Court File and Parties

COURT FILE NO.: 139/16 DATE: 2018/09/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – T.J.T.

COUNSEL: James Spangenberg, for the Crown Tyler MacDonald and Christopher Rudnicki, for the Defendant

HEARD: August 13, 15 and 16, 2018 Justice M.A. Garson

WARNING

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1), 129, and 138(1) of the Act. These provisions provide that:

(i) no person shall publish the name of a young person, or any other information related to the young person, if it would identify the young person as a young person dealt with under this Act. (ii) no person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act. (iii) every person who contravenes these provisions may be subject to prosecution and punishment upon conviction.

REASONS FOR SENTENCE – delivered orally

Introduction

[1] On January 31, 2018, a jury convicted T.J.T. of the second degree murder of Steve Sinclair. T.J.T. was fifteen at the time of the commission of the offence.

[2] After addressing some procedural and preliminary issues on February 6 and April 3, 2018, a hearing was conducted on August 13, 2018 in response to the Crown’s application to have T.J.T. sentenced as an adult pursuant to s. 64(1) of the Youth Criminal Justice Act (“YCJA”). This hearing was blended with the hearing for sentencing, and took place over three days.

[3] I must now make two determinations. First, whether T.J.T. should be sentenced as a youth or an adult, and thereafter, the fit and appropriate sentence to be imposed.

[4] The parties agree that if I sentence T.J.T. as a youth, s. 42(2)(q)(ii) of the YCJA provides for a maximum sentence of seven years. This sentence would consist of a four year maximum custodial period with the remaining three years to be served by way of conditional supervision in the community.

[5] These reasons explain my ruling on the Crown’s application, and the sentence that I have determined is required in the circumstances.

Circumstances of the offence

[6] In an earlier decision, dated February 6, 2018, I made certain findings of fact to permit the preparation of a s. 34 YCJA report. I need not repeat those findings in detail, but will provide a brief overview for the purposes of this hearing.

[7] Prior to September 6, 2015, the offender was approached by an unknown third party and agreed to take part in a plan to shoot the deceased in the leg (a “leg-warmer”). In return for carrying out the shooting, the offender was given a handgun, ammunition, a vehicle, and a promise of a large sum of cash. Much of the promised cash never materialized.

[8] In the early morning hours of September 6, 2015, the offender (who travelled from Hamilton) spent hours waiting and pacing in front of an after-hours club in London located on Hamilton Road. The club was run by the deceased: Steve Sinclair.

[9] The offender concealed a .38 Special CTG Cobra handgun with six rounds of ammunition in the waistband of his pants. He also carried an encrypted cell phone.

[10] In the space of 3.42 seconds at approximately 4:57:12 a.m., the offender fired three shots from a relatively close distance in the presence of a number of witnesses. These shots caused four wounds, including the fatal wound to the deceased’s chest.

[11] The offender was captured firing the shots on a store surveillance camera, with his arms extended straight out and at shoulder height. The first shot was aimed at the leg of the deceased.

[12] The deceased was not supposed to die from the first shot. However, at some point after the first and before the third and final shot, the offender abandoned the plan to wound. In other words, and in accordance with the findings of the jury, by firing more shots at close range with a handgun, he must have known that his actions were likely to result in the death of the deceased, and was reckless as to whether or not his death ensued.

[13] After the shooting, the offender fled the scene on foot, returned to Hamilton, buried the handgun and remaining ammunition (including three spent rounds left in the chamber), and laid low until his arrest on September 15, 2015.

[14] The offender was surreptitiously recorded after his arrest bragging about the shooting to an undercover officer in custody, laughed while watching a video of the shooting, and - on September 7, 2015 - posted a Facebook photo. He made clear to the undercover officer that he would rather spend a lifetime in jail than snitch on someone.

Victim Impact Statements (“VIS”)

[15] A number of VIS were filed, including those from the deceased’s spouse, mother, children, grandchildren, members of his extended family, and friends.

[16] Collectively, they were enlightening, powerful, and heart-breaking. Though I need not review the specifics of each statement, I note the following consistent themes that resonated throughout:

(i) Steve Sinclair’s unrelenting love for his family and close friends; (ii) his big smile, big heart, and gentle hugs; (iii) his identity as a husband, father, grandfather, son, friend, accomplished sheet metal worker, and talented guitar player; (iv) the suggestion that, had the offender gotten to know him, Steve was the kind of person who would have taken T.J.T. under his wing to counsel and guide him in a different direction; (v) how so many lives were forever changed by Steve’s death; (vi) the fact that Steve did not deserve to die the way he did; (vii) how proud his children are of their father, his kind heart, and his many accomplishments; and (viii) the incredible pain caused from his early, unnecessary, and tragic death which left a gaping hole in the hearts of so many. Steve will be forever missed and loved.

Circumstances of the offender

(a) Pre-Sentence Report (“PSR”)

[17] A PSR was prepared and filed with the court on March 27, 2018 by Iwona Hukiewicz, Probation Officer. The PSR sets out the following pertinent information:

(i) T.J.T. was born on […], 2000 and is currently eighteen years of age. At the time of the offence, he was one of five children residing with the offender’s mother, A.S., in Hamilton. He is the second of three brothers, and has two older half-brothers born separately to each parent. (ii) B.T., the offender’s father, is on parole in Brampton. He has an extensive criminal record which includes offences related to drug trafficking and firearms. At present, B.T. appears to be making positive efforts to turn his life around, though his criminal past meant that B.T. was absent during much of T.J.T.’s childhood years. (iii) A.S. worked two jobs and struggled to support her family. Between 2009 and 2011, T.J.T. lived with his maternal grandmother and enjoyed a close relationship with her until she passed away in 2011. As a result, T.J.T. was often supervised by his older brothers who allowed him to come and go as he pleased. (iv) By 2014, parties were often hosted at the family home where drug use was suspected. In addition, childhood friends of T.J.T.’s were murdered in 2014 and 2015 respectively, and both of his older brothers were shot in 2015. (v) Although he denies gang affiliation, T.J.T. reports associating with peers who are affiliated with a Hamilton street gang. (vi) As a result of excessive absenteeism, T.J.T. earned only two of eight potential secondary school credits during his Grade 9 year in 2014. Since admission to Sprucedale Youth Centre in September 2015, T.J.T. has completed an additional thirteen credits through the facility school with grades ranging from 65-90%. He has shown strong effort and appears motivated to do well in school. (vii) Over the course of his nearly three years at Sprucedale, T.J.T. incurred a total of at least eighteen Behaviour Reports relating to multiple events. Included within them are incidents of T.J.T. not following directions, engaging in verbal and physical altercations with peers and staff, behaving disrespectfully, and possessing contraband. There was also suspicion of T.J.T. being under the influence of an illicit substance. (viii) However, T.J.T. has received no Behaviour Reports since April 2017. He appears to be maturing in his interactions with peers and staff and is seen as a positive role model. T.J.T. has also achieved and maintained for more than 16 months the highest level in Sprucedale’s incentive program (Level 4). (ix) T.J.T. acknowledges culpability and responsibility for this offence and expressed empathy for those impacted by his actions.

(b) Section 34 YCJA assessment

[18] On February 1, 2018, I requested the preparation of a psychological assessment of T.J.T. to determine if a psychological disorder contributed to his conflict with the law and to consider the appropriateness of an adult sentence. I received and reviewed this report on April 3, 2018, and next turn to some of the more salient components of this report.

[19] London Family Court Clinic staff met with T.J.T. on three separate occasions at Sprucedale. No psychological disorder was identified.

[20] T.J.T. was known to Hamilton Police through his involvement with a group known as “Loyalty ova Money”. T.J.T. has a “Loyalty ova Money” tattoo on his arm that he received during a tattoo party at the family home.

[21] T.J.T.’s attitude began to deteriorate after the death of his grandmother in 2011 with whom he was very close. Emotional expression was suppressed (rather than promoted) in the family home in an effort to “man up”.

[22] Sprucedale staff describe a particular incident where T.J.T., who initially denied knowing another youth from a rival gang, punched the youth. T.J.T. later admitted to knowing and having issues with the other individual.

[23] Otherwise, Sprucedale staff describe T.J.T. as polite with strong social skills, and indicate that he has adapted surprisingly well in the circumstances. Much of T.J.T.’s recent behaviour has been reported as “near perfect”, allowing him to achieve and maintain Level 4 incentives for extended periods.

[24] T.J.T. appears to have converted to Islam during his time at Sprucedale and has completed numerous programming opportunities addressing morals, values, and anger management.

[25] As earlier noted, T.J.T. has made significant academic progress while at Sprucedale with teachers describing him as an excellent student.

[26] Although well-mannered and polite, T.J.T. was observed to be vague and evasive in his responses to many questions asked by the report writers and often did not initiate self-disclosure.

[27] His scores on the WAIS-IV test (which measures cognitive functioning and yields a full IQ score) were within the average range at the 30th percentile. He scored in the low average range (16th percentile) on verbal comprehension, suggesting that he may experience some difficulty with abstract thinking skills, concept formation skills, and verbal reasoning.

[28] Although his perceptual reasoning and processing speed were reported to be in the average range, his overall score on working memory tasks fell within the low average range (18th percentile).

[29] Psychological tests to assess his personality traits and psychopathology were administered (MNP1-2). T.J.T. saw himself as being in poor health and unable to function effectively. He revealed a tendency to have conflict over rules and to be self-focused and superficial in his interpersonal relationships. He sees himself, when compared to his friends, as better at making money and more dedicated to getting what he wants. His clinical pattern is suggestive of poor insight when it comes to understanding the cause of his behavioural problems.

[30] T.J.T. described short periods of moodiness, having endured previous traumatic events such as the loss of his grandmother, the loss of two close friends to violence, and the shooting of two of his older brothers.

[31] T.J.T. first tried marijuana in Grade 3 and was a regular user by Grade 7. He began selling marijuana in 8th Grade which enabled him to financially provide for his younger brother. He also regularly used Percocet, Molly, and MDMA. He acknowledged a pattern of petty theft prior to selling drugs.

[32] T.J.T. has been exposed to negative peer groups, both at his own level and through his older brothers. Such exposure often entailed substance use, crime, and violence. His own behaviour included fire-related activity, destruction and theft of property, assault, and possession and use of weapons.

[33] Although denying direct involvement in any gangs, he ascribes to a culture that adheres to “Loyalty ova Money” and the idea of being there for one another. T.J.T. would sometimes carry a knife and expose it to threaten others.

[34] T.J.T. spoke of a history of poor anger management and reported having been in approximately ten fights in his lifetime. His extensive exposure to violence and criminal activity is coupled with an apparent attitude of indifference towards such behaviours and a disregard for the welfare of others. This disconnection was evident in his assessment of the current offence when he honestly thought the deceased would get shot in the leg and be out of the hospital in the same night.

[35] T.J.T. did indicate that the current offence is “the only thing I feel really, really guilty about”. However, while accepting some responsibility for the crime, he appeared more remorseful that the event did not go as planned than he did about the death of the victim. He offered that it must have been hard for the victim’s family to lose a father.

[36] The YLS/CMI test evaluates the likelihood of general re-offending. T.J.T. was evaluated being at moderate risk to re-offend. However, in light of his lifestyle in the year preceding his arrest, a clinical override was used to reclassify him as being a high risk to re-offend. Factors contributing to this override include;

(a) lack of proper parenting, discipline, and supervision; (b) truancy and poor performance at school; (c) negative peer relations; (d) substance abuse; and (e) poor lifestyle choices during recreational time.

[37] During his time at Sprucedale, T.J.T.’s life was highly structured and supervised with reduced access to illegal substances. Accordingly, significant gains were made academically and socially.

[38] Overall, T.J.T. presented as a guarded young man with inflated self-esteem and a lack of adequate feelings of guilt with respect to the current offence. The assessors expressed concern that without intensive counselling focusing on his antisocial beliefs and attitudes, T.J.T. may quickly revert to his previous lifestyle if released into his home community.

[39] On a positive note, although his initial entry into Sprucedale was marked by several behavioural problems towards peers and staff, he has come to be perceived as likeable, polite, and cooperative and demonstrated growth in his maturity and social skills. This is in addition to expending a significant effort to advance his education by achieving school credits.

[40] By way of summary, the assessors determined that T.J.T. retains an attitude of indifference with respect to his antisocial behaviour and the gravity and severity of his current offence, and also lacks concern for the welfare of others. His reluctance to either seek or accept help or counselling for these behaviours place him at an increased risk of future offending. He is described as being at a “very early stage of therapeutic gain” with no realistic strategies to sustain a successful lifestyle change upon release. Accordingly, he would benefit from an “extensive period of structured surroundings” (i.e. custody) to manage these risks. This could happen in either a youth or adult facility. Put another way, there are no reasons why he could not serve his sentence as an adult. T.J.T. reported that he was not adverse to the notion of serving his sentence in an adult facility but was more concerned with the length of such a sentence.

[41] Future recommendations include a vocational assessment, continued involvement in positive social activities, and intensive counselling focusing on self-reflection and awareness. Such counselling is necessary to help T.J.T. recognize triggers and identify strategies to manage the risks of not returning to his previous lifestyle and behaviours.

(c) Impact of Race and Culture Assessment Report (“IRCA”)

[42] T.J.T. is a young black male of mixed heritage. Counsel for T.J.T. filed an IRCA prepared by Akwasi Owusu-Bempah, PhD., dated July 12, 2018. The writer of this IRCA opines that the socio-historical context in which T.J.T. was born and raised (i.e. African Canadian with parental absence and criminality, low-income, minimal supervision, and delinquent siblings and peers) influenced his lifestyle and behaviour, including his actions in the current offence.

[43] The report writer suggests that T.J.T.’s father’s criminality and repeated periods of incarceration are a known risk factor for juvenile delinquency and aggressive behaviour. This behaviour also forced T.J.T.’s mother to work multiple jobs to support her family, leading to poverty and a lack of parental supervision for T.J.T.

[44] The report further indicates that in response to his peers being killed and his brothers being shot, T.J.T. became reckless as to whether he might be killed or go to jail.

[45] T.J.T. noted to the report writer a number of instances where he felt discriminated against, based on his race. T.J.T. indicated that the way he was raised (as a black male in a low-income and “thuggish” community) contributed to his behaviours. The report writer suggests that the court see T.J.T. through the lens of both perpetrator and victim. In other words, he should be held accountable for his actions for this offence but not for the impact that Canada’s history of race relations and racial discrimination has had on black people generally and T.J.T. specifically. The report writer concludes by recommending (amongst other things) that T.J.T. have limited exposure to experienced adult offenders, and avoid incarceration in a federal correctional facility.

(d) Reference letters for T.J.T.

[46] I received and reviewed five letters of reference for T.J.T. from friends and relatives, including his mother.

[47] Though I need not review each in detail, I note the following picture of T.J.T. that emerges from these letters:

(i) a happy and outgoing youth who is kind and cares about others; (ii) an avid and accomplished skateboarder; (iii) a good student until his grandmother passed away; (iv) a broken and vulnerable youth after his best friend was murdered and two of his older brothers were shot; and (v) a youth who, after incarceration, was able to open up about and start to communicate his feelings with his family.

(e) Statement from T.J.T.

[48] T.J.T. exercised his right to address the court. He spoke clearly and sincerely.

[49] He described his actions as careless, selfish, and reckless. He apologized for his actions.

[50] He acknowledged knowing what it feels like to lose loved ones to killing, and how it hurts him to have to put others through this experience.

[51] He thanked those who read or filed VIS for “truly shining a light on who Steve really was”.

[52] He regrets his actions and accepts full responsibility for what he did. He did not want his past actions to speak for his future. He is no longer “the boy who was easily persuaded to do another man’s bidding”.

[53] He spoke of the hell of much of his childhood. Included were descriptions of his father in jail most of his life, his brothers looking after him as his mother worked two jobs - night and day - to raise five boys, the death of his grandmother, the murder of his friends, and his two older brothers being shot multiple times.

[54] T.J.T. explained that his early days in custody saw him not listening or applying himself because he did not care. The turning point for change was when he realized that he was now surrounded by “good people who truly wanted him to do good”. At this point in time, he realized that he wanted more for himself. He began to apply himself, study, get good grades, and enrol in most of the programs offered at Sprucedale. As a result, he has maintained the highest level of incentives for more than sixty weeks.

[55] He now sees a future that includes going to college and trying to motivate other kids to not do things they will regret (like he did).

[56] He prays every day for forgiveness for his sins and for the well-being of Steve Sinclair’s family.

[57] He concluded by making clear that he wanted to apologize for his own sake, and so that Steve Sinclair’s family knows how he currently feels about what happened three years ago.

Positions of the parties

[58] The Crown submits that the offender participated in a serious and well-planned murder and showed little remorse thereafter. In other words, T.J.T. acted like an adult with significant intentional risk-taking and caused devastating harm. In short, the Crown contends that it has rebutted the presumption, shown that a youth sentence would not sufficiently hold T.J.T. accountable, and that he should consequently be sentenced as an adult.

[59] The defence counters that T.J.T.’s growth and maturity over the last three years, particularly within the last sixteen months, underscores his immaturity at the time of the offence. The defence argues that the combination of his age, race, and dysfunctional upbringing are sufficient to conclude that the Crown has not rebutted the presumption of reduced moral blameworthiness. As well, the defence submits that the maximum sentence under the YCJA is sufficient in these circumstances to hold T.J.T. accountable for his actions. Accordingly, T.J.T. should be sentenced as a youth.

The Governing Law

[60] This is a Crown application under ss. 64(1) and 71 of the YCJA for T.J.T. to be sentenced as an adult. The Crown and defence filed many cases for the court’s consideration. I note that both sides rely on R. v. W.(M.), 2017 ONCA 22. For the purposes of my analysis, I need only refer to a few of the leading and recent cases in this context.

[61] The statutory test for whether a court shall impose an adult sentence is set out in s. 72(1) of the YCJA:

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.

[62] In R. v. B.(D), 2008 SCC 25, the Supreme Court of Canada made clear that the Crown bears the onus on an application under s. 64(1) to rebut the presumption of diminished moral culpability (“the presumption”) and to show that a youth sentence is insufficient to hold an offender accountable for his conduct (“accountability”).

[63] As a result of B.(D.), the statutory test for imposing an adult sentence under s. 72 of the YCJA was amended in 2012 to a two-part test: (1) the presumption; and (2) accountability. These are separate inquiries with some overlap but still requiring separate analysis.

[64] The burden is not cast in terms of a civil or criminal standard of proof. Rather, it relies on whether I am satisfied that T.J.T. should be tried as an adult after carefully weighing and considering the relevant factors and evidence. See R. v. M.(S.H.), [1989] 2 S.C.R. 446, and R. v. O.(A.), 2007 ONCA 144 [1]. I now turn to examine each separate part of the test.

Part I – The Presumption

[65] In R. v. W.(M.), Epstein J.A. provides some helpful guidance on the focus of this branch of the test. At para. 98, she indicates:

In order to rebut the Presumption the Crown must satisfy the court that at the time of the offence, the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to him or her.

[66] Both the seriousness of the offence and the circumstances of the offender must be considered at this stage. More specifically Epstein J.A. notes in W.(M.) at para. 112 that:

…what is relevant to an analysis of whether the Presumption has been rebutted is the level of moral judgment or sophistication demonstrated in the planning and implementation of the offender and the young person’s role in carrying out the offence.

Part II - Accountability

[67] At this stage of the analysis, the focus shifts to whether a youth sentence imposed in accordance with the principles of the YCJA would be sufficient to hold T.J.T. accountable for his actions.

[68] I must balance the objectives of accountability and rehabilitation, and do so in accordance with the principles enunciated in both ss. 3(1)(b)(ii) and 38 of the YCJA. Accountability in the YCJA context is equivalent to the adult sentencing principle of retribution, namely the imposition of a just and appropriate punishment that properly reflects the moral culpability of the offender. See R. v. W.(M.) at para. 103 [2].

Discussion

(i) Presumption

[69] The starting point for this analysis is the principle from B.(D.) that young people who engage in criminal behaviour are presumed, by virtue of their age, to have a lesser moral blameworthiness than adults. This diminished level of adolescent maturity and increased vulnerability affects the extent to which many young persons are held accountable, and reduces their capacity for moral judgement.

[70] T.J.T.’s shooting and killing of the deceased by firing a handgun three times at close range is a very serious offence. In our society, the proliferation of handguns and shootings is of great concern to everyone and affects our entire community.

[71] The powerful, painful, and touching VIS reveal the devastating and lasting impact of this offence on the deceased’s family and friends.

[72] Turning to the specifics of the offence, I note that:

(i) A series of steps were taken in advance to identify the target, the firearm, the plan to bring T.J.T. to London, and the next steps after the shooting. (ii) T.J.T. fired the handgun at close range amongst a crowd of other persons. It was not his plan, but he was a willing participant and motivated by money. (iii) After the shooting, T.J.T. engaged in a number of steps to conceal the crime, including burying the handgun, ammunition and clothing (albeit not very effectively), and laying low for a while at a friend’s house. (iv) Although only fifteen years of age at the time of the shooting, T.J.T. was already established as a street level drug dealer for marijuana with a strong interest in money and the “gangsta” lifestyle.

[73] The video and audio recordings of the offence and the behaviour of T.J.T. immediately afterwards paint a portrait of a young man displaying characteristics and intentions consistent with a willingness to engage in significant risk-taking activities.

[74] T.J.T. was the shooter. The trigger-puller. The hired gun. He was not the mastermind or the planner.

[75] He ran from the scene on foot and then took many steps in an effort to conceal his actions. However, the seriousness of the offence along with its circumstance are only part of the relevant factors for consideration. Standing alone, the seriousness of the offence cannot rebut the presumption. I next turn to the circumstances of the offender.

[76] His time in Sprucedale is a picture of two tales. On the one hand, he has made great strides with his education, maturity, leadership, and social skills. On the other hand, he initially amassed a lengthy list of Behaviour Reports, representing disrespectful behaviour towards both peers and staff, and an unwillingness and inability to follow rules and direction. He is a different person today then he was when he entered Sprucedale almost three years ago.

[77] His lack of any prior YCJA convictions or record must be balanced against his truancy and aspirations towards a “gangsta” lifestyle, including drug dealing.

[78] What has emerged in observing the maturation of T.J.T. while at Sprucedale and listening carefully to the words that he delivered to this court is the following:

(i) He lacked the foresight or self-awareness to appreciate fully the consequences of the plan. This is apparent through his admission that he thought he would shoot the deceased in the leg and he would be out of the hospital that same night. (ii) His initial lack of empathy towards the deceased is consistent with a lesser level of maturity, sophistication, and capacity for moral reasoning than that of an adult, and is instructive of his inability to understand the consequences of his actions and their impact on others. This is also consistent with his s. 34 assessor’s findings that he demonstrated poor insight in understanding the cause of his behavioral problems. (iii) His lack of judgement and foresight is also reflected in the unsophisticated nature of both the planning and implementation of the offence, including his pacing for hours outside the lounge and his efforts to conceal the firearm and other incriminating evidence. His ability to shoot the deceased three times speaks to his ability to partially execute a plan but not to his moral sophistication or maturity. He was directed by an unknown third party to shoot the deceased and provided with all of the tools to carry out the plan. (iv) His lack of appropriate parental supervision coupled with his father’s and older brothers’ glorified criminal activity and “gansta” lifestyles made him easily vulnerable to the actions of others where fast money could be made. Put another way, his upbringing was highly dysfunctional and significantly impacted his critical reasoning and decision making. His sought after image as a “gangsta” was heavily influenced by his surroundings and significantly contributed to his anti-social attitudes and lack of remorse. The disproportionate influence of his older brothers on his upbringing taught him that he should try to support himself and his little brother through criminal behaviour and enterprise. T.J.T. fell prey to the concept of using violence or aggression to gain respect within his disadvantaged community. (v) His age (fifteen) at the time of the killing was a factor contributing to his limited level of moral sophistication. (vi) His maturity was also impacted by his lack of proper communication with family and others to address and manage emotional trauma caused by deaths, killing, and shootings of family members and friends. (vii) Although he fired the shots that killed Steve Sinclair, I accept that this was not his plan and that he effectively was an immature and vulnerable hired gun to wound. In other words, he did not demonstrate critical thinking or judgement in executing the plan.

[79] In short, I accept that T.J.T.’s upbringing was not structured, stable, or conducive to producing a well-adjusted youth. T.J.T. endured significant challenges facing many young males of his racial and cultural background. He resided in a low-income community, was surrounded by peers and older siblings who participated in criminal activity and other negative anti-social conduct, and made otherwise poor life choices. He was raised in an environment where male violence and gun-play was normalized, which in turn shaped his view of what was expected of him. His actions were the product of his background coupled with his immaturity. His environment stunted his moral development and ability to self-reflect.

[80] T.J.T. lacked appropriate supervision, guidance, direction and support. Understandably, his mother, through no fault of her own, worked day and night at low paying jobs to raise five boys. His older siblings promoted and encouraged a “gansta” lifestyle characterized by drugs, quick money, tough talk, and bravado.

[81] His flippant and dismissive behaviour is more appropriately characterized as immature at the time of the killing and shortly thereafter. He lacked an ability to make appropriate decisions or to fully comprehend the consequences of his actions.

[82] I cannot ignore the realities of his racial background and cultural heritage, or their impact on his development and choices leading to the commission of the offence. In accordance with s. 3(1)(c)(iv) of the YCJA, I take into account his race and culture, noting their effects on his upbringing and reducing his moral culpability for this offense.

[83] The significant efforts he has made to better himself while at Sprucedale underscore his level of immaturity at the time of the offence. He appears to have moved away from substance abuse or misuse, and has demonstrated a commitment to learning and bettering himself so that he may be a productive and socially acceptable member of society upon release. He is making better social and lifestyle choices and is thriving in a structured and supervised setting. His growth in the past sixteen months is a strong indicator of his immaturity, impulsiveness, bravado, sense of invincibility, and vulnerability to the influence of others at the time of the offence.

[84] The T.J.T. who shot and killed Steve Sinclair is a stark contrast to the T.J.T. that addressed the court in August 2018. More specifically;

(i) he is no longer physically, verbally, or emotionally volatile to others; (ii) he has transitioned from an escalator to a de-escalator; (iii) he has migrated from a high-school dropout to a few credits short of a high school diploma; (iv) he believes in himself, wants more for himself, and is making concrete plans for his future; (v) he has gone from bragging to expressing shame and profound regret for his actions; and (vi) he no longer aspires to or worships the “gansta” lifestyle.

[85] When I review the transcript of T.J.T.’s conversation with the undercover officer, I see a lost and confused young man who is desperately trying to seek validation and credibility for his actions. He reveals a lack of sophistication or understanding for the seriousness of both his conduct and the consequences arising from such conduct. He also reveals a clear picture of what he intended and what he understood. He displayed characteristics of a youth who was too immature to recognize the extent of the harm and horror he caused by his actions.

[86] I also take into account that I am assessing T.J.T.’s level of maturity and sophistication at the time of the shooting. His continuing maturity while at Sprucedale highlights his immaturity at the time of the murder. His improvement in behaviour, attitude, and self-awareness reflect his ability and willingness to improve.

[87] The Crown has failed to satisfy me that T.J.T. possessed the necessary level of moral sophistication, judgement, and capacity of an adult at the time of the murder. Rather, he displayed immaturity, vulnerability, short-sightedness and a lack of sophistication or appreciation for the consequences of his actions.

[88] Overall, when I consider all of the circumstances of T.J.T. and of the offence, and when I take into account his demonstrated level of maturity, moral sophistication, and capacity of independent judgment at the time of the killing, I conclude that the Crown has not rebutted the presumption of diminished moral blameworthiness or culpability. His behaviour that early morning reflects an immature, impulsive, and irresponsible youth who lacks an adult understanding of the true seriousness or consequences of his behaviour.

[89] Accordingly, the Crown’s failure to rebut the presumption means that the application fails. However, for completeness I will address the second prong of the test.

[90] I next turn to the issue of accountability.

(ii) Accountability

[91] As earlier referenced, the maximum sentence available under the YCJA for the offence of second degree murder is seven years with a four year maximum custodial period and the remaining time by way of a conditional supervision order in the community.

[92] Accordingly, I must next determine whether the availability of the above sentence would be sufficient to hold T.J.T. accountable for his actions.

[93] Accountability is a word that appears often in the context of the YCJA. More specifically it is specifically referred in s. 38(1) which states:

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.

[94] Additionally, s. 38(2) sets out a number of factors to consider including parity, proportionality, rehabilitation, deterrence, and denunciation. Section 38(3) requires that I also take into account the role the offender played in the offence, the harm done, any reparations made, pre-sentence custody, any prior convictions, and other aggravating or mitigating circumstances.

[95] These factors must be balanced against the declaration of principles set forth in s. 3(1)(b)(ii) which reads:

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity.

[96] I must take into account the extent of the risk-taking, the harm caused and the normative character of T.J.T.’s conduct.

[97] Although rehabilitation and reintegration remain important considerations for accountability, I must also consider the principle of retribution and the need to promote public confidence in the administration of justice through the imposition of meaningful sanctions that adequately reflect the moral culpability of the offender. See R. v. Ellacott, 2017 ONCA 681 at para. 35 referring to R. v. O. (A.) supra, at paras. 46-47 [3].

[98] I return to the s. 34 YCJA assessment and specifically note the following positive comments made about T.J.T.:

(i) significant academic effort and progress and an excellent student; (ii) well-mannered and polite with strong social skills; and (iii) growth in both his maturity and social skills.

[99] I balance these with some of the following concerning observations:

(i) a guarded young person with inflated self-esteem and a lack of adequate feelings of guilt with respect to this offence; (ii) an attitude of indifference with respect to his anti-social behaviour and the gravity and severity of this offence; (iii) a reluctance to either seek out or accept help for counselling for these behaviours that constitute an increased risk for future offending; (iv) no realistic strategies to sustain a successful lifestyle change upon release; and (v) an evaluation of T.J.T. that concludes (by way of clinical override) that he is at high risk to re-offend.

[100] The s. 34 report concludes that he is at the “very early stage of therapeutic gain” and would benefit from an “extensive period” of structured surroundings, and intensive counselling that focuses on self-reflection, awareness, anti-social beliefs, and attitudes.

[101] There is scant evidence before me of such structured surroundings in his hometown. To the contrary, issues relating to poor lifestyle choices and negative peer relations coupled with a lack of discipline and supervision appear on-going albeit with an indication of some improvements on the horizon. His time at Sprucedale has been highly regulated and supervised and it is little surprise that such surroundings have permitted gains, both socially and academically. The s. 34 report makes clear that T.J.T. would benefit from an extensive period of structured surroundings to manage the many risks that exist.

[102] He has now been in custody for just short of three years. If he is given basic credit for this pre-trial custody (1:1), he has just over a year remaining in the custodial portion of his youth sentence. This means he potentially would be nineteen years of age when released into the community and would complete the community supervised order component of his sentence by age twenty-two. This is to be contrasted with an adult sentence that would see his parole eligibility date fixed at between five and seven years in accordance with s. 745.1(a) of the Criminal Code. If given enhanced credit (1.5:1), he would serve a further period of no less than six months, and no more than two years in custody. The key distinction lies in the fact that an adult sentence of life imprisonment means that, if paroled, he remains on parole for life.

[103] I am mindful of the fact that if I sentence T.J.T. as a youth, I am not obliged to give him 1:1 credit for time served as required for adults.

[104] However, I am still obligated to take into account the time T.J.T. has spent in custody as per s. 38(3)(d) of the YCJA, but retain a broad discretion as to the precise formula I apply. I cannot ignore or disregard almost three years of custody. This discretion to award a reduced credit or no credit is more pronounced in the context of a s. 64 YCJA application. More specifically, I need not deduct pre-trial custody in determining whether a youth court sentence would be sufficient to hold T.J.T. accountable for his actions. See R. v. Logan, 2009 ONCA 402, 97 O.R. (3d) 270 (C.A.) [4].

[105] In W. M., the Court of Appeal concluded that exercising discretion to impose youth sentences on top of time already served is consistent with the purpose and principles set out in the YCJA. More specifically, the court stated:

When a reviewing court concludes that the Crown has not overcome the presumption or that a youth sentence would otherwise be long enough to hold the young person sufficiently accountable for his or her criminal conduct, the court should not be precluded from imposing a youth sentence because of a concern that the sentence will not be of sufficient duration after having to deduct some or all of the time the young person spent in pre-sentence custody. See R. v. O. (K.), 2017 ONCA 106 at para. 36 and R. v. B. (M.), 2016 ONCA 760 at para. 10 [5].

[106] Precedent exists for imposing the maximum youth sentence and giving no credit for pre-trial time spent in custody. I must also take into account the potential for rehabilitation and reintegration within the timeframe of the maximum youth sentence.

[107] Is four more years in custody and three years of community supervision sufficient to accurately reflect the circumstances of the offence and of T.J.T.?

[108] If T.J.T. is given credit for pre-sentence custody, can he be sufficiently rehabilitated over the next year such that he can be safely released and reintegrated into the community under supervision?

[109] Although his lack of record, his age, his inability to comprehend the consequences of his actions, and his difficult upbringing are all factors that lean in favour of some credit for pre-sentence custody, I balance those against the very serious and callous nature of the offence, the post-offence bravado, the extent of the misconduct while initially in custody, the profound lack of appreciation for the severity of the offence, and the continued attitude of indifference toward some of these behaviours. I also accept that he has made impressive progress in many ways, but still has a long way to go with respect to accepting the need for and participating in specific counselling and treatment.

[110] Both parties accept that T.J.T. does not meet the pre-conditions set forth in s. 42(7) to qualify for an IRCS order. He does not suffer from a recognized mental illness or cognitive impairment.

[111] Turning to the specific facts before me, I am mindful of the following:

(i) murder is the most serious offence in the Criminal Code; (ii) T.J.T. must accept a high degree of culpability for his actions in pulling the trigger and killing Steve Sinclair, as his departure from the standard behaviour one would expect from fifteen year olds was significant; (iii) his tender age and demonstrated lack of maturity at the time of the murder, coupled with his vulnerability to be exploited by an unknown third party for cash; and (iv) his consistent and demonstrated good behaviour since April 2016. This final point is important because his change of behaviour began well before his trial and his finding of guilt. In other words, I accept his change as genuine and sincere and not simply as a manipulative strategy in the hopes of avoiding certain outcomes or consequences. This change is also consistent with strong prospects for rehabilitation and reintegration.

[112] It is undeniable that T.J.T. has made significant and sustained progress while in custody. He has proven that he responds well to a structured environment where he can mature, learn and develop the necessary life skills to permit his re-integration into society in the future. His rehabilitation potential is promising.

[113] T.J.T.’s early lack of remorse and insight has given way to genuine and profound regret for his actions. I accept that this is, in part, due to his maturation process over the past three years.

[114] The delivery of his comments to the court demonstrated the significant strides he has made to both improve himself and make amends for his despicable actions.

[115] The fact that the s. 34 assessors perceive him as a high-risk to re-offend at this time speaks to the need to ensure that he remain in an environment where he has access to programs, support, guidance, and direction. He has demonstrated to me that he responds well to his current environment.

[116] In weighing the competing objectives of accountability, I conclude that the imposition of a youth sentence would be sufficient to hold T.J.T. accountable for his actions. He has no criminal record and has never been the subject of a court order for supervision. He has taken many positive steps on the road to rehabilitation and reintegration. Simply put, the YCJA sentencing provisions available to me are sufficient to ensure appropriate sanctions and consequences for the offender that will ensure his rehabilitation and reintegration into society whilst maintaining public safety and public confidence in the justice system. Further, a youth sentence would sufficiently reflect the moral culpability of T.J.T., having regard for the normative character of his actions and the harm caused by them.

[117] However, his journey to full rehabilitation has just begun as he remains in the early stages of therapeutic gain.

[118] I now turn to the appropriate youth sentence in the circumstances.

Conclusion and Appropriate Youth Sentence

[119] I need not repeat many of the comments I have earlier made about the offence or the offender. I also take into account the enumerated factors in s. 42 and the principles set out in ss. 3 and 38 of the YCJA.

[120] This was a brutal and senseless murder. Steve Sinclair died in his wife’s arms and has left a devastating hole in the hearts of those who loved him.

[121] T.J.T. acted without foresight. His age, background and family circumstances rendered him vulnerable for exploitation. His reduced moral sophistication was displayed by his initial lack of regret for his actions and for the devastation he wreaked on others. His difficult and misguided upbringing contributed to his immaturity, impulsiveness, and desire to live a “gansta” lifestyle.

[122] On my rough calculations, he is five days shy of three full years spent in custody. Although his initial time in custody was plagued by immature, impulsive, and disrespectful behaviour, the past sixteen months have demonstrated a consistent pattern of respect, self-awareness, and hope for a better future.

[123] In accordance with the principles of the YCJA, any sentence must focus on proportionality, rehabilitation, and reintegration while holding him accountable for his actions and ensuring public protection.

[124] T.J.T. has made substantial progress over the last sixteen months. However, he remains at the very early stages of his therapeutic recovery and requires the benefit of a structured and supportive setting for many years in order to properly and safely be able to be reintegrated into his community and fully rehabilitated.

[125] He is not eligible for a ten year IRCS order as he does not suffer from a mental or psychological disorder or an emotional disturbance. In fact, he enjoys a fully functioning mind which is only recently expressing and demonstrating appropriate regret and remorse.

[126] The defense has specifically requested that if my analysis determines that the maximum youth sentence of four years custody followed by three years community supervision is necessary to hold the offender accountable for his actions, then I should impose such a sentence and give him no credit for his almost three years of time served.

[127] I treat as aggravating the following factors:

(i) the circumstances of the offence, including the planning, the violent and serious nature of the offence, and the harm caused; (ii) the use of a handgun to commit the offence; (iii) post-offence behaviour including fleeing from the scene, hiding certain evidence, the posting of a Facebook photo, and an initial lack of victim empathy (which included boasting and laughing about the murder); and (iv) initial behavioural problems when first held at Sprucedale.

[128] I consider the following factors as mitigating:

(i) age, race, background, and maturity of T.J.T. at the time of the offence; (ii) a very difficult upbringing; (iii) the demonstrated and substantial academic, social, and behavioural improvements made in the past sixteen months; and (iv) the sincere and genuine regret and remorse he now feels for his actions.

[129] In all of the circumstances, I am satisfied that this is one of those rare circumstances and exceptional cases where, after carefully considering the extensive time in pre-sentence custody, I must exercise my discretion and give T.J.T. no credit for pre-sentence custody. In doing so I take into account the following:

(i) T.J.T. did the actual killing which reflects his level of intentional risk-taking and responsibility for the harm caused; (ii) the existing custodial arrangement has proven effective in advancing T.J.T.’s level of maturity, social awareness, and social behaviour; (iii) the need to balance T.J.T.’s interests against societal interests of ensuring meaningful sanctions that protect the community and ensure confidence in the criminal justice system; (iv) T.J.T. remains a high-risk to re-offend and is at the early stages of therapeutic recovery and programming; and (v) his time spent in pre-sentence custody is recognized both as a credit towards improving his prospects for rehabilitation and reintegration and as a factor in determining whether he should be sentenced as a youth or as an adult.

[130] If sentenced as a youth, s. 42(2)(q)(ii)(A) of the YCJA provides for a maximum custodial term of four years. If given 1:1 credit for pre-sentence custody, that leaves one year in custody. A further period of custody of one year is wholly insufficient in length to properly hold T.J.T. accountable for his actions or protect society, or properly allow for his rehabilitation.

[131] In weighing and balancing the objectives enumerated under the YCJA, I am satisfied that T.J.T. can be held accountable for his actions by the imposition of the maximum sentence available to me under the YCJA. In other words, such a sentence permits me to address and balance both the needs of T.J.T. and public safety concerns. In doing so, I wish to send a clear message to T.J.T. and to the family of Steve Sinclair that his actions on that day require a further seven year sentence to hold him accountable and represent a meaningful consequence for the senseless murder of Steve Sinclair. Simply put, the reason for not giving credit for time served in pre-sentence custody is my assessment that the maximum custodial period of four years followed by three years community supervision is required in these circumstances to hold T.J.T. accountable, protect the public, and to ensure his rehabilitation and reintegration into society. The reduced period of community supervision addresses the mitigating circumstances that a lifetime on parole would not recognize. The provisions of the YCJA better equip me to craft a sentence that will permit T.J.T.’s safe return into society.

[132] Given that T.J.T. has been in custody for three years and will now be subject to a further sentence of seven years, the total period of time that he will be in custody or under strict community supervision (ten years) will reflect more than 40% of his life so far. The ability to impose the maximum custodial youth sentence along with no credit for pre-sentence custody is appropriate in these circumstances because of T.J.T.’s demonstrated but early efforts towards a pro-social lifestyle.

[133] Accordingly, the sentence shall be seven years with the first four years spent in custody, and the remaining three under community supervision. This sentence reflects meaningful consequences while ensuring public safety and respect for the proper administration of justice.

[134] In accordance with s. 93(1) of the YCJA, T.J.T. shall be placed in a youth custody facility until his 20th birthday, and thereafter, shall be transferred to a provincial correctional facility for adults to serve the remainder of his custodial sentence unless the provincial director orders that he continue to serve the remainder of the youth sentence in a youth custody facility. The rationale behind this order is the availability of programs to benefit T.J.T. and his early attitude towards engaging and taking full advantage of such opportunities. These additional four years of custody are necessary both to reflect the seriousness of the offence and to provide sufficient opportunity for rehabilitation.

[135] He shall be brought before this court at least one month before the expiry of the custodial portion of his sentence at which time, after being given an opportunity to be heard, conditions shall be set or confirmed for his three year conditional supervision order in accordance with s. 105 of the YCJA.

[136] However, in the interim, I will set the following conditions in accordance with s. 105 for his conditional supervision order:

T.J.T. shall:

(a) keep the peace and be of good behaviour; (b) appear before the youth justice court when required by the court to do so; (c) inform the provincial director immediately on being arrested or questioned by the police; (d) report to the police, or any named individual, as instructed by the provincial director; (e) reside at a place directed by the provincial director and report immediately to the clerk of the youth justice court or the provincial director any change (i) in that address, (ii) in the young person’s normal occupation, including employment, vocational or educational training and volunteer work, (iii) in the young person’s family or financial situation, and (iv) in any other circumstances that may reasonably be expected to affect the young person’s ability to comply with the conditions of the order; (f) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order; (g) comply with any reasonable instructions that the provincial director considers necessary in respect of any condition of the conditional supervision in order to prevent a breach of that condition or to protect society; (h) take such counselling or programming as directed by the provincial director; including counselling that focuses on self-reflection, self-awareness and anti-social beliefs and attitudes; (i) abstain from the purchase, consumption or possession of alcohol or illegal substances, except with a medical prescription; (j) abstain from contacting or communicating with the following persons: 1. Elias Akhi 2. Aisa Husaini 3. Yasin Siddique 4. Andrew Chesson 5. Justin Harwood 6. Eric Mason 7. Chelsea Smith 8. Alex LA 9. Cameron MacDonald 10. Corey Parnell 11. Taylor Pasco 12. James Thompson 13. Schakeil Nixon 14. Mohammed Geele 15. Abbas Alebeid 16. Jessica Gortych 17. Markell Goodhall (k) not to attend at the City of London, unless required by law to do so; and (l) attend school or make reasonable efforts to obtain and maintain suitable employment.

[137] If you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of the second period in custody as well. You should also be aware that, under other provisions of the Youth Criminal Justice Act, a court could require you to serve the second period in custody as well. The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence.

[138] I also make the following ancillary orders:

(i) pursuant to s. 487.05(1) of the Criminal Code, a DNA order authorizing the taking of samples of bodily substances for the purpose of forensic DNA analysis; (ii) pursuant to ss. 51(1) and 51(2) of the YCJA, T.J.T. shall be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for life; and (iii) pursuant to s. 42(2)(j) of the YCJA, an order for forfeiture of the offender’s cell phone.

[139] In accordance with s. 51(5) of the YCJA, I articulate for the record the clear and obvious reason for the weapons prohibition order, namely the discharge of a loaded firearm three times in a crowded public area leading to the killing of the deceased and the interests of public safety, including the safety of T.J.T..

[140] Do either the Crown or the defence wish to speak to any of these conditions at this time?

[141] This sentence is a sentence that is most likely to rehabilitate T.J.T. and permit his successful reintegration into society. The length is sufficient to hold him accountable and, in the circumstances, reflects the least restrictive option for achieving the stated purposes and objectives of sentence under the YCJA. The sentence is sufficient in length to reflect both the seriousness of the offence and the offender’s role in the offence. It is also consistent with Parliament’s determination of the maximum sentence for a young person of this age who commits second degree murder, and the recognized principle that reserving the maximum sentence for the worst case is not wholly applicable in a youth court sentencing.

[142] I wish to conclude by thanking the family of Steve Sinclair for sharing with me and with the offender the profound, tragic and devastating impact his senseless death has had on each of you. I believe that T.J.T. now appreciates the true consequences of his actions and appears motivated and committed to changing his ways. I hope that T.J.T.’s genuine and profound remorse and regret at this stage of his life brings to the family of Steve Sinclair a modest measure of comfort and closure. Nothing I say or do can replace the life that has been lost or remove the pain and anguish that remains in the hearts of so many. If T.J.T. truly desires to make amends for his crime, he will remain committed to the path of recovery, maturity, and personal growth to become a productive, respectful, and positive member of society.

“Justice M.A. Garson” Justice M.A. Garson Released: September 10, 2018