CITATION: R. v. F.O. 2016 ONSC 7654
COURT FILE NO.: YC 30000005-14
DATE: 20161207
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
S. Heeney, for the applicant
Applicant
- and -
F.O. (a young person under the Youth Criminal Justice Act, S.C. 2002, c. 1)
G. Zoppi & C. Pearce, for the respondent
Respondent
HEARD: November 25, 2016
Nordheimer J. (orally):
[1] On March 17, 2016, a jury found the respondent guilty of two counts of second degree murder, one count of attempted murder, one count of aggravated assault, and one count of reckless discharge of a firearm. The Crown now applies to have an adult sentence imposed.
A. Background
[2] The convictions arise out of the events of July 16, 2012. On that day, a community barbeque/block party was being held on Danzig Street in the Scarborough area of Toronto. By estimates, more than two hundred people were in attendance. At approximately 10:40 p.m., gunfire broke out. Close to thirty shots were fired. Two people were killed – fourteen year old Shyanne Charles and twenty-three year old Joshua Yasay. More than twenty others were wounded, including a twenty-two month old child. It remains the worst case of a mass shooting in this city’s history.
[3] In terms of the factual findings that are necessary for the purposes of sentencing, I must follow the approach set out in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 where McLachlin C.J.C. said, at para. 16:
The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict.
[4] I take the following facts as necessarily flowing from the jury’s verdict, or that are otherwise proven on the evidence that the jury heard. The respondent came to the block party armed with a gun, that he obtained as a result of efforts that he made in the days before the party. Danzig street, and the related housing complex, is part of the Galloway area of Scarborough. As the evidence alluded to, there is a long standing rivalry between some individuals who reside in the Galloway area, and some persons who reside in the Malvern area of Scarborough. The Chester Le area is another part of Scarborough and individuals from that area are perceived to be aligned with individuals from the Malvern area. Consequently, individuals from Chester Le would also be at odds with the Galloway group. The respondent is from the Chester Le area.
[5] Upon arriving at the party, the respondent encountered a young man, by the street name of Gifted, who was one of the organizers of the block party. Gifted, his younger brother (who went by the street name of Gritty), and perhaps others, were checking people coming to the block party to determine where they were from and, depending on the answer to that question, whether they were welcome at the party. Prior to this encounter involving the respondent, others who came to the party had been checked and, in a number of instances, those persons were told that they were not welcome at the party, and had to leave.
[6] The respondent and Gifted had an exchange of words. I accept, based on the evidence at trial, that Gifted produced a handgun and told the respondent to leave. An older man, who was close by (but whose identity is unknown), told Gifted to put the gun away because there were children around. Gifted returned the handgun to a bag he was carrying. It is at this point that the respondent produced his handgun and fired at least two shots at Gifted, from close range, striking him twice. As he fell to the ground, Gifted again produced his handgun and started to fire at the respondent. At least eleven shots were fired from this gun, one of which struck the respondent in the leg. At the same time, another male, who was apparently associated with Gifted (and whose identity is also unknown), produced an Uzi-style submachine gun and also opened fire. At least fourteen shots were fired from the Uzi. It is worth noting that none of the three guns, that were used in this gunfight, were ever found at the scene, or thereafter for that matter.
[7] It was shots from Gifted’s gun, and the Uzi, that killed Shyanne and Joshua. Nevertheless, under the provisions of s. 229(c) of the Criminal Code, the respondent could be, and was, held equally responsible for these two deaths because he engaged in a dangerous act, that is, he instigated the gunfire that led to those deaths, in circumstances where he knew, or foresaw, that his dangerous act would likely cause death. It was also bullets from these two guns that hit most of the persons who were wounded. That said, as was also found by the jury, it was a bullet from the respondent’s gun that hit one bystander, also a young lady.
[8] The respondent attempted to leave the scene but, due to the wound to his leg, he did not get far. A responding police officer found the respondent and took him to an ambulance. The respondent was taken to hospital, where he was treated. At the same time, friends of Gifted attempted to take him to a hospital by car but, because of the chaotic situation, they did not get far before their car collided with another vehicle. Somewhat ironically, the car that they struck was an unmarked police car that had responded to the sounds of gunshots. Gifted was eventually taken to an ambulance that transported him to a hospital.
[9] Approximately six weeks later, while the respondent was riding a bike near his home in the Chester Le area of Scarborough, a lone male approached the respondent and fired one shot at him. This lone male was subsequently identified as Gritty. It is clear that Gritty intended to kill the respondent but, apparently, his gun jammed such that Gritty only managed to fire the one shot. That shot, coincidentally, also struck the respondent in one of his legs. The respondent managed to run home. Gritty ran off, but was eventually arrested for this shooting.
[10] Following on the investigation of this shooting, the police obtained information that connected the respondent back to the shooting at the Danzig block party. The respondent was eventually charged with murder and other offences arising from the shooting at Danzig.
B. The central issue
[11] The issue that is now before me is whether the respondent should receive a youth or an adult sentence for these offences. 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:
(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.[^1]
[12] 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), 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.
[13] I begin by setting out the respective sentences for second degree murder as between the YCJA and the Criminal Code. I refer only to the second degree murder convictions, since the sentences for the other offences will be lesser and concurrent to the sentence for second degree murder, and thus play a lesser role in the determination of this issue. Section 42(2)(q) of the YCJA provides that the maximum sentence that may be imposed on a young person, on a conviction for second degree murder, is seven years, comprised of a period of custody not to exceed four years, followed by a placement in the community under conditional supervision for up to three additional years. If sentenced as an adult, the penalty for second degree murder, under the Criminal Code, is life in prison. Since the respondent was seventeen years old at the time of the commission of the offence, pursuant to s. 745.1(b) of the Criminal Code, parole eligibility would be set at seven years. It is of some significance that an adult sentence also comes with lifetime supervision, after an offender is released from custody. Among other reasons why that is significant, is that that supervision can provide a mechanism whereby any necessary treatment, or programming, or management, can be maintained.
[14] I repeat that the central question is to determine whether or not a youth sentence would have sufficient length to hold the respondent accountable for his offending behaviour. In R. v. O.(A.), 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), 1996 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.) 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.
[15] It is against the backdrop of these principles that I approach my determination of this application.
[16] Before turning to the three factors that I must consider, however, I want to make reference to the victim impact statements. I have received a number of victim impact statements from members of the families of the two young people who were killed, some of which were read to me in court, while others were simply filed.
[17] I will not pretend that I can truly appreciate the extent of the impact that the loss of a young girl, or a young man, has on their parents, on their brothers and sisters, and on other family members. I do realize, though, that the grief that remains with them, and the emptiness that they continue to feel, is deep and it is permanent. Violence, in this case unthinkable violence, does not discriminate in the harm that it spreads. It is harm that impacts most significantly on the people closest to the victims, but it also impacts on our entire community, particularly when individuals who are so young, and so promising, are lost to us.
[18] None of that changes the reality that, whatever decision I make respecting the respondent, will not change the world that now exists for the loved ones of the victims. The justice system has a role to play in redressing the harm that has been caused, but it is a very limited role. Nothing in our justice system, or any other justice system, could ever possibly right such a terrible wrong.
[19] That reality does not mean, however, that we should ever become complacent, or indifferent, about these acts or their consequences. Nor should we ever fail to take steps, that are available to us as a society, in an effort to prevent such events from being repeated. As one of the victims in this case alluded to, we must never allow cases, such as this, to be treated as just another headline in this city.
[20] Let me now turn to the first factor under s. 72(1).
(i) The seriousness and circumstances of the offences
[21] I have already set out the basic facts underlying these convictions. From those facts, the seriousness of these offences should be readily apparent. The respondent went to this block party armed with a handgun. I conclude that he took the handgun with him because he was attending a party in an area of Scarborough where he knew he might not be welcome. He further knew that, if he encountered persons who might take issue with him attending the party, those persons would very likely also be armed. The respondent was not alone in this mind set. At trial, another young man acknowledged that he too had gone to the party armed with a handgun, precisely because of his concern that there might be trouble at the party, and he wanted to be prepared to protect himself. Unlike the respondent, however, this young man did not start firing his gun when he was stopped at the party and told to leave.
[22] This block party was being held over an afternoon and evening in July. By various estimates, there were in the order of two hundred people at this party, some of whom were children. The majority of these people were congregated in a relatively small area, between two rows of townhouses, in the Danzig housing complex, when this gunfire broke out.
[23] When the gunfire broke out, pandemonium ensued. Some persons tried to run, others tried to hide. As people ran, some were knocked down by others. Some of the injured took refuge in the townhouses; in the homes of people that they did not know. Others made it out of the immediate area, up towards Morningside Avenue. Police and other emergency services began to respond, almost immediately. An ambulance bus was dispatched. Make-shift triage areas were set up, near Morningside, in an effort to deal with all of the wounded, along with those who sustained other injuries.
[24] The gunfire broke out because of the instigating act of the respondent who decided, while amongst this crowd of people, to produce his handgun and fire it at another person. That fact would be sufficiently alarming, by itself, given the distinct possibility, bordering on a probability, that one or more of those shots would not only hit their intended target, but might also hit others. That, of course, is exactly what happened. The horrific nature of that act is compounded, however, by the fact that the respondent either knew, or foresaw, that others at the party would retaliate with their own guns, thus putting everyone at this party in jeopardy of injury or death. That possibility became a reality, as is amply demonstrated by the carnage that ensued.
[25] I have already mentioned that two people were killed as a result of this gunfire. Given the number of shots that were fired, and the indiscriminate manner in which they were fired, including the use of a submachine gun, it is remarkable that more people were not killed. And of those who were wounded, many suffered life altering injuries, including one young girl whose promising basketball career was ended.
(ii) The age, maturity, character, background and previous record of the young person
[26] The respondent was seventeen years old when the offences took place; about seven months from his eighteenth birthday. The respondent is now twenty-one years old; about two months shy of his twenty-second birthday. The respondent was arrested for these offences in November, 2012. He has been in custody since that time. I have received an assessment report prepared under s. 34 of the YCJA. From that report, the following information is obtained.
[27] The respondent is one of four children. He has an older sister and two younger brothers. His parents separated when he was about nine years old. The separation was acrimonious. It appears that, since the separation, the father has played little, if any, role in the respondent’s upbringing. The respondent’s relationship with his mother has varied over time. His mother inflicted some physical punishment on the respondent, on different occasions, that did not help their relationship.
[28] In terms of education, the respondent got into grade eleven, but he was eventually expelled. The expulsion resulted from his participation in a fight, but it was preceded by numerous suspensions for defiance, disobedience, and a disregard for school rules. The respondent’s poor performance in school appears to have been reversed, though, since he has been in custody. While being incarcerated at the Roy McMurtry Youth Centre, he has obtained his Ontario Secondary Diploma. The respondent’s teachers commented that the respondent was polite, respectful, and inquisitive. The respondent’s interest in school appears to have been diminished, however, because of his trial and conviction.
[29] As the respondent got into his teens, he began to use marijuana. By age fifteen or sixteen, he was using marijuana at least twice a day. The respondent began to sell cocaine and marijuana in order to make money, some of which he gave to his mother to help with the household expenses. The respondent’s mother denies knowing the source of these monies. However, the respondent says that she did, or at least strongly suspected, that he was engaged in drug trafficking. I highly doubt that the respondent’s mother was not aware of how the respondent was acquiring these monies. If she wasn’t aware, it is only because she turned a blind eye to the source.
[30] The respondent has two entries on his youth record. One was in October 2012 for assault and theft under. The other was in April 2013 for possession of cocaine and failure to comply with a recognizance. None of these convictions resulted in any periods of incarceration.
[31] The respondent’s behaviour while in custody appears to have been very positive. He has kept out of trouble, and has generally avoided issues with other residents. The respondent has also acted as a mentor to younger residents. He is described in the s. 34 assessment report as “a bright young man and well liked, and viewed as having leadership qualities”.
[32] The respondent has also engaged in psychological treatment during his time in custody. The treatment appears to have had positive results, in a number of areas. That said, the psychiatrist, who authored the s. 34 report, has expressed some concern about the respondent’s ability to continue on a successful path, when he is released from custody, and no longer has the degree of support provided by the numerous staff members who work with him currently. Specifically, the author said, at p. 24:
[The respondent’s] success to date can be attributed to his engagement in programming and treatment. He remains receptive to the tremendous support offered by numerous staff. Writer is somewhat concerned about his ability to continue on a successful path without wraparound support following his transition from RMYC.
[33] The respondent was also subjected to various psychological testing. As a result of that testing, the respondent was found to be at a medium risk of re-offending. The s. 34 report also notes that the respondent maintains that he did not shoot Gifted at the block party but, rather, someone else did.
[34] In addition to the s. 34 assessment, I also have a pre-sentence report for the respondent. Like the assessment report, the pre-sentence report is generally positive in its review of the respondent. The pre-sentence report records the positive steps that the respondent has taken since his incarceration, particularly in the area of education, and the noticeable change in his attitude.
[35] Subsequent to the s. 34 assessment and the pre-sentence report, the respondent sought an assessment for the purpose of being considered for an intensive rehabilitative custody and supervision order (“IRCS”). I will say that the sequential ordering of these assessments, and the habit of the reports showing up on the eve of the proposed hearing, explains the eight month delay between the verdict and this stage of the sentencing process.
[36] The IRCS report is generally positive in its assessment of the respondent, although that is partially explained by the fact that it relies heavily on the s. 34 assessment for much of its information. The IRCS report does not add much to the analysis under this factor, other than to conclude that the respondent is a suitable candidate for an IRCS order. However, there are problems associated with that conclusion, that the IRCS report itself acknowledges.
[37] It appears that IRCS orders, for a variety of reasons, are more effective if they are directed to a person who is younger than the respondent, and also someone who is to be sentenced to a shorter period of incarceration. For this and other reasons, the value of an IRCS order, in the case of the respondent, appears to be debatable. I reach that conclusion for the following reasons:
(i) The respondent is now twenty-one years of age. By virtue of s. 89 of the YCJA, the custodial portion of any youth sentence, if one is imposed on the respondent, would have to be served in an adult provincial facility. That is clear from the wording of the section. Further, if the period of incarceration is two years or more, the Provincial Director can seek an order of the court to have the respondent serve the sentence in a federal penetentiary. If the respondent is sent to a federal penetentiary, then the IRCS funding/programming is lost. This results from the fact that the IRCS funding is provided by the Federal government and, thus, would be viewed as duplicating the funding provided, by that same level of government, for the federal penetentiary system.
(ii) Even if the respondent is not transferred to a federal adult facility, depending on the length of the sentence imposed, he will have to be incarcerated for a much longer period of time than adults are normally housed in a provincial adult facility. It is not clear how well provincial reformatories deal with young persons who are subject to an IRCS order.
(iii) If the respondent serves a youth sentence in an adult facility (whether provincial or federal), he will not be able to use Reintegration Leaves, while he is serving his sentence. Reintegration Leaves are a normal part of an IRCS program.
(iv) Another normal part of an IRCS program is access to open custody. If the respondent is serving a sentence within the adult system, he also would not have access to open custody. This again hampers the reintegration objective.
(v) If the respondent does serve his custodial sentence in a provincial adult facility, and an IRCS order is imposed, it is suggested that the respondent should be housed at the Ontario Correctional Institute. In the case of the respondent, however, there are two problems with that placement. One is that the respondent has to admit responsibility for the offences. That is something that the respondent has not done, at least not to date. The other is that the respondent cannot have any other outstanding charges. The respondent currently has a number of other charges arising from the same events as led to the convictions with which I am dealing here. While it is anticipated that the latter obstacle will be addressed, the former obstacle remains.
[38] It is quite apparent that the adult system is simply not set up to accommodate young persons, who are required to serve a sentence in an adult facility, but for whom it is desirable that they receive the type of attention, and the type of programming, that is available in the youth system. In particular, it appears that, even if a youth sentence is coupled with an IRCS order, given the respondent’s age, its effectiveness would be significantly hampered, due to the fact that the respondent would be required to serve his custodial sentence in the adult system. Consequently, I do not find the fact that the respondent qualifies for an IRCS order greatly influences the conclusion whether a youth or an adult sentence is appropriate.
[39] Two other points should be made under this factor. Counsel for the respondent emphasizes that the respondent has made great strides while he has been in custody in a youth facility. Indeed, he suggested that the respondent is the “poster child” for rehabilitation. That submission takes the progress, that the respondent has made, too far. I agree that the respondent has made significant advances since he has been in custody, and he is to be commended for his efforts. But those advances have been the direct result of the respondent being surrounded by all of the structure and supports that the youth detention facilities provide. As the s. 34 report makes clear, if the structure is removed, the future conduct of the respondent is much less clear.
[40] Further, in terms of rehabilitation, one important aspect is always the acknowledgement, and acceptance, of responsibility for the underlying conduct. While the respondent has expressed remorse for the impact of these events on the families of the persons killed and injured, he has not acknowledged his central role in those events. He still maintains, four years later, and after being convicted by a jury, that he was not responsible for firing the shots that started the gunfire at the Danzig block party. That fact is of some significance when it is coupled with the fact that the respondent remains at a medium risk of re-offending.
[41] The other point that counsel for the respondent stressed was that the actions of the respondent were “impulsive”; that the actions of firing the shots were “spontaneous”. All of this was directed at submitting that the respondent acted rashly, as young persons often do, and that the immaturity, that is reflected in that conduct, attracts the presumption of diminished moral blameworthiness that is referred to in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3. I would note, on that point, that the presumption of diminished moral blameworthiness is, like all presumptions, a rebuttable one: R. v. D.B. at para. 45.
[42] I do not accept that counsel’s characterization of the respondent’s conduct is a fair or accurate one. There was nothing impulsive in the respondent’s decision, either to obtain a handgun, or to bring that handgun to this block party. Rather, that conduct reflects a conscious understanding of the potential for problems associated with his attendance, and his choice as to the manner in which he was going to be able to respond to those potential problems. Further, the respondent’s firing of his gun was not spontaneous. The respondent did not fire his gun as an immediate reaction to Gifted drawing his gun. Rather, the respondent fired his gun after an adult had told Gifted to put away his gun, and Gifted had done so. The respondent’s decision to then draw his gun and fire at Gifted, at almost point blank range, is the antithesis of spontaneity.
[43] I would also note, regarding the presumption of diminished moral culpability, that there is nothing in the s. 34 report that identifies any mental illness or disability, from which the respondent was suffering at the time of these events, that would have impaired the respondent’s ability to understand the moral impact of his actions.
[44] Lastly under this factor, it bears mentioning that, at the time that these events occurred, the respondent was on bail for the offences of robbery and failure to appear. It was a term, of that bail, that the respondent was not to possess any firearm. The respondent was in breach of that term. It was another term, of that bail, that the respondent was subject to a curfew of 10:00 p.m. The gunfire erupted shortly before 10:40 p.m. The respondent was also in breach of that term. It is clear that the respondent’s failure to abide by the terms of his bail, in order to attend a party, armed with a handgun, where the respondent knew that problems might arise, was a conscious and deliberate one.
(iii) Any other factors that the court considers relevant
[45] It is under this heading that I will address one other factor that I consider to be of importance in these applications, and that is the interests of society. 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. [emphasis added]
[46] 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.[^2] 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. A proper balance must be struck between the two. And 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.
[47] If subject to the maximum youth sentence, the respondent would be out of custody in four years, assuming that I do not accord him any credit for the time that he has spent in pre-sentence custody. If he was then subject to the maximum community supervision period of three years, the respondent would be free of all court ordered supervision when he was approximately twenty-eight years old. The respondent would not be subject to any further supervision. That is simply the reality of a youth sentence.
[48] If subject to an adult sentence, the respondent would be sentenced to imprisonment for life. The National Parole Board would determine when he would be released on parole, subject to the period of parole ineligibility of seven years. I note, on this point, that the period of parole ineligibility runs from the date of detention. In the case of the respondent, the imposition of an adult sentence of life in prison, with no parole for seven years, means that the Parole Board may consider the respondent for release approximately three years from now. If I impose the maximum youth sentence, with no allowance for the respondent’s pre-sentence custody, the respondent would have to serve four years in prison, before being released on community supervision. In other words, a year longer than his adult sentence will allow for his consideration for release. I mention this fact only to point out that the imposition of an adult sentence does not necessarily treat the respondent more harshly in respect of his opportunity to return to our community. What it does create is a structure for the continued monitoring of the respondent’s conduct.
C. Previous cases
[49] I have been referred to a number of authorities by both sides. I do not intend to review any of those authorities. As is so often the case when it comes to matters of sentencing, previous cases are of relatively little assistance to the task of a sentencing judge, because they each turn on their own individual facts. While counsel on one side invariably seeks to point to similarities between prior cases and the current case, counsel opposite can just as easily point to dissimilarities. And, of course, for each case that counsel on one side finds that is said to be similar and, thus, justifies the sentence that they submit is appropriate, counsel opposite can find another case, that is said to be equally similar, but supports the very much different sentence that they say is appropriate.
[50] The fact is that sentencing is a very discrete exercise that is based on the individual facts underlying the offences in the current case, and the equally individual circumstances of the offender. Consequently, it is not particularly helpful to attempt to draw parallels between cases. Appellate courts may provide some guidance in terms of sentencing ranges, and appropriate principles to apply. To the degree that the Supreme Court of Canada and our Court of Appeal have done so, relevant to this type of case, I have either referred to them above or have applied the principles that those cases establish in reaching my conclusion. But even when those courts address individual sentences in specific cases, they do not usually serve as a template for subsequent cases, absent an express enunciation of ranges or principles.
D. Conclusion
[51] In the end result, the first factor clearly argues in favour of an adult sentence. Indeed, I suggest that it would be a rare case where the offence of second 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 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.
[52] The second factor tends to support the imposition of a youth sentence. I say that because of the fact that the respondent has made significant progress while he has been in the youth system, with all of its supports. The youth system allows not only for continuing support, but also for more intensive treatment and programming through avenues, such as an intensive rehabilitative custody and supervision order. The concern with an adult sentence is that the available programming is less, and thus the opportunity to continue the rehabilitative process is reduced. I recognize, on this point, that Corrections Service Canada does offer considerably more programming in the federal penitentiary system, than the Province does, unfortunately, through its reformatory system, except in a couple of specific locations.
[53] The contrast between the youth and adult systems, however, ignores the salient fact that, even if a youth sentence is imposed on the respondent, by virtue of s. 89 of the YCJA, the respondent must be transferred to an adult facility. The principal benefits of the youth system, with all of its structure and resources, are therefore lost, even if a youth sentence is imposed. Further, there are still the problems, that I earlier described, regarding the efficacy of an IRCS order as it relates to the respondent.
[54] Finally, there is the third factor, which 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] The offences here were horrendous. But they were also, in one sense, almost predictable. The respondent went to this block party armed with a fully loaded handgun. He knew that, if he used that handgun, others around him would respond in kind. The consequence of the respondent’s actions was, as I said earlier, the worst case of a mass shooting in this city’s history, eclipsing the shooting in the Eaton Centre, that, remarkably, occurred just about six weeks before the Danzig shooting. One only had to listen to the witnesses, who were involved and injured in this shooting, and the emergency responders, who had to try and cope with the consequences of this event, to understand what a truly horrific event this was.
[56] It is the type of event that, to most citizens of this city, is both inexplicable and fundamentally alarming – a reaction that is compounded by the fact that it happened in a residential area of the city, on a nice summer’s evening, where people were simply trying to enjoy themselves, with their neighbours, by participating in a positive community event. It is the type of event that is made all the more difficult for most people to understand, when the carnage is caused almost entirely by young persons – teenagers – armed with guns. In this case, those guns included, at least, a 9mm handgun, a 40 calibre handgun and a 9mm submachine gun. Ordinary persons do not understand how anyone, much less teenagers, can come, not only to possess such weapons, but to use them in such a brutal and indifferent way. Consequently, it instils fear in members of the public that this violence will be repeated, that it will take place essentially at random and that, when such violence does recur, perhaps they will be the next victims.
[57] I have balanced all of these factors. I have considered the improvement that the respondent has made since he had been in custody. But I have also considered that that improvement is almost entirely the result of the structure that has surrounded him. I have considered the concern, expressed in the s. 34 report, about the respondent’s ability to continue on a successful path without that structure. I have considered that the respondent is still at a medium risk of re-offending. I have considered the age, maturity, and the conduct of the respondent, both before and after the offence. All of these considerations have satisfied me that the presumption of diminished moral blameworthiness has been rebutted in this case.
[58] All of these considerations also lead me to the conclusion that the only appropriate sentence, to impose on the respondent, is an adult sentence. It is the only sentence that will hold the respondent accountable for his role in these murders, and his conduct that caused them. It is also the only sentence that the public will see as being commensurate with the damage that was done, not only to the injured, but especially to the two young lives that were lost. And, finally, it is the only sentence that will provide for ongoing supervision of the respondent, to ensure that his progress to date will continue, and that the conduct, that led to these convictions, will not return.
[59] For these reasons, I have concluded that an adult sentence must be imposed.
[60] On the two charges of second degree murder, I impose a sentence of life in prison with no eligibility for parole for a period of seven years, concurrent on both counts. On the count of attempted murder, I impose a sentence of three years, concurrent, after according the respondent a credit of four years for the time that he has spent in pre-trial custody. On the counts of aggravated assault, and on the count of reckless discharge of a firearm, I impose a sentence of time served, concurrent on both counts, after credit for the respondent’s pre-sentence custody. Although it may be seen as being somewhat academic, I should add that, on the point of credit for pre-sentence custody, given that the respondent has served that custody in a youth detention facility with all of its attendant benefits, I see no compelling reason to give enhanced credit.
NORDHEIMER J.
Released: December 7, 2016
CITATION: R. v. F.O. 2016 ONSC 7654
COURT FILE NO.: YC 30000005-14
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
F.O.
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: December 7, 2016
[^1]: As part of Bill C-10, Parliament amended various provisions of the YCJA, including s. 72(1), as of October 23, 2012. It was agreed that those legislative amendments do not apply to this application. Rather, the provisions of the YCJA, as they existed at the time of the offences, are the proper ones to apply.
[^2]: I note, on this point, that denunciation and deterrence are normally two of the objectives of sentencing. However, those objectives did not, until recently, apply in a youth sentencing: R. v. O.(A.) at para. 48. While the YCJA has now been amended to expressly include denunciation and deterrence as sentencing objectives, those amendments do not apply to this case. Nevertheless, the protection of the public is still a fundamental principle of the YCJA: s. 3(1)(a).