Court File and Parties

Court File No.: YC-17-50000002-0000 Date: 2019-05-21 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – T.G. (Young Person) Defendant

Counsel: Elizabeth Nadeau, for the Crown Douglas Holt, for the Defendant

Heard: March 1, 2019

Before: Molloy J.

Reasons for Sentence

A. Introduction

[1] For reasons dated October 11, 2018, [1] I found T.G. guilty of: kidnapping with intent to hold for ransom with the use of a firearm; possession of a firearm (in connection with that offence); possession of heroin (laced with fentanyl) for the purposes of trafficking; possession of cocaine for the purposes of trafficking; and possession of proceeds of crime ($1900). The kidnapping and firearm charges occurred between April 19 and 21, 2016. T.G. was arrested for those offences on May 4, 2016. At the time of his arrest, he was found in possession of the heroin, crack cocaine and cash, which form the subject of the other charges. The two sets of charges are not related.

[2] T.G. was born on […], 1998. At the time of the kidnapping offences in April 2016, T.G. was 17 years old, just three weeks shy of his 18th birthday. He was arrested four days before his 18th birthday. He was therefore tried as a young offender. It is now my task to sentence T.G. for these crimes. T.G. is now 21 years old. The Crown seeks to have him sentenced as an adult.

[3] Counsel for T.G. concedes that a further period of incarceration is warranted for T.G. even though he has been in custody since his arrest on May 4, 2016, just over three years ago. However, he submits that the appropriate sentence in this case would be the maximum available under the Youth Criminal Justice Act (“YCJA”), [2] which would be an additional two years’ custody followed by one year of community supervision.

[4] The Crown submits that I should sentence T.G. as an adult and impose a global sentence of 9 years, from which would be deducted a credit for time served on the usual 1.5 to 1 basis. This would leave approximately 4 ½ years left to serve. She submits that in all of the circumstances a sentence imposed under the YCJA would not be of sufficient length to hold T.G. accountable for these offences.

[5] I agree with the position taken by the Crown. The offences are extremely serious. T.G. took a leadership role at all times. He was the directing mind and organizer of the criminal acts, even though some of the other offenders who committed the offence with him were older than he was. The YCJA presumption of diminished moral blameworthiness and culpability of young persons is rebutted. A further two years of custody and one year of supervision in the community would be woefully inadequate to hold T.G. accountable for his actions. The appropriate sentence for the kidnapping alone would be in the 6 to 8 year range. The drug offences are completely separate and should attract a consecutive sentence, which if considered alone would easily be 5 years. I recognize the combined impact of these sentences imposed consecutively and the totality principle requires a reduction. I consider 9 years to be a fair sentence in all of the circumstances.

[6] My detailed reasons follow.

B. Particulars of the Offences

The Kidnapping

[7] The kidnapping charge has its genesis in a party hosted by T.G. for a group of his friends. He used a false name to rent an Air BnB in a downtown Toronto condominium tower. The party was attended by T.G. and about 10 of his friends. It continued through April 18 and April 19. It featured numerous bottles of expensive brands of cognac and champagne. Two of the people there were M.C. (a 17-year-old who was from the Queen’s Drive area of Toronto) and M.C.’s 16-year-old friend K.P. Both M.C. and K.P. were later held captive by T.G. and his associates and M.C. is the complainant on the charges before me. Apart from M.C. everyone at the party was from either “Driftwood” or the “Jungle” areas of Toronto.

[8] On the night of April 19, a group of people from Queen’s Drive were phoning M.C. and suggesting he should not be hanging out with these guys from a rival gang area of Toronto. T.G. intervened in these calls and spoke with one of the Queen’s Drive guys, learning that they had in fact come to the building where the party was going on. The Queen’s Drive guy challenged T.G. and his group to come outside. T.G. and four other young men in his group armed themselves with handguns and went in search of their rivals, leaving M.C., K.P. and a few girls behind in the condo. The two rival groups found each other, which resulted in an exchange of gunfire in the hallway of the condominium building, although fortunately nobody was injured. T.G. and some of the others blamed M.C. for having set them up to be shot at by the Queen’s Drive guys. Everybody left the party, going in various ways to the home of one of them (nicknamed Ranski) at Swansea Mews, a townhouse complex. M.C. and K.P. went by cab with one of the Driftwood guys who had been at the party. T.G. drove to Swansea Mews in a car that he had rented using the same false name as he had used to rent the condo for the party. The car was parked at the condo during the party and later in the underground parking of the townhouse complex at Swansea.

[9] I am not able to say for certain when the plot to hold M.C. for ransom was hatched or who had the idea first. However, I am satisfied beyond a reasonable doubt that from the moment T.G. arrived at Swansea Mews, he was calling the shots.

[10] On April 21, M.C. was moved from Swansea to an apartment in the Jungle, and from there to a second apartment in another building in the jungle. He was transported, at gunpoint, in T.G.’s car with T.G. driving. While at these three locations, M.C. was tied up, threatened with firearms, punched, slapped, and kicked. T.G. did some of the beating himself, and others did so as well. This was a joint effort with a common purpose, making T.G. responsible for the whole of the physical abuse that was inflicted on the victim. This included Russian Roulette and being pistol whipped, burned with hot knives, and beaten with a board. That said, I note that M.C. told the police that T.G. was not involved in the Russian Roulette that occurred at Swansea. Given that T.G. arrived at Swansea after some of the others, it is possible it took place before his arrival. I am not satisfied beyond a reasonable doubt that he can be fixed with criminal responsibility for this aspect of the assaults on the victims.

[11] The kidnappers took photographs of M.C., tied up and bleeding, and sent them to his family. One photograph showed the kidnappers threatening to cut off one of M.C.’s fingers. T.G. personally handled the ransom negotiations by phone with M.C.’s brother, who was living in Alberta at the time and whom T.G. knew personally through prior dealings. T.G. arranged for the first installment of the ransom money to be delivered to his girlfriend’s bank account, and she then turned the cash equivalent over to him. T.G. drove M.C. to the final handover, releasing him to his mother in exchange for the final installment of the ransom payment.

The Drugs

[12] Police received information that T.G. was in Apartment 1509 at 33 Singer Court in Toronto, although he was not listed as a tenant there. Surveillance was maintained of the building and the unit while a search warrant was being sought. One of the surveillance officers saw a male person on the balcony smoking, singing, and pointing to a stack of money he had in one hand. I am satisfied beyond a reasonable doubt that this was T.G. Upon obtaining a warrant, the Emergency Task Force entered the apartment unit. T.G. was the lone occupant and he was immediately placed under arrest. The apartment was then searched. In that search, the police found in open view in the kitchen: a significant quantity of drugs; two cell phones plugged into charges; small baggies suitable for street-level drug packaging; and $1900 in $20 bills.

[13] I convicted T.G. of possession of heroin for the purposes of trafficking. The heroin, dangerous enough on its own, was laced with fentanyl, a common but lethal additive. The heroin and fentanyl combined weighed 9.5 grams, which if sold as heroin on the street would go for between $1,710 and $2,850, depending on the amount trafficked at any given sale.

[14] I also convicted T.G. of possession of crack cocaine for the purposes of trafficking. It weighed 7.85 grams and if sold on the street in typical $20 pieces, would bring in $1,560. If sold at the gram level, the value would be between $640 and $800.

[15] Finally, I found at trial that the $1900 in T.G.’s possession at the time was proceeds of crime. At paragraph 118 of my Reasons for Decision dated October 11, 2018, I held:

. . . T.G. was clearly engaged in a criminal lifestyle, as evidence in part by his participation in the kidnapping. The extent of that lifestyle is also apparent from many of the messages recovered from his phone. He had multiple cell phones and refers in messages on one of them to switching up his numbers frequently. He made several references to his fondness for “Henny,” an expensive cognac, which was one of the bottles found in the apartment on Front St. He was in the habit of renting cars and also renting condominiums in downtown Toronto for extended periods of time at the cost of $140 to $200 a night. Over the preceding months since February 2016, he had been spending up to $4,000 a month on such luxuries. He was 17 years old.

C. The Statutory Scheme

[16] The first step in the sentencing process for T.G. is to determine whether he should be sentenced under the YCJA, or as an adult. The onus is on the Crown to establish that sentencing T.G. as an adult is required in all the circumstances, bearing in mind the relevant statutory criteria. [3] In undertaking that analysis, I am also required to bear in mind that young adults have a lower level of maturity and capacity for moral judgment [4] and that imposing an adult sentence would have serious consequences, which should only be imposed “when necessary to fulfill the objectives of the YCJA.” [5]

[17] Before examining the legislative test for when an adult sentence should be imposed, it is important to consider the underlying purpose and objectives of the YCJA. Section 3(1)(a) of the Act states:

3 (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(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:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;

[18] Section 38(1) of the Act deals specifically with the purpose of sentencing under the YCJA as follows:

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.

[19] Not surprisingly, the YCJA places heavy emphasis on rehabilitation and reintegration of the young offender. However, other factors relevant to sentencing include: proportionality; the extent of the harm caused; prior record of offending; parity with other offenders in similar circumstances; denunciation; deterrence; and aggravating and mitigating circumstances. [6] The YCJA permits a custodial sentence only when other options are completely unsuitable. In this case, it is conceded that a custodial sentence is required. However, it is worth looking at s. 39(1) which sets out the factors to be considered in determining that a custodial sentence is appropriate, all of which are met for T.G. The section provides:

39(1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

(a) the young person has committed a violent offence;

(b) the young person has failed to comply with non-custodial sentences;

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

[20] The test to be applied in deciding whether to impose an adult sentence is set out in s. 72(1) of the Act. The presumption is that a youth sentence will be imposed and the onus is on the Crown to satisfy the court that the requirements of s. 72(1) have been met. That section states:

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.

D. Particulars of the Offender

[21] T.G. was born on […], 1998, and was within a few weeks of being 18 at the time of the kidnapping. He is now 21.

[22] T.G. is the middle of five sons born to his mother, A.G. One of those children shares the same father as T.G., but their father was shot and killed when T.G. was about three years old and he has little or no memory of him. T.G. was raised in the Lawrence Heights (“Jungle”) area, mostly by his single mother, but also by members of her family, notably his grandmother and aunt.

[23] Considerable material was filed on the sentencing providing particulars of T.G.’s childhood and adolescence including: social worker reports; probation officer reports; information about school and educational assessments; a Youth Risk/Need Assessment dated March 22, 2016 (prior to these offences); records from various youth custodial facilities where T.G. has been held since these offences; a pre-sentence report; and a full assessment prepared for these proceedings by the Youth Justice Assessment Clinic at the Centre for Addiction and Mental Health (“CAMH”). There is quite a bit of overlap in these various reports.

[24] One clear thing that emerges from these various materials is that T.G.’s mother is not a reliable source for anything. She has said different things at different times and is obviously prepared to shade the truth, and perhaps even lie outright, in order to assist her son. The same can be said for T.G. He has given very different versions of his own behavior at different times, as well as versions of things that are clearly untrue. He is not a reliable historian as to his own past. To the extent the authors of these various reports relied on information obtained from either T.G. or his mother, I approach their conclusions with caution.

Education

[25] I am not aware of any information as to T.G.’s progress from Kindergarten to Grade 2, other than that he had difficulty focusing (which is by no means unusual for children of that age). However, there were serious problems with his behaviour in Grade 3 and those problems continued and escalated through to 2016. He was placed in a behavioural classroom in Grade 3 and also struggled academically. His first suspension for poor behavior was in Grade 3. It was the first of many suspensions and expulsions over the years that T.G. was in the public school system from Grades 3 to 10. The reasons for his suspensions through those years included bullying, physical assault, harmful behavior, opposition to authority, fighting, use of weapons to harm or threaten others, and swearing at teachers. [7]

[26] T.G. was referred for a psycho-educational assessment in Grade 6 (2010) and diagnosed with a Learning Disability and Oppositional Defiant Disorder. Based on symptoms reported by teachers, a diagnosis of Attention Deficit/Hyperactivity Disorder (ADHD) was actively considered, but was not made because T.G.’s mother denied any such concerns at home. The report also noted that a Conduct Disorder was emerging. [8] Recommendations were made for a further assessment of the ADHD issue and a referral to the Hincks Dellcrest Centre for further assessment and intervention was suggested. [9] It does not appear that T.G.’s mother followed through with any of the recommendations or referrals set out in the report.

[27] In October 2012, T.G.’s mother was invited to a school support team meeting to discuss the problems T.G. was having in school. She did not attend and refused to give permission to the team to discuss a support plan for her son. In May 2013, T.G. was expelled for 20 days for threatening and assaulting another student. The high school reached out to T.G.’s mother suggesting a counseling program to help T.G. control his anger. T.G.’s mother refused, and transferred him to another school. The same kind of behavior continued in the next school. [10]

[28] T.G. had significant problems with attendance at all of the schools in which he was enrolled. By his own admission, when he did go to school, he hung out in the hallways rather than going into his classroom. By the time of the offences before me, he had essentially stopped going to school.

[29] T.G. has been in custody since his arrest on these charges. During that time, he has completed his Secondary School Diploma, graduating high school in June 2018. He has indicated he hopes to attend college and is interested in culinary arts, business management, and auto mechanics, although his main focus appears to be auto mechanics.

Criminal Record

[30] T.G.’s interaction with the justice system began in May 2014 (when he was just about 16). He was charged with assault and given a conditional discharge in Youth Court. In June 2015 he was charged with dangerous driving.

[31] On June 26, 2015, he was sentenced in Youth Court to one year probation and a one year prohibition from operating a motor vehicle. He was still subject to that probation order when the offences before me were committed, and was driving a motor vehicle at that time, in violation of the driving prohibition order.

[32] There was an extrajudicial sanction for some undisclosed matter on July 28, 2015 and another extrajudicial sanction on January 12, 2016, again for something not disclosed in the records.

[33] On October 18, 2016, T.G. was convicted in Youth Court for trafficking in a Schedule 1 substance, obstructing a peace officer, and two counts of failing to comply with a recognizance. He was put on probation for two years. These offences were committed prior to the offences before me, but he was sentenced after his arrest on these charges.

[34] On December 1, 2017, T.G. was sentenced to one day in custody for an assault that was committed while he was in custody pending his trial on the charges before me.

[35] In the period of time prior to these offences, T.G. was immersed in a criminal lifestyle. He was a drug dealer and was connected to criminal gangs. His nickname on the street was “Pistol.” He had multiple cell phones. Although only 17, he had false identification which he used to obtain a credit card. He drove around in cars he rented under that false identification, and had lavish parties in luxury suites he rented. His alcohol of choice was Hennessey, an expensive brand of cognac. At the party just prior to the kidnapping, he also provided expensive champagne for a birthday celebration. This attitude and identification with a gang culture continued after T.G. was in custody pending his trial. [11]

Conduct in Custody

[36] T.G. has been held in several youth facilities since his arrest in May 2016. The institutional records from those facilities are replete with Occurrence Reports and other documentation showing persistent problems with T.G.’s attitude and conduct.

[37] After his arrest, T.G. had been placed in the Roy McMurtry Youth Centre (RMYC). However, he was transferred not long after to the Cecil Facer Youth Centre in Sudbury because of security concerns. The social worker at RMYC indicated that T.G. had a “high profile” among youths in the Toronto area, which was problematic. At the time of his admission, Toronto Police advised that there would be safety concerns with respect to the Queens Drive area (in 12 Division), Queens Drive Crips, and Complex/Shots up Mafia (SUM). However, T.G. took the position upon admission that he “would have problems with and/or fight with any youth who are not Regent Park or Jane and Finch.” It was for this reason that he was moved away from Toronto. T.G. (and his mother) maintained that these security problems were not related to gang affiliation, but rather to the media coverage about the kidnapping. While it is true there was media coverage, and I also accept this would have exacerbated the safety issues for T.G., I do not accept that the security issues were unrelated to his ties to criminal gangs in Toronto.

[38] Reports from the Cecil Facer Youth Centre indicate many behavioural problems with T.G. while he was there including threatening and intimidating other youths, threatening and speaking disrespectfully to staff, attempting to import contraband, and failing to accept responsibility for his behavior. He attended school for a brief period but then maintained that, after reaching 18 and completing Grade 10, he did not require any further education and refused to attend thereafter. [12]

[39] T.G. was transferred from Cecil Facer Youth Centre to Brookside Youth Centre, which is located in Cobourg. There did not appear to be any improvement in his attitude or behaviour. He refused to participate in programming, was abusive and threatening to staff, was found in possession of marijuana, engaged in threatening and assaultive behaviour with other youth in the facility, and instigated fights between others. Staff also intercepted communications between T.G. and two other individuals who were involved in the kidnapping and with whom he was prohibited from having any contact. One of his attacks on another youth in the facility was sufficiently serious that police were called and criminal charges laid. T.G. was convicted of that assault as an adult. [13]

[40] Following Brookside, T.G. was returned to the Roy McMurty Youth Centre. He had also been there for brief periods while transitioning between facilities and for a month or so in the summer of 2017 before being returned to Brookside. He continues to be held there. Defence counsel (and T.G.’s mother) herald T.G.’s return to the RMYC as the beginning of his significant steps towards rehabilitation. Based on the records from the RMYC, I do not see it that way, although I recognize an improvement in more recent months and applaud, in particular, that T.G. has now finished all his high school credits and graduated.

[41] After his return to the RMYC, T.G. continued his violent and threatening behaviour towards other youth and towards staff. Towards the end of June 2018, staff learned that T.G. was instigating other youth throughout the institution to take part in a mass coordinated assault on staff. At the time, T.G. was housed in 3B and was inciting the other 3B residents to spread the word to other units while being transported to court and held in court cells. It was worth noting that at this time, T.G.’s trial before had just concluded. In an Occurrence Report dated June 27, 2018, a Youth Services Officer noted as follows:

I consider [T.G.] to be very dangerous since he has a lot of influence amongst his peers and is known to be very dangerous in the community. [T.G.] has a history of staff assault and had made serious threats of physical harm towards staff approximately a month ago that got him temporarily removed from the unit. Despite that drastic removal [T.G.] is still making serious threats of harm towards staff. This indicates [T.G.’s] lack of care and adherence to staff safety.

It is clear that [T.G.] is not someone who is going to change for the better, staff safety is at serious risk with this youth in the building; he has gang related peers who are willing to go along with his plans, such as [K.B.] who is also a very dangerous individual with a number of serious assaults at the RMYC. [14]

[42] In the course of preparing the CAMH assessment, the Unit Manager and the Social Worker at the RMYC were interviewed. The Unit Manager indicated that T.G. does not like to be challenged and will push back against authority. She said he was involved as a mentor for younger youth on the unit and generally did well, although he would inappropriately take the mentee’s side if the mentee engaged in problematic behaviours. She noted that T.G. was known in the institution as “a person who has status in the community.” Finally, she is quoted as saying that T.G. “has not been involved in any aggressive behaviours or altercations in the facility,” a statement that is clearly inaccurate in the broader context, but might have been referable only to a recent period of time. [15]

[43] The social worker at the RMYC also noted a positive change in T.G.’s functioning over the course of his stay at the RMYC. She described him as having leadership potential, stating that he “has a big reputation on the street” and that “youth idolize him.” She added, however, that “it would be preferable if he could be taught to use his leadership abilities in a positive manner,” a skill which she thought he “has not had the opportunity to develop.” She noted that T.G. was known to “participate in conversations with youth on the unit, during which the street life is glorified.” [16]

[44] I recognize that many of the Occurrence Reports from the institutions setting out various infractions by T.G. while in custody are based on hearsay information, sometimes from staff and sometimes from other youth in custody. Not all of these details may be accurate. With the exception of the assault conviction after the incident in Brookside, I cannot be satisfied beyond a reasonable doubt with respect to the individual incidents reported. However, there is a common theme that emerges from all of the reports across the three institutions. T.G. was persistently confrontational to authority, threatening both the residents and staff, constantly engaged in bullying and assaultive conduct towards other youths, and instigating them to engage in similar activity. He was found in possession of contraband, including marijuana and, on one occasion, a shank. I am satisfied beyond a reasonable doubt that this kind of conduct was typical for T.G. and continued throughout his time in custody, until towards the end of his time at the RMYC, just prior to his sentencing.

[45] In my view, the “leadership” abilities noted by some of the staff in these youth facilities is consistent with the manner in which the kidnapping and ransom negotiations were conducted. T.G. revels in his gang-style culture, inciting others to follow the same lifestyle and behaviours. As noted by several of the youth facility professionals, T.G. knew what to do to achieve benefits for himself within the institution and engaged in education and other programs primarily (if not entirely) to obtain those benefits. While I recognize some recent improvements, I have to wonder how much of it is designed by T.G. to make himself look better for the sentencing process. I approach his sudden rehabilitative progress with a degree of skepticism.

Youth Risk Need Assessment, March 2016

[46] In March, 2016, a Youth Risk Need Assessment was done by Diana Nikolaou, who was T.G.’s Probation Officer at the time. At that time, Ms. Nikolaou scored T.G. as being at an overall medium risk of reoffending. This was while he was on probation and a driving prohibition as a result of his dangerous driving conviction, and prior to his sentencing for drug trafficking and various obstruct and breach court order charges. It was also just one month before he committed the kidnapping and drug charges now before me.

[47] One of the components in the overall score was the low risk level score for family circumstances and parenting. A score of 0-2 would result in the “low risk” category and Ms. Nikolaou scored T.G. at 0. The report is highly positive with respect to T.G.’s mother’s expectations for her son, her consistent level of parenting, their positive relationship, stating that she maintained she always expects T.G. to be home by 9:00 and is aware of where he is at all times. None of this is true. At the time, T.G. was supposedly living with his aunt as a condition of his bail. He had a rental car in a false name and was regularly renting Air BnB condos for days at a time. Although T.G.’s mother paints herself as a concerned and supportive parent, she conceded elsewhere that she turned over a lot of the supervision and support to her two older sons (who were only two and four years older than T.G., and one of whom was clearly not a good role model). She was not supportive of steps taken at various times by school authorities to provide counselling and special programming for T.G. I note that she also alleged that she was an active advocate for T.G. while he was in custody and took credit for having him moved to the RMYC where his true rehabilitation began. In fact, T.G. went to RMYC because he was transferred out of Brookside as a result of violent acts and threats against youth and staff in that facility. Further, the social worker at the RMYC advised the authors of the CAMH Assessment that T.G.’s mother “does not participate in meetings with professionals at the RMYC and was described to be ‘hands off’ relevant to the system of detention facilities.” That characterization of T.G.’s mother is consistent with her interactions with school authorities when T.G. was in public school. T.G.’s mother is not, in my view, a positive support. There appears to be a loving relationship between her and her son. However, she does not supervise or influence him, and either has no idea what he is actually doing every day, or chooses not to know. She is an enabler. The score of 0 given on this category artificially reduced what the risk assessment would otherwise have been.

[48] In addition, at the time of this assessment, and unknown and unrecognized by Ms. Nikolaou, T.G. was regularly in breach of the driving prohibition he was subject to and in breach of his bail conditions. He was at this time continuing to traffic in drugs, which he later himself conceded. Ms. Nikolaou rated him as a 2 (Moderate) level of risk in the peer relations category based on his mother’s assertion that she knew and approved of his friends and that although she did not approve of the other offenders involved in his recent charges, he no longer had contact with them and was focusing on his education. T.G. was not focusing on his education at that time; he was not going to school. He was constantly hanging out with individuals who had ties to criminal gangs, and indeed was considered a leader among them.

[49] Also, Ms. Nikolaou rated T.G. as a 0 in the category of substance abuse based on T.G. reporting that he “never” used marijuana and other illegal substances and had tried alcohol “only once” at a New Years’ party. In fact, at that time T.G. was consuming marijuana two or three times a day, trafficking in marijuana and cocaine, and partying with alcohol on a regular basis with his beverage of choice being Hennessey cognac. [17] He admitted to the author of the pre-sentence report that on these occasions he would drink to the point of illness.

[50] Thus, many of the components that went into the medium risk rating were factually inaccurate. The truth would have been far more deleterious to his rating. Notwithstanding that, he still got a medium risk assessment and within one month committed the very serious offences now before me.

Pre-Sentence Report

[51] The Pre-Sentence Report for these offences was prepared by Fiona Kanhai, the Probation Officer who took over T.G.’s case after Ms. Nikolaou at the end of January, 2017. The Pre-Sentence Report suffers from the same weakness as Ms. Nikolaou’s risk assessment – undue and uncritical reliance on T.G.’s mother as a source of information.

[52] In the “Assessment and Recommendations” section of her report, Ms. Kanhai reported that while T.G. was under community supervision following his convictions for dangerous driving and drugs, he “was cooperative with his Probation Officer and followed through with direction.” I find it difficult to rationalize that conclusion with the facts – i.e. that during this time T.G. drove while prohibited, trafficked in drugs, associated with gang members, carried a firearm, failed to comply with multiple conditions of his release and probation, and committed the subject offences.

[53] T.G.’s mother denies any knowledge of T.G.’s associates who are criminals, denies any knowledge that T.G. was consuming drugs and alcohol, denies that T.G. has any involvement with criminal gang activity, maintains that the drugs which I found were in his possession for the purpose of trafficking actually belonged to someone else, and maintains that, but for T.G.’s kind and loving nature, the other people involved in the kidnapping would have killed the victim. It is hard to ascribe this completely inaccurate picture of T.G. as mere naiveté and ignorance, rather than active misrepresentation. However, whatever the reason, T.G.’s mother is simply not a reliable source of information with respect to her son. Further, she would be completely ineffectual as a source of influence or supervision if T.G. were to be released on community supervision.

[54] The Pre-Sentence Report contemplates that if T.G. is released into the community (which would have to be the case soon if he is to be sentenced as a youth), he would live with his mother. T.G.’s mother has repeatedly said that the difficulties T.G. got into were as a result of the dangerous and crime-ridden neighbourhood in which she resides with her children in the Jane and Sheppard area of Toronto. She has stated that she will move out of that neighbourhood as soon as T.G. is released. She now has a job at the airport, where she has worked for the past two years. However, she has taken no steps to do so, even though she has two young children still living with her. I would have no confidence that she would actually move to a different area upon T.G.’s release, nor would I have any confidence that he would actually reside with her even if ordered to do so. In any event, she is not a suitable person to supervise him.

[55] Although Ms. Kanhai states in the pre-sentence report that T.G. had voluntarily contacted her for support and provided notice that he had completed programs, even after he was no longer subject to a supervision order. I note, however, that Ms. Kanhai advised the authors of the CAMH Assessment that because T.G. was in custody she did not have “as in depth a role with him nor know him as well as she would if she were working with him in the community.” [18] Much of the pre-sentence report is based on information from T.G. and T.G.’s mother, neither of whom are reliable.

CAMH Assessment

[56] The CAMH assessment concluded that T.G. was at a medium risk to reoffend based on his history and psychological testing involving self-reporting. The authors recognized that an adult sentence would bring home to T.G. the seriousness of his offences, but queried whether it might be counterproductive because it would be for a longer period of time during which he would be associating with older adult criminals. In that situation, they are concerned that he would be more likely to shift from his current prosocial attitude and learn and acquire additional criminal attitudes and skills. In the opinion of the authors sentencing T.G. as a youth would permit him to reenter society sooner and get an earlier start at building a prosocial life, with a better chance of succeeding. They note that any period of unemployment would place T.G. at a greater risk of reoffending and that an adult record would make it more difficult to obtain employment. Their recommendation is that T.G. be sentenced as a youth and that he will need considerable “support, monitoring and close supervision” during the period of rehabilitation, which they estimate would be for 12-18 months. Psychological counselling and a number of support programs in the community were also recommended.

[57] The CAMH Assessment relies heavily on the results of interviews the authors conducted with T.G., T.G.’s mother, and many probation officers, social workers and staff at the various institutions where T.G. has been held in custody. There were some youth facility records referenced, but unfortunately just a small sampling, so the understanding of T.G.’s behaviour while in custody may not have been fully accurate.

[58] It is unfortunate that reliance was placed on T.G.’s mother and on T.G.’s own account of his conduct in connection with the subject offences. Although my written decision setting out my reasons for convicting T.G. of these offences was released on October 11, 2018 and the Assessment was not done until January 2019, it does not appear that any of my factual findings were taken into account. The decision is not mentioned in the list of information sources at the beginning of the report, nor is it referenced elsewhere. The only particulars of the offences appear to have come from T.G. and T.G.’s mother.

[59] T.G.’s mother told the authors of the report that on the night of the kidnapping offence, T.G. came home “hysterical” and said that he had been shot at by people who were trying to kill him. She said he was very nervous and could not stay at her home because “people knew where he lived and he could jeopardize his family’s safety.” T.G.’s motivation in leaving was not quite as noble as his mother portrayed it. In fact, he left her home to go to the place where the two victims of the kidnapping were being held captive, where he then took an active part in their beating and torture.

[60] T.G.’s mother testified that she could understand why her son would have little empathy for the victims of the kidnapping, stating that he had been “set up to die” and expressing her “disappointment that the Court did not acknowledge that.” In fact, there is no evidence that the victims of the kidnapping set T.G. up. Upon learning that the Queen’s Drive guys were at the building, T.G. and his associates did not seek to leave, did not call the police, and did not simply lie low until they were gone. Instead, they armed themselves with handguns and went looking for them. When they found them, shots were exchanged; this was not a one-way attack or ambush. Although T.G.’s mother sees her son as a victim in all of this, he is far from it.

[61] Her explanation for the shooting was that T.G. was merely “caught in the crosshairs of rival neighbourhoods” simply because of where he lived. She denied that he had any gang affiliation himself. With respect to the drug charges, T.G.’s mother continues to maintain that everything in the apartment belonged to someone else. None of this is true. T.G.’s mother did seem to recognize some aspect of T.G.’s criminal lifestyle because she acknowledged he had been arrested twice before. However, she said she could not remember the charges (which is telling!) and that he was compliant with his probation (which is untrue). In fairness, it would appear that the authors of the assessment did not rely on T.G.’s mothers denial of her son’s criminality, as they state (at p. 35 of the assessment) that T.G. “appears to have been immersed in a criminal subculture with older peers.”

[62] Finally, T.G.’s mother said that she was convinced that the only reason the two victims came out of their kidnapping alive was because her son “was there to make sure they were safe.” Nothing could be further from the truth.

[63] T.G. reported to the authors of the CAMH Assessment that he had been set up by individuals who “intended to harm and possibly kill him.” He told them about a previous incident when he was 15 and was shot at in his neighbourhood. He attributed this to rivalry between youths of different neighbourhoods. The authors of the report comment on this (at p. 35) stating:

…[T.G.] reported some post traumatic shock symptoms at the time and was fearful for his life. It is possible the shooting that preceded the events leading to the current charges before the court, may have awakened some of the prior traumatic symptoms and led to more intense anxiety and distress had he not been shot at previously. This may have contributed to his actions leading to the kidnapping and the charges for which he was found guilty.

[64] With respect to the kidnapping, T.G. told the authors of the report that: he tried to calm the situation; he had no knowledge of the alleged videotaping and was not present at any assault perpetrated on the victims; and he only acted as a kind of facilitator between the kidnappers and the victim’s family because he had a car and knew the victim’s brother.

[65] The authors of the Assessment appear to have recognized that T.G. was downplaying his own role, stating at p. 35 that he “seemed to minimize his role and responsibilities in the kidnapping.” It would also appear that they did not simply accept without question everything T.G.’s mother told them. At page 35 of the Assessment, they write:

While [T.G.] reports a mutually positive relationship with his mother, it may be that she was too ready to give him the benefit of the doubt and was insufficiently involved in supervising his behaviour especially as an adolescent. She deferred to his brothers, allowing them to offer advice and direction that may more appropriately have fallen within her mantle. Given that [T.G.’s] brothers were only two and four years older than he and one was arrested as a youth, it is likely they lacked the wisdom and maturity to offer [T.G.] the counsel he needed to make better decisions.

[66] Even though the authors of the Assessment may not have simply believed everything T.G. and his mother told them, the fact remains that they had no accurate information as to the full extent of the offences and the nature of T.G.’s pivotal role throughout. Had they known the real situation, their assessment of the role of post traumatic shock might have been different and they also might have had a different perspective on the prospects of rehabilitation within the 18 month window they recommended.

E. Analysis: An Adult Sentence is Required

[67] At the time of these offences, T.G. was almost 18. However, two of his associates in this offence had already turned 18. Therefore, they were charged as adults.

[68] One of those offenders, Rushine Rowe, left for Jamaica not long after the kidnapping for a pre-arranged trip. He came back voluntarily to face these charges, pleaded guilty, and expressed remorse. He was present for all of the events, but did not play a leadership role. He was 18 years old at the time and a first-time offender. He was sentenced to five years on a joint submission.

[69] The other offender, Lincoln Richards (known by the nickname “Ranski”), also pleaded guilty to kidnapping, in addition to possession of a firearm and to pointing a firearm at an unknown male (having been captured on video in an elevator at the condo building pointing a handgun at a person in the hallway). He was 23 years old at the time. He was the one who brought M.C. and K.P. to the party at the condo and it was his family home on Swansea where everybody gathered after the gunfight and where the detention and beating of M.C. began. Mr. Richards also had an encounter with M.C.’s mother, who ran into him on a neighbourhood street while M.C. was still being held captive, at which time he told her that M.C. deserved anything that happened to him. Also on that occasion, he showed M.C.’s mother that he had a gun in his pocket. However, Mr. Richards had no involvement with the continued detention and beatings of M.C. at the Jungle locations and no direct involvement in the ransom. He had a Youth Court record for possession of a firearm from 2009, and as an adult had a record of three counts of fail to comply with recognizance and one count of obstruct police. On a joint submission, he was sentenced to 6 years.

[70] At the time of the kidnapping, there was virtually no difference in age and maturity as between T.G. and Rushine Rowe. However, there was a considerable difference between T.G.’s level of culpability and degree of blameworthiness with respect to the kidnapping. Mr. Rowe was a participant and criminally responsible for everything that the group did to the victim. However, T.G. was the leader, the organizer, the one who took care of the transport, the one who conducted the negotiations for the ransom, and the one who collected the ransom money. He was the primary person at the heart of the operation. Mr. Rowe had the benefit of an early guilty plea and was sentenced to 5 years in a penitentiary for his role. It is difficult to countenance a lesser penalty for T.G.

[71] The defence seeks to characterize the kidnapping as an impulsive act, indicative of immaturity. I agree that the kidnapping was not planned in advance. Neither the accused nor his friends anticipated that the Queen’s Drive gang members would show up at the location of their party or that they would be involved in a shoot-out with them. It may well be that the initial decision to take T.G. and his friend captive was an impulsive, emotional act made in the heat of the moment after the exchange of gunfire. However, regardless of the initial motivation, this is not a situation that went on for minutes or hours – it continued for days in three separate locations. The ransom negotiations were carried out over a period of time and were cold and calculating.

[72] I am also skeptical about T.G.’s claim that he was traumatized by being shot at the time of the condo party. In various statements he has made to social workers and in the course of his assessment at CAMH, T.G. referred to being traumatized by the shooting. In his statement in court at the time of sentencing, he made a similar claim, stating, “I became upset and confused and was experiencing some signs of shock from the shooting that occurred earlier in the day.” [19] It must be remembered that this is not a situation where T.G. and his friends were suddenly set upon without warning and shot at. After receiving taunts from this rival group, T.G. and his associates did not call the police, nor did they simply remain in the safety of their condominium. Rather, T.G. and four others armed themselves with firearms and went looking for the other guys. When they found them, shots were exchanged; this was not a one-way attack or ambush. It must also be remembered that T.G. at this time was immersed in a criminal gang lifestyle. Although 17 years old, he was a drug dealer, he had false identification and a false credit card, he was driving rental cars and leasing luxury condominiums, he had a penchant for expensive champagne and cognac, and he was spending thousands of dollars a month on this criminal lifestyle.

[73] I also note a conversation between T.G. and M.C.’s brother in the course of the negotiations for the ransom payment. At this point in time, both M.C. and T.G. were still 17, but both were about to turn 18 within days of each other. M.C. told T.G. that he was on the run from the police because he was being charged for possession of two “hammers” (meaning firearms). T.G. was completely conversant with this language. He also seemed to understand the rationale of M.C. telling him that he was thinking he would turn himself in to the police before he reached his 18th birthday, both of them realizing the advantage of a lesser sentence if charged as a young offender. [20]

[74] At the time of this offence, on the cusp of his 18th birthday, T.G. was neither naïve nor immature. He was the organizer and primary leader of a serious crime of violence. He was not the one traumatized; he was the instigator of brutality against another youth, who was in fact deeply traumatized, as were that victim’s family members. I find that in all the circumstances, the “presumption of diminished moral blameworthiness or culpability” referred to in s. 72 of the YCJA has been rebutted.

[75] I am further of the view that an additional two years in custody and one year of supervision is not sufficient to hold T.G. accountable for the seriousness of these offences and the level of his personal responsibility. In coming to that conclusion, I am aware that if I sentence T.G. as a young offender, I do not need to give him any credit for the time already served. I could impose the maximum sentence permitted under the YCJA (two years in custody and one year community supervision) on top of the time already served. [21] If credit is given for the time served at 1.5 to 1, this would be the practical equivalent of 6 ½ years in custody, plus one year of the equivalent of a strict probation order. I could countenance such a sentence for the kidnapping charges alone, allowing for T.G.’s leadership role in the kidnapping, the gratuitous violence involved, and the fact that be committed the offence with a gun (while he was subject to a firearm prohibition order) and with a car (while he under a driving prohibition order) and while on bail. However, the kidnapping charges are not the only ones before the court. I do not accept that the drug charges should be concurrent. They are completely separate offences and T.G. should be held accountable for them.

[76] “Accountability” in the context of sentencing under the YCJA has a special meaning that is offender-centric in approach. At this stage, denunciation and deterrence are not factors. Rather, the issue is the imposition of sanctions that have “meaningful consequences” for the offender and which promote his “rehabilitation and reintegration into society.” It is relevant to have regard to the principles of proportionality and rehabilitation. With respect to proportionality, I must consider the moral blameworthiness of the offender, having regard to the offender’s intentional risk-taking, the harm caused, and the “normative character of the offender’s conduct.” I am mindful of s. 38(2) of the YCJA, which requires that “subject to proportionality concerns,” I must impose the least restrictive sentence and the one most likely to rehabilitate the offender, provided it is capable of achieving accountability. [22]

[77] Rehabilitation and reintegration into society are important considerations, but they are not the only considerations. I am not as optimistic about T.G.’s prospects for rehabilitation as are the authors of the CAMH Assessment. However, I do recognize that there is more than a faint hope that he will change his ways and enter into a more prosocial lifestyle upon release. I take particular encouragement from his Youth Engagement Worker, Andrew Bacchus, who is referenced in the CAMH Assessment as having seen increasing maturity in T.G. to the extent that he is now a positive influence on his peers, rather than the opposite. He also was of the view that T.G.’s plans for his future were “serious and realistic,” although I do note that T.G.’s plan involves moving back with his mother because “she was the most supportive.” It is clear to me that T.G. did whatever he wanted when he lived with his mother and that she exerted no control whatsoever over him. In my view, returning to that situation will not promote a responsible plan of rehabilitation. That said, I do not write off any realistic chance of rehabilitation. Although I remain to be fully convinced that the recent improvements noted in T.G.’s attitude are real as opposed to “playing the system” for the purposes of sentencing, I remain optimistic that with proper programming, commitment, and support, T.G. will in fact eventually leave custody to pursue a non-criminal lifestyle.

[78] However, I cannot fashion an appropriate sentence based solely on rehabilitation without regard to proportionality and accountability. The sentence available under the YCJA is simply inadequate to accomplish those objectives. Given T.G.’s age, he would not be serving a youth sentence in a youth facility in any event. There are programs available to assist in his rehabilitation and reintegration outside the young offender system, including within provincial and federal custodial facilities. In sentencing T.G. as an adult, I do not abandon the principle of rehabilitation. If I sentenced him as a youth, I would have to abandon proportionality and accountability.

[79] Accordingly, I find that in all of these circumstances, T.G. should be sentenced as an adult.

F. Appropriate Sentence for These Offences

Kidnapping Offences

[80] T.G.’s age at the time of this offence is a mitigating factor, as is the initial motivation for taking the captives in the wake of the shooting incident. The kidnapping was not, in that sense, premeditated. Given T.G.’s age, the impulsivity of the initial action can be seen as mitigating.

[81] The gratuitous violence involved and the relative youth of the victim are aggravating factors. The length of time the victim was held, and the planning involved in moving him from location to location, are factors warranting a longer sentence, balanced against the impulsivity of the initial act of taking the victims captive.

[82] As I have previously stated, T.G. played the central role in the offence and his degree of responsibility and moral blameworthiness is high. It is also aggravating that he was breaching multiple court orders while carrying out this offence with a gun, with a car, and while on bail.

[83] The minimum sentence for kidnapping for ransom using a firearm is five years. Notwithstanding the mitigating impact of T.G.’s age, the aggravating factors here require more than the minimum sentence.

[84] The defence cited the decision of the Ontario Court of Appeal in R. v. M.H., upholding an effective sentence of 6 ½ years for a kidnapping case in which a 17-year-old was sentenced as an adult. In that case, the accused and his 16-year-old co-accused approached a 66-year-old woman as she was getting into her car at a shopping centre parking lot, punched her and overpowered her, and forced her to drive them to various ATM machines where they managed to obtain $1300 in cash. They threatened to shoot her son if she did not give them her PIN number. Apart from the threat, there is no evidence of a gun being used. On several occasions when the co-accused was at the bank machine, M.H. sexually assaulted the victim. They then drove into the countryside and abandoned her in a ditch in minus 16 degree Celsius weather. Afterwards, they set fire to her car. The accused pleaded guilty to robbery, kidnapping, sexual assault and arson. He was given 2 ½ years credit for time served and then sentenced to 4 years for the kidnapping (an effective sentence of 6 ½ years). He was also sentenced to one year concurrent for arson and two years concurrent for robbery. On the sexual assault, he was sentenced to 2 ½ years, consecutive to the other sentences. The Court of Appeal upheld the sentence, stating that although it was at the high end of the range for a youthful offender, it was not outside the range, nor was it manifestly unfit, nor did it fail to give adequate weight to the principle of rehabilitation. Further, the Court of Appeal held that it was open to the sentencing judge to impose a consecutive sentence for the sexual assault as he had done.

[85] In the case before me, there was gratuitous violence against the complainant which was not the subject of a separate charge and which is therefore aggravating. There was no robbery or arson, but the victim was held for ransom and for a longer period of time. Further, T.G. does not have the benefit of a guilty plea as a mitigating factor. Although T.G. expressed remorse for his actions, and in particular for the effect of the kidnapping on the family of M.C., he did not do so until within the context of sentencing. His expressed remorse is possibly genuine, but given the timing, I do not see it as having a significant mitigating effect.

[86] In his statement to the Court at the time of sentencing, T.G. minimized his role in the kidnapping, which he is entitled to do. He pleaded not guilty to the charges and did not testify. He is not required to accept the details of my findings of fact as true. However, I do not accept his version of events as set out in his statement. I do recognize that T.G. does appear from this statement to have some insight into his conduct in the past, apologizes for his wrongdoing and promises to do better in the future. For this, he is entitled to some credit. For example, he wrote:

• By participating in this act [the ransom negotiations], I directly involved myself in a crime that shouldn’t have been committed. I was impulsive, irresponsible and reckless to think that I could take Justice into my own hands.
• Through this 3-year process [in custody] I have learned a lot about myself and how to live an honest lifestyle. I was placed in custody at 17 years of age, where at the time I was defiant to authorities as well as the law. I was also difficult, disrespectful, careless and misled.
• I promise I will continue on a positive path and contribute to society upon my release. I would like to ask the forgiveness of my victims, their families and the many people impacted by this incident.

[87] The parity principle also makes it relevant for me to consider the sentences given to the co-accused, particularly the five-year sentence imposed on Rushine Rowe, who pleaded guilty at an early stage, was approximately the same age as T.G., and had a lesser degree of culpability.

[88] In all of these circumstances, I find that the appropriate sentence for the kidnapping charge (Count 1) is 7 years. The count of possession of a restricted firearm (Count 2) is closely connected in time and location to the kidnapping charge. The firearm was possessed for purely criminal reasons and was carried in a public place, which is highly dangerous. In my view this conduct warrants a sentence of 4 years, concurrent with the kidnapping charge.

The Drug Offences

[89] The drug-related offences with which T.G. was charged arise from things found in his possession at the time of his arrest. The most serious of these is the conviction for possession of heroin for the purposes of trafficking (Count 4).

[90] Our courts have long recognized the dangerous nature of heroin and the menace it represents for our society. It is for that reason that higher sentences have typically been imposed for trafficking in heroin than has been the case for other drugs. In R. v. Pimentel, Hill J. did an extensive review of Ontario cases involving sentencing for trafficking in heroin. Those cases establish that heroin trafficking, even in small amounts and by a first-time offender, will call for a penitentiary sentence unless there are exceptional circumstances. In the cases surveyed by Hill J. involving possession for the purposes of trafficking and trafficking heroin in amounts under 10 grams, the sentences ranged from 3 years to 7 years. [23]

[91] In recent years, the danger represented by heroin has been eclipsed by the scourge that is fentanyl. More and more, fentanyl is being linked with fatalities in drug users. Frequently those individuals did not know they were injecting fentanyl, because it was mixed in with some other opioid, such as heroin. In this form, fentanyl is even more deadly than when it is trafficked on its own, because the drug users who ingest it do not know what they are putting into themselves, and are very vulnerable to overdosing. In one decision cited by the Crown, Edward J. of the Ontario Court of Justice, noted that there was expert evidence at trial before him that fentanyl was “up to 100 times more powerful than morphine and 20 times more powerful than heroin.” [24] For this reason, I see no merit to the defence argument that T.G. should be sentenced on the basis that the drug was pure heroin because there is no evidence that he knew about the presence of fentanyl. If T.G. knew about the fentanyl, that would be highly aggravating. However, trafficking in heroin laced with fentanyl is far worse than simply trafficking in heroin. This is the precise nature of the extreme danger of this combination. People do not know what they are ingesting until it is too late. While there is no evidence that T.G. knew about the presence of fentanyl, he knew the substance was illegal and was prepared to traffic in it without being certain as to its composition. That makes him fully responsible for possession of what the drug actually was, heroin laced with fentanyl, which he had in his possession for the purpose of selling it to others.

[92] In its 2017 decision in R. v. Loor, the Ontario Court of Appeal observed that it was too early to define a range for trafficking in fentanyl because there had not by that point been many cases to reach the appellate level. However, Laskin that, “I think it fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.”

[93] The Crown filed a number of cases dealing with trafficking in fentanyl, none of which involved the lethal mix of heroin and fentanyl. In those cases, the amounts of fentanyl ranged from 1.5 grams to 15 grams. The lowest sentence was 3 years and most were between 3 and 5 years. The longest sentence in the ones cited to me was for 6 years (R. v. Moore) in which the trial judge noted that powdered fentanyl was far more dangerous than fentanyl trafficked in patch form and should attract higher penalties. However, the amount of fentanyl involved in that case was almost 15 grams.

[99] I would therefore, reduce the overall sentence by 3 years, leaving 4 ½ years left to serve. I would allocate the total of 9 years as follows:

• Count 1 (Kidnapping while using firearm)--- 5 years
• Count 2 (possession restricted firearm)---3 years concurrent to Count 1
• Count 4 (possession for the purpose-heroin)---4 years consecutive to Count 1
• Count 5 (possession for the purpose-cocaine)---3 years concurrent
• Count 7 (proceeds of crime)---1 year concurrent

[100] Against that total sentence, T.G. is entitled to a credit for time served calculated at 1.5:1, which I round up to a credit of 4 years, 7 months, leaving 4 years and 5 months left to serve. In addition there shall be a DNA Order, a s. 109 weapons prohibition for life, and a forfeiture order with respect to the proceeds of crime seized at the time of T.G.’s arrest.

Provincial or Federal Institution

[101] Given that T.G. was under 18 at the time of this offence, I have a discretion I can exercise with respect to whether his sentence should be served in a provincial correctional institution, as opposed to a federal penitentiary. There is some merit to keeping T.G. in an environment in which he has less exposure to the hardened criminals he is more likely to encounter in the federal penitentiary system. However, there is an advantage in the federal system which allows for release on parole with supervision and supports designed to ensure an easier transition from the institution to the broader community.

[102] Before finalizing this aspect of my decision I sought further submissions from the defence and am now advised that T.G. would prefer to be in the federal penitentiary system. In my view, if T.G. continues on his current path, he would be a good candidate for early release on parole. It is important that there be support and guidance provided for that transition as T.G. has been in custody since he was 18. His transition from prison to living in the community should be carefully monitored with lots of support. In this regard, there are excellent suggestions for programming in both the pre-sentence report and the CAMH Assessment, both of which are being sent to Corrections Canada along with this decision. Finally, although I clearly have no authority to dictate the penitentiary to which T.G. should be sent, it is my strong recommendation that he be kept as close as possible to Toronto. He has strong ties to his family and interfering with those bonds would, in my view, undermine the progress he has made and the path to rehabilitation he still needs to travel.

Molloy J. Released: May 21, 2019

Footnotes

[1] R. v. T.G. and M.R., 2018 ONSC 5954 [2] S.C. 2002, c.1 [3] R. v. O.(A.) (2007), 2007 ONCA 144, 84 O.R. (3d) 561 (C.A.). [4] R. v. D. (B.) 2008 SCC 25, [2008] 2 S.C.R. 3 at paras. 59-64. [5] R. v. O.(A.), supra Note 3, at para. 38. [6] YCJA, ss. 38(2), 38(3) [7] Exhibit 3 on Sentencing, Tab 2, Youth Risk Need Assessment, at p.4 [8] Exhibit 2 on Sentencing, CAMH Assessment, at pp. 8-9 [9] Exhibit 3 on Sentencing, Tab 2, Youth Risk Need Assessment, at p.11 [10] Ibid [11] Reasons for Decision, supra, Note 1; Exhibit 3 on sentencing, Tab 4 [12] Exhibit 3, Tabs 4, 5, and 6; Exhibit 2, CAMH Assessment, at pp. 28-29 [13] Exhibit 3, Tabs 4, 5, 6 and 7; Exhibit 2, CAMH Assessment, at pp. 29-30 [14] Exhibit 3, Tab 5, pp. 16-17; and 18-19 [15] Exhibit 2, CAMH Assessment at pp. 25-26 [16] Exhibit 2, CAMH Assessment at pp. 26-27 [17] Exhibit 2, CAMH Assessment at p. 12. [18] Exhibit 1, Pre-Sentence Report at p. 12; Exhibit 2, CAMH Assessment, at p. 24. [19] Exhibit 8 at sentencing [20] Exhibit 3A, Transcript of Intercepted call between T.G. and M.C.’s brother on April 20, 2016 at pp. 11-13. [21] R. v. W.(M.), 2017 ONCA 22 at paras 77-79. [22] R. v. W.(M.), supra, Note 21, at paras. 99-104; R. v. O.(A.), supra, Note 3, at paras. 46-47 [23] R. v. Pimentel, [2004 O.J. No. 5780 (S.C.J.) and cases referred to therein. [24] R. v. Dalton, (O.C.J. in Brampton, May 31, 2018, Edward J., unreported)