016. It also involved suspicion of marijuana possession in his room. The last three incidents all led to loss of privileges.

[29] Mr. Martins agreed in cross-examination that six "misconducts" over a 2½ year period at RMYC is about average, as some youth get more and some get less.

[30] The s. 34 assessment at CAMH was performed mainly by a psychologist, Dr. Julia Vinik, who received her Ph.D. in 2014. She was assisted by a staff psychiatrist at CAMH, Dr. Joe Beitchman. This was Dr. Vinik's first assessment in a murder case. Her diagnosis was as follows:

Phillip continues to have significant struggles with depression and anxiety, and presents, among other symptoms, with crippling worries about his future, hopelessness, and self-deprecating views. In fact, his current difficult circumstances relevant to the offence before the court appear to have intensified his mental-health struggles. Phillip's current clinical presentation continues to meet criteria for Generalized Anxiety Disorder. He also meets criteria for Major Depressive Disorder.

In the absence of effective coping strategies for his mood and anxiety difficulties, Phillip turned to substance use at a young age, which he clearly described as a way of self-medicating himself for the unpleasant effects of anxiety and depression. His use of marijuana in the community was concerning and at the time of the current offence he would have met criteria for a diagnosis of a Cannabis Use Disorder. Although initially, Phillip appeared to minimize the seriousness of his substance use, he appeared receptive when information was provided about the negative impacts of long term marijuana use as well as the availability of alternative methods to manage his highly unpleasant mental health symptoms. It is encouraging that Phillip recently began to engage with a social worker at the RMYC in substance abuse counseling. This exemplifies Phillip's openness to services and willingness to accept help, which he has demonstrated consistently during his time at the RMYC. During the current assessment, Phillip also expressed his willingness to attempt another medication trial to address his significant symptoms of anxiety and depression, which may then lead to better effectiveness of psychological interventions. [Bold type emphasis in the original.]

[31] Dr. Vinik testified that treatment of P.J.'s disorder would require medication, as the last sentence quoted in the above report suggests. She also testified that he needs a structured and supportive environment, like he has at RMYC. In her report, she stated that "Supervision is clearly an area of concern." Dr. Vinik tried to explain to P.J. that he "requires" medication, given the severity of his depression, and that he cannot fully benefit from psychotherapy unless his symptoms are treated with medication. The most effective treatment would be a combination of psychotherapy and anti-depressant medication. P.J.'s ultimate position was that he would "potentially consider" medication. Dr. Vinik was not aware of P.J. having yet taken the recommended medication.

[32] Dr. Vinik described P.J.'s symptoms as "negative and pessimistic views about self, the world, and the future. These types of cognitions are highly typical of individuals who are struggling with depression. Phillip indicated that he was always unsuccessful and things were going badly for him long before the offence. He indicated that he views the offence currently before the court as proof of the fact that he is a failure. He stated, 'Life is a game that I keep losing in.' He also stated that, when he thinks about his future, all he sees is failure. … Phillip did not endorse suicidal ideation but a passive sense of not wanting to exist." Dr. Vinik stated that smoking marijuana was P.J.'s means of coping with these symptoms of depression:

… It is apparent that Phillip's substance use while in the community was quite concerning. It is especially so because Phillip reported both during the current assessment as well as to collateral sources that he used substances to self-medicate against the unpleasant feelings of depression and anxiety. He stated that he smoked to get through the day.

It was noted by several RMYC staff that, recently, there was an incident where Phillip was suspected of using marijuana in the facility but this was never confirmed. The social worker working with Phillip at [RMYC] confirmed that he admitted to using marijuana that time.

[33] The psychiatrist, Dr. Beitchman, described similar symptoms of anxiety based on his interview with P.J., as follows:

Although he reports having anxiety attacks, this does not appear to be panic attacks, but rather severe anxiety. His most recent attack occurred while in his room and he states just thinking about things that he cannot control and problems that he cannot solve, his heart rate increases, he feels anxious, and the thoughts continue to race. He states that these feelings last about an hour or so and he feels helpless because he is not allowed to go out of his room during this period of time. He states that these attacks will happen virtually weekly.

Dr. Beitchman also described use of marijuana as P.J.'s means of coping with his symptoms, as follows:

Phillip states that he began smoking marijuana about the age of 15 and initially smoked about a joint a day. This gradually increased to two to three joints a day. He said that the most he has done has been about a quarter of an ounce. He was vague about the time frame during which he smoked a quarter ounce. He states that he smoked marijuana to get high and to help him feel mellow and he would smoke roughly three times throughout the day. He reports that his parents became aware that he had been smoking marijuana and said that they were upset and had told him to stop; however, his point of view was that it was not such a big deal and consequently did not stop. In the future, he is unsure about whether he will continue to smoke pot or not. He denies any withdrawal symptoms since he has been at [RMYC]. He believes that the pot helped him deal with stress.

[34] In terms of P.J.'s attitudes and beliefs, Dr. Vinik stated that, "collateral sources consistently described Phillip as a prosocial individual with no concerns regarding antisocial values or orientation. . . Phillip articulated highly prosocial values and emotions, including empathy and guilt for wrongdoing. He also expressed his respect for the law." However, the test administered by Dr. Vinik in relation to this issue, known as "Pride in Delinquency," resulted in scores "in the High Average range … indicating slightly higher antisocial beliefs and attitudes compared to other individuals seen in the clinic." Dr. Vinik agreed that P.J. exhibited anti-social values and behaviours at the time of the present offence.

[35] Dr. Vinik also interviewed P.J. extensively concerning the facts of the present offence. P.J. continued to relate the account that he had given in his testimony at trial to the effect that it was Cocomello who brought the knife to their meeting, that they met on the street outside his car, that P.J. was alone, that Cocomello attacked P.J. with the knife and then began choking P.J., and that P.J. fought back in self-defence and without the requisite intent for murder.

[36] After the release of my February 18, 2016 Reasons for Judgment, in which P.J.'s account of the murder was rejected, Dr. Vinik had a follow-up meeting with P.J. She put the facts relating to the offence to P.J., as set out in my Reasons. He continued to maintain his account of the relevant events and he set out a lengthy series of explanations and rationalizations for any contrary facts. Dr. Vinik concluded:

Despite in-depth interviewing focused on the summary of the evidence, Phillip continued to maintain his previous account of the offence. The reason for Phillip's insistence on his version of events, despite evidence to the contrary, is unclear at this time. It is possible that once sentencing is complete and Phillip is engaged in therapeutic services, he will be able to explore this issue and fully come to terms with his role in the offence.

In summary, several opportunities were provided for Phillip during this interview to take full responsibility for his actions during the offence. He was also challenged regarding his version of events in the face of the available evidence. Nevertheless, Phillip continues to minimize his culpability and maintains that his actions were in the context of defending himself during an altercation that was initiated by the victim and that he acted alone. As was outlined in the Section 34 assessment report, Phillip continues to maintain that his actions began in the context of self-defense but he does admit that, during the course of the altercation, he lost control of his actions. Despite the fact that Phillip does not accept full responsibility for his role, it is important to note that Phillip does take responsibility for the death of the victim and expresses a great deal of regret and remorse for the loss of life and the impact on the victim's family.

[37] Dr. Vinik testified that P.J.'s unwillingness to admit the facts relating to the offence is an area of concern that needs to be addressed. She described it as an important aspect of successful treatment. She concluded as follows on this point:

In the process of therapy, an additional goal should be to help Phillip accept full responsibility for his actions and his role during the offence currently before the court and he should be assisted in incorporating this into his narrative of these events. The reasons for his insistence on maintaining his version of events, despite evidence to the contrary, should also be explored in therapy.

[38] In her report, Dr. Vinik briefly addressed the issue of any link between, on the one hand, the criminal offence in this case (a murder) and, on the other hand, P.J.'s mental health and use of marijuana as his chosen means of addressing his symptoms. She stated the following:

His criminal behaviours occur in the context of his long-standing mental health struggles. His reliance on substance use to self-medicate and cope appeared to play a central role in his involvement in selling marijuana. It is also important to note that Phillip's associations with antisocial acquaintances in the community also appeared to be a concern at the time of the offence and should be addressed moving forward.

[39] In her testimony at the sentencing hearing, Dr. Vinik expanded on this topic. She made two points concerning any link between present mental disorders and past criminal behaviour. First of all, she testified that it is difficult to reach any definitive conclusion as to whether her present diagnosis of P.J. would also have been made at the time of the offence, in early 2013, because she did not assess him at that time. However, she testified that it can be concluded from Dr. Rasasingham's diagnosis in 2011, and from the symptoms described during the relevant time period, that P.J. was "not well" at the time of the offence. Second of all, she testified that mental illness such as P.J.'s anxiety and depression disorders are not themselves "criminogenic factors" that cause people to lose control or to commit crimes. However, they do cause people to interpret events negatively and to perceive danger, so there may be an indirect causal link between P.J.'s depression and anxiety, and the present offence. For example, she testified that he could have been seeing the incident with Cocomello "through a more negative and anxious lens." P.J. did tell her that he was "guarded" and "stressed" when he met with Cocomello that night, because of their dispute over counterfeit money. Although she could not be sure one way or the other, Dr. Vinik thought it was "probable" that P.J.'s anxiety and depression had an impact on how he perceived the situation with Cocomello. In order for her to properly evaluate this issue, it would be important to get an accurate and reliable account of the relevant events from P.J.

[40] In terms of P.J.'s maturity or immaturity, Dr. Vinik testified that P.J.'s mother and his sister Rhonda both described P.J. as "mature for his age." Dr. Vinik testified that there were aspects of P.J.'s behaviour that seemed mature and so she agreed with the family. However, she also testified that P.J. made immature choices in other areas, such as his dangerous lifestyle as a drug dealer. Dr. Vinik's view was that P.J. had matured during his 2½ years in the structured setting at RMYC and that he was "age appropriate."

[41] Dr. Vinik conducted a recidivism risk assessment test with P.J., known as the "LS/CMI." The result was that he scored at "the highest end of the low risk range." She stressed in her testimony that the test evaluated P.J.'s current risk, after 2½ years in the structured setting of RMYC. His recidivism risk when at liberty in the community, at the time of the present offence, would have been higher and "was likely in the moderate range." Although mental disorder is not directly linked to recidivism, Dr. Vinik testified that treatment of P.J.'s present disorders would have an indirect impact on the risk of recidivism. This is because certain "criminogenic factors," like poor choice of peers and anti-social values, which do relate to recidivism, can be ameliorated by treatment of an underlying mental illness.

[42] Dr. Vinik recommended a "youth sentence" because she believed it "to be the path through which he will have access to services that will best address his mental health and remaining criminogenic needs and assist in his process of rehabilitation." In particular, she recommended an IRCS sentence because of the enhanced treatment resources associated with that program. Dr. Vinik acknowledged that she had only worked in the youth criminal justice system and she had no knowledge as to what kinds of treatment programs and resources are available in the adult system.

[43] At the end of her examination-in-chief, Dr. Vinik gave evidence concerning the length or duration of the treatment and supervision that P.J. required. She testified that his present disorders may be life-long and so the necessary length of treatment cannot be predicted. Treatment may be effective sooner or it may take longer. The best treatment is a period of immediate intensive therapy followed by "relapse prevention," which is then followed by "maintenance" therapy involving ongoing meetings with a psychotherapist. Dr. Vinik agreed that ongoing supervision of P.J. would be necessary, to ensure that he is following through with the program of treatment. Dr. Vinik could not say how long this period of ongoing supervision would have to continue. This is because individual responses to therapy vary from one individual to another.

[44] The IRCS report was prepared by P.J.'s probation officer and it was approved by the Provincial Director of the Ministry of Children and Youth Services. It drew heavily on the other reports summarized above, in particular, on the s. 34 assessment. The report concluded as follows:

… he will require intensive support to deal with his mental health issues but also to target specifically Phillip's responsibility for his actions and his role during the offence.

Phillip's anxiety and depression will negatively affect his functioning if not treated. His depression has made him have negative feelings and attitude about his future and life and his anxiety has decreased his capacity of pursuing educational and leisure activities. He has had to resort to self-medication with drugs to deal with his symptoms.

Phillip has been diagnosed with significant mental health issues that require ongoing and long term treatment in a structured facility. At time of sentencing, he will be almost 21 years old which means that, according to section 89(1) of the YCJA, he can no longer be placed in a youth facility, where he could have benefited from the specialized services and programs to address his needs.

Phillip would benefit from an adult facility that will allow him to access specialized services through a Social Worker, a Psychologist and/or a Psychiatrist. Accessing individual counselling services will allow him to work on the mental health issues identified in this assessment and prepare him for his reintegration into the community.

[Emphasis added.]

[45] P.J. made a poignant statement at the end of the sentencing hearing, turning towards Cocomello's family and friends and expressing what I took to be genuine remorse and regret. He was crying while he stated the following:

I want to apologize for taking a life that was dear to you. I never wanted it to end this way and I feel horrible about it. He was a young guy like I am, kinda quiet and many times I've wished that it was me instead who should've passed. It was too early for him to die. I've thought about the situation many times and wanted it to end differently.

Losing him must be devastating to you all. I don't know what I can do to make things better, but if I could switch places with him, then I would.

I don't know your struggle but I can imagine that it must be really tough to lose someone who's close to you and I don't know how I would cope if I were in your position. I can tell he meant a lot to you and that you'll miss him always.

I don’t have the words to say how badly I feel for what I've put you through. I'm sorry for my mistakes, I'm sorry for Michael's death and I wish I could go back in time and change things so that he was still here. I made a terrible mistake and never wanted the situation to turn out this way.

D. Analysis

[46] The main issue on this sentencing hearing is whether P.J. should receive a "youth sentence" or an "adult sentence." The two stark alternatives are a 7 year maximum "youth sentence" (including a maximum 4 year custodial portion) or a minimum "adult sentence" of life imprisonment with parole eligibility after 7 years.

[47] These widely disparate options become even more challenging, when and if credit for pre-trial custody is factored into the sentence. P.J. has been in pre-trial custody since his arrest on August 15, 2013. As a result, he has now served over 2 years and 8 months prior to being sentenced. If he receives any credit for this pre-trial custody, even on a minimum or modest ratio of 1:1, the maximum custodial portion of a "youth sentence" would be 1 year and 4 months. As a result, he would be released into the community at age 22 and he would complete his sentence at age 25. In the case of an "adult sentence" of life imprisonment, P.J.'s seven year period of parole ineligibility would run from the date when he first entered custody, namely, August 15, 2013. Accordingly, he would be parole eligible in 4 years and 4 months, that is, at age 25. However, if released on parole, he would remain under the control and supervision of the Parole Board for life. See: Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 120; Criminal Code, ss. 745(d) and 746(a). I will return to this issue of credit for pre-trial custody later in these reasons.

[48] The statutory test for determining whether a "youth sentence" or an "adult sentence" should be imposed has evolved somewhat over the years. The original provisions, when the Y.C.J.A. first came into force on April 1, 2003, placed the onus on the accused in relation to a "presumptive offence" like murder, to satisfy the court that "a youth sentence … would have sufficient length to hold the young person accountable for his or her offending behaviour." See: ss. 2, 62, 63, 71 and 72 of the Y.C.J.A., S.C. 2002, c. 1. The Supreme Court of Canada struck down the reverse onus aspect of these complex provisions in 2008 on the basis that they violated s. 7 of the Charter of Rights. See: R. v. D.B. (2008), 2008 SCC 25, 231 C.C.C. (3d) 338 (S.C.C.).

[49] Although the reverse onus in s. 72(2) was struck down, the statutory test set out in s. 72(1) remained in place until the 2012 amendments to the Y.C.J.A. Most of the leading cases were decided in this hiatus period, between the D.B. decision in 2008 and the amendments in 2012. During this period, the reverse onus no longer existed but the statutory test was in the same terms as in the original enactment. That statutory test was as follows:

72.(1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and

(b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

[50] As part of Bill C-10, Parliament amended various Y.C.J.A. provisions, including s. 72(1). The new provisions came into force on October 23, 2012. See: S.C. 2012, c. 1, s. 183(1). Given that the present offence took place on March 4, 2013, the parties agree that it is this current version of s. 72(1) that applies in the present case. It provides as follows:

72. (1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that

(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

[51] Section 72(2) now places the onus on the Crown in all cases where an adult sentence is sought. The Crown must satisfy the court that both of the two s. 72(1) criteria have been met. As a result of the 2012 amendments, the basic test remains whether "a youth sentence … would not be of sufficient length to hold the young person accountable for his or her offending behaviour." What has changed is two-fold: first, the old list of relevant considerations in s. 72(1) has been removed ("the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant"); and second, s. 72(1) now explicitly requires the Crown to rebut "the presumption of diminished moral blameworthiness."

[52] Neither party submitted that these two new aspects of s. 72(1), introduced in the 2012 amendments, had fundamentally altered the post-D.B. approach to Y.C.J.A. sentencing, as set out in the leading authorities. The central issue remains whether a "youth sentence" is or is not of "sufficient length to hold the young person accountable." The key principles of Y.C.J.A. sentencing remain those found in ss. 3 and 38 (although, as will be noted below, these provisions have now changed to some extent). The list of relevant considerations set out in the old s. 72(1) was arguably redundant, as any sentencing court would inevitably regard these explicitly listed factors as relevant when assessing the appropriateness and sufficiency of a "youth sentence." Furthermore, "the presumption of diminished moral blameworthiness" was always found in s. 3(1) of the Y.C.J.A., although it was further strengthened by the amendments to s. 3(1) introduced in 2012 as a result of the Supreme Court's decision in D.B. It is arguable that it was always relevant and necessary to rebut that presumption, when deciding the s. 72 issue of "youth sentence" versus "adult sentence," although this was not explicitly stated in s. 72 until the 2012 amendments.

[53] One potentially significant aspect of the 2012 amendments was the addition of denunciation and deterrence to s. 38. The new s. 38(2)(f) provides as follows:

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

(i) to denounce unlawful conduct, and

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

There was no similar provision in the original 2003 legislation. It is noteworthy, however, that s. 38(1) sets out the fundamental purpose of Y.C.J.A. sentencing and it has remained unchanged. It still provides as follows:

38. (1) 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.

It is also noteworthy that the new s. 38(2)(f) expressly makes the objectives of denunciation and deterrence "subject to" s. 38(2)(c) which has remained unchanged, as follows:

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

[54] In my view, the central focus of s. 72 remains on the principle of "accountability." Indeed, s. 3(1)(a) and s. 38(1) also refer to "accountability" as one of the primary objectives of the Y.C.J.A. The leading authority in Ontario as to the meaning of this term, in the s. 72 context, is R. v. A.O. (2007), 2007 ONCA 144, 218 C.C.C. (3d) 409 at paragraphs 39-52 (Ont. C.A.). Although this decision was influenced, to some extent, by the exclusion of denunciation and deterrence from s. 38 in the 2003 legislation, much of what the Court said about s. 72 remains relevant today. After setting out ss. 3, 38 and 72, the Court (O'Connor A.C.J.O., Rosenberg and Cronk JJ.A.) stated the following:

The combined effect of ss. 72, 3 and 38 of the YCJA is to identify accountability as the purpose that the youth court judge must consider when deciding an application to impose an adult sentence on a young person. Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society. The purpose of accountability in this context would seem to exclude accountability to society in any larger sense or any notion of deterrence.

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. See for example, R. v. Barnier, [1980] 1 S.C.R. 1124 at 1135-36; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para. 134.

In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by Lamer C.J.C. in R. v. M. (C.A.), (1996), 105 C.C.C. (3d) 327, at paras. 80 and 81:

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 incor- porates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blame-worthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. [Underlining in original, italics added.]

In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, "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". We see no other rational way for measuring accountability.

The need to consider the normative character of an offender's behaviour necessarily requires the court to consider societal values. But what the court cannot do is add on to a youth sentence an element of general deterrence or denunciation. …

This view of the meaning of accountability is also consistent with the other principles of sentencing to which the youth court judge is directed under s. 38, especially those set out in ss. 38(3)(a) and (b): degree of participation, harm to the victim and whether the harm was intentional or reasonably foreseeable. These principles speak to retribution as defined by Chief Justice Lamer in R. v. M. (C.A.), supra.

Youth court judges have reached similar conclusions as to the meaning of accountability in s. 72. As Blacklock J. said in R. v. J.M., [2004] O.J. No. 2796 (QL) at para. 26, the sentence must "be long enough to reflect the seriousness of the offence before the Court and the accused's role in it", even taking into account the offender's increased dependence and decreased maturity. We read this as recognition of the need to take into account the normative character of the offender's conduct. And in R. v. Ferriman, [2006] O.J. No. 3950 (QL) at para. 38, McCombs J. said that for a sentence to hold a young person accountable it must achieve two objectives:

It must be long enough to reflect the seriousness of the offence and the offender's role in it, and it also must be long enough to provide reasonable assurance of the offender's rehabilitation to the point where he can be safely reintegrated into society. If the Crown proves that a youth sentence would not be long enough to achieve these goals, then an adult sentence must be imposed.

[55] It could be argued that the above approach to the meaning of "accountability" is too restrictive, given that "societal values" such as "denunciation" and "deterrence" have now been included in the new s. 38(2)(f). It is unnecessary to decide this issue on the facts of this case. Applying the traditional approach to "accountability" set out in R. v. A.O., supra, the issue in the present case is whether a maximum "youth sentence" of 7 years (including a maximum 4 year custodial term) is a "meaningful consequence," in the sense that it promotes P.J.'s "rehabilitation and reintegration into society" and reflects "the moral culpability of the offender," that is, the seriousness of the offence and P.J.'s role in that offence. In addition, the traditional s. 72 factors such as "age, maturity, character, background and previous record" must be taken into account in determining whether the "presumption of diminished moral blameworthiness" has been rebutted. This presumption is critical when evaluating "moral culpability," as that sentencing value is explained in A.O., supra.

[56] In my view, the most relevant considerations in this case are the following:

• The seriousness of the offence is a significant consideration because murder is the most serious offence in the Criminal Code. Its seriousness is reflected in the consequential harm to Cocomello and to his community of friends and family. Its seriousness is also reflected in the two significant mental elements or fault elements required by s. 229(a). They have been described as varying so little "as to be indistinguishable," in terms of culpability. See: R. v. Cooper (1993), 78 C.C.C. (3d) 289 (S.C.C.); R. v. Nygaard (1989), 51 C.C.C. (3d) 417 (S.C.C.). The jury must have been satisfied that P.J. caused Cocomello's death and that he possessed one of the two highly culpable states of mind set out in s. 229(a);
• The role that P.J. played in the offence was the most serious known to the law, that is, he was the principal. The fact that an accomplice was also involved aggravated the offence as two perpetrators acting in concert are generally more capable of successfully carrying out an offence than one person acting alone;
• P.J.'s age at the time of the offence was very close to 18. In addition, he was described as being either "mature" or "age appropriate";
• P.J.'s mental disorders "probably" played a contributing role in the offence, as explained by Dr. Vinik. Treatment of these disorders will play an indirect role in reducing the risk of recidivism in the future, as also explained by Dr. Vinik. Successful treatment of P.J.'s disorders will require a long term regime of both treatment and structured supervision, according to both Dr. Vinik and the authors of the IRCS report. The exact length of this long term treatment and structured supervision cannot be predicted. The disorders may be life-long and success in their treatment will depend on P.J.'s response;
• Two important aspects of a successful treatment regime include taking anti-depressant medication and accepting "full responsibility for his actions and his role during the offence," according to Dr. Vinik. To date, P.J. has not agreed to or undertaken a course of treatment with anti-depressant medication and he has not accepted full responsibility for his actions and for his role during the offence. His historical preference has been to use marijuana in order to reduce his symptoms. His two most recent "misconducts" at RMYC reflect this apparent ongoing preference. In all these circumstances, the success and duration of the proposed treatment regime remain uncertain;
• The 2½ year period that P.J. spent in pre-trial custody at RMYC has resulted in a somewhat mixed or uneven picture. On the one hand, he deserves significant credit for completing high school with good marks, for completing a number of additional programs, and for impressing some of the staff on some occasions. On the other hand, he has not yet agreed to or carried out the recommended treatment with anti-depressant medication. In addition, his over-all behavioural performance at RMYC was middling and some of his "misconducts" raise real concerns (in particular, he apparently fashioned a weapon, he secreted sandpaper from the workshop on his person, and he refused to account for this conduct). When these aspects of P.J.'s behaviour at RMYC are combined with his ongoing unwillingness to acknowledge and address the facts of the present offence, for example, by explaining the alarming "stellate" cut beside Cocomello's eye and nose, there remain real concerns about P.J.'s present values and about his present behaviour;
• The ongoing support provided by his strongly pro-social family is a significant asset in P.J.'s path towards rehabilitation. The extent to which they can assist him and can influence him in committing to a long term successful regime of treatment and supervision remains uncertain;
• P.J.'s lack of any prior Y.C.J.A. record is undoubtedly a positive factor, in terms of his prospects for rehabilitation. In addition, I am satisfied that he expressed genuine remorse at the end of the sentencing hearing. However, these otherwise positive considerations are somewhat attenuated by the fact that P.J. was undoubtedly living a criminal lifestyle at the time of the offence, involving counterfeit money and drug dealing, and by the fact that he has not fully acknowledged his role and responsibility in the offence.

[57] Taking all of the above considerations into account, I am satisfied that the Crown has met its s. 72 burden. The combination of P.J.'s age, his maturity, and his relatively sophisticated conduct at the time of the offence and after the offence, all convince me that the "presumption of diminished moral blameworthiness" has been rebutted. The combination of the very serious offence, P.J.'s major role in that offence, his failure to undertake the recommended course of treatment for his underlying mental disorders in the past 2½ years, and the uncertain length and prognosis for the required period of structured supervision and treatment of those disorders, all convince me that a 7 year "youth sentence" would not be "of sufficient length to hold [P.J.] accountable" for this offence or to achieve his "rehabilitation and reintegration into society."

[58] P.J. has had the benefit of the structured RMYC setting for the past 2½ years and the benefit of reasonably intensive training, support, and therapy from the staff at RMYC. He has made some progress but his underlying disorders remain essentially untreated at the present time and the required length of treatment and supervision is unknown. His very experienced counsel made the realistic concession that P.J.'s progress to date has been mixed. In these circumstances, and given the very serious nature of the offence, it would not be appropriate to terminate all supervision and control of P.J. in 7 years' time, that is, at age 27. This is the inevitable effect of a "youth sentence" if no credit is given for pre-trial custody.

[59] In R. v. Todorovic (2014), 2014 ONCA 153, 306 C.C.C. (3d) 171 at para. 42 (Ont. C.A.), the Court upheld an "adult sentence" for a girl who was 15 years old when she committed first degree murder by counseling and encouraging a 17 year old boy to commit the offence. She was a first offender. Rosenberg J.A. gave the judgment of the Court and stated:

…the amount of pre-sentence custody had no real impact on the appropriate disposition. In view of his findings, this is not a case where the trial judge would have imposed a youth sentence had he believed that the appellant would have been subject to supervision until she was 27 rather than 25. The trial judge’s proper concern was that under a youth sentence, the appellant would be free of supervision of any kind once she reached her mid-20s. Whether that was age 25 or 27 was of no moment. The important point was that just when her personality should be fully developed, the appellant would no longer be subject to any kind of supervision, no matter how dangerous she was. I agree with the trial judge’s concern that the appellant would be left free of supervision where there was yet to be an accurate diagnosis and any effective treatment programme developed. The trial judge was rightly concerned that imposing a sentence with a definite end period for supervision would not adequately protect the public. That factor together with the other sets of factors mandated by former s. 72 required imposition of an adult sentence so that the appellant would be under supervision of the parole board. [Emphasis added.]

[60] In the present case, unlike Todorovic, there is "an accurate diagnosis" of P.J.'s disorders. However, like Todorovic, the existence of an "effective treatment program" and its length remain uncertain. As a result, "imposing a sentence with a definite end period for supervision would not adequately protect the public."

[61] In the case of Todorovic's co-accused, R. v. Bagshaw, [2009] O.J. No. 4123 (S.C.J.), aff'd [2010] O.J. No. 5482 (C.A.)](https://www.canlii.org/en/on/onca/doc/2010/2010onca5482/2010onca5482.html), Nordheimer J. made a similar point about the connection between the length of the sentence and the need for "continued supervision":

A period of incarceration of sufficient length is necessary to determine whether the progressive path, that David has only recently embarked on, will continue. Of greater importance is that continued supervision of David’s conduct is required to ensure that any and all necessary counselling and treatment will be maintained after he leaves the structured setting of a correctional facility. This is required both for David’s interests and for society’s interests. Only an adult sentence will accomplish both of these goals and at the same time properly reflect the gravity of the offence. [Emphasis added.]

In my view, the same reasoning applies in the case at bar.

[62] At present, there is some uncertainty in the law concerning credit for pre-trial custody in Y.C.J.A. sentencing. Some cases have held that the statutory language in s. 38(3)(d) is mandatory and that some credit must be given. See: R. v. T.B. (2006), 206 C.C.C. (3d) 405 at para. 25 (Ont. C.A.); R. v. D.S. (2008), 2008 ONCA 740, 93 O.R. (3d) 211 (C.A.); R. v. J.S.R., [2009] O.J. No. 1662 (S.C.J.), aff'd (2012), 2012 ONCA 568, 291 C.C.C. (3d) 394 (Ont. C.A.); R. v. Bagshaw, supra at paras. 9-13; R. v. S.B., 2014 ONSC 3436, [2014] O.J. No. 2751 at para. 49. On the other hand, there are cases holding that the trial judge has a discretion to give no credit for pre-trial custody, effectively increasing the length of any maximum "youth sentence" by the amount of the pre-trial custody. See: R. v. D.W., 2008 ONCA 268, [2008] O.J. No. 1356 (C.A.); R. v. Logan (2009), 2009 ONCA 402, 97 O.R. (3d) 270 at para. 19 (C.A.).

[63] In light of the conclusions already set out above, it is unnecessary to decide whether P.J.'s pre-trial custody should or should not be credited against a "youth sentence." Even if no credit were given for his 2 years and 8 months of pre-trial custody, a "youth sentence" would require P.J.'s release from custody in 4 years (at age 24) and would require termination of all supervision and control in 7 years (at age 27). For the reasons already set out above, this would not be an appropriate sentence either for the protection of the public or for P.J.'s rehabilitation and reintegration into society.

[64] Given that an "adult sentence" is necessary, s. 76 requires the Court to determine where the sentence should be served. P.J. will be 21 years old in about two weeks. The evidence of Rhonda Frank, from the provincial Ministry of Community Safety and Correctional Services, was to the effect that young persons convicted under the Y.C.J.A. can and do serve sentences of over 2 years in provincial institutions. The statistical evidence for 2013/2014 was that 1,078 inmates in the provincial system were serving federal sentences, that is, sentences of over 2 years. This amounted to 4.3% of the provincial inmate population during that year. In addition, Ms. Frank gave evidence about the intensive treatment and training programs that are available at the Algoma Treatment and Remand Centre (Algoma) in Sault Ste. Marie and at the Ontario Correctional Institute (O.C.I.) in Brampton. Algoma is a more secure facility than O.C.I. and inmates will often take programs offered at Algoma first and will then proceed to O.C.I. when they are closer to their parole eligibility date, because the programming at O.C.I. prepares inmates for release. Both facilities have teams of social workers and psychologists on staff, and they have psychiatrists on contract, such that P.J.'s disorders could be treated. Ms. Frank testified that O.C.I. is located next to RMYC and that both institutions follow a similar model of training and treatment in response to the individual's criminogenic risks and needs.

[65] I am satisfied that P.J. should serve his sentence in the provincial reformatory system and I recommend that he be classified to Algoma and/or to O.C.I. (which is located close to his parents' home) so that he can receive the intensive treatment and training available at those institutions. If P.J. is motivated and does well in the programs at these institutions, he will be a good candidate for parole in 4 years and 4 months (at age 25). When and if he is released, the Parole Board will maintain ongoing supervision and control of P.J. in the community.

E. Conclusion

[66] For all the reasons set out above, P.J. is sentenced to the mandatory minimum "adult sentence" of life imprisonment for second degree murder, with parole eligibility after 7 years. Pursuant to s. 76(1) of the Y.C.J.A., he will serve this "adult sentence" in a provincial reformatory. I recommend that he be classified to Algoma Treatment and Remand Centre and/or to O.C.I., in light of the s. 34 evidence of mental disorder heard at P.J.'s sentencing hearing.

[67] I would like to thank counsel for their thorough and effective advocacy at this difficult sentencing proceeding.

M.A. CODE J.

Released: May 10, 2016