COURT FILE NO.: 17-7924 DATE: 2019/06/03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – T.F.D. Accused

Counsel: Jon Fuller, for the Crown Gary Barnes and Céline Dostaler, for T.F.D., a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c.1

HEARD: April 24, 2019

SENTENCING DECISION

RATUSHNY J.

A. Overview and Issue

[1] Keith Fitzsimmons was fatally shot on December 23, 2017. He was killed by a single gunshot wound to his heart. It severed his aorta. The bullet entered through his back and was found lodged in his heart. He was soon to celebrate his 50th birthday.

[2] I thank Keith Fitzsimmons’ family and friends for their heart-felt and poignant victim impact statements. While I recognize I am stating the obvious, I do wish to acknowledge their pain in following this sentencing proceeding where the court must consider how to best give the shooter more chances in life, while Keith Fitzsimmons has none.

[3] TFD, a young person under the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA), has pled guilty to the second degree murder of Keith Fitzsimmons. TFD was 15 years of age and 3 months shy of his 16th birthday at the time he used his sawed-off rifle to fire at Keith Fitzsimmons. The two had never met before.

[4] TFD is now 17 years of age. His date of birth is […], 2002. He was arrested on December 23, 2017. Since his arrest, he has been incarcerated in a youth custody facility for the last 527 days or, roughly, the last one year plus 5 months and 12 days.

[5] The Crown has applied under s. 64(1) of the YCJA for TFD to be sentenced as an adult, which, if granted and pursuant to s. 745.1 (a) of the Criminal Code, R.S.C., 1985, c. C-46, would result in a mandatory sentence of imprisonment for life without eligibility for parole until after TFD has served between 5 and 7 years of the sentence.

[6] The Crown recommends a 5-year period of parole ineligibility that runs from TFD’s date of arrest and custody, so that TFD would be able to remain at the youth custody facility until he reaches 20 years of age and parole eligibility at that time, pursuant to s. 76 of the YCJA.

[7] The Defence seeks the maximum youth sentence pursuant to s. 42(2)(r)(iii) of the YCJA, for an intensive rehabilitative custody and supervision order of 7 years, comprised of 4 years of intensive rehabilitative custody and 3 years of conditional supervision served in the community. The Defence requests an approximate 2-year enhanced credit for TFD’s pre-sentence custody, leaving him with 2 years left of intensive rehabilitative custody and 3 years under community supervision.

[8] An assessment of TFD pursuant to s. 34 of the YCJA has been conducted and a report prepared dated January 18, 2019 (the s. 34 Report). An Intensive Rehabilitative Custody and Supervision (IRCS) Suitability Assessment Report (the IRCS Report), dated March 27, 2019, pursuant to s. 42(7) of the YCJA has also been prepared. The IRCS Report outlines TFD’s suitability for the IRCS Program.

[9] The issue is whether TFD is to be sentenced as an adult or as a youth.

[10] The two possible sentences in terms of their custodial portion in a facility, and leaving aside for the moment the discretionary crediting of pre-sentence custody, have the potential to be quite similar because of the statutory limits applying to young persons. For a young person convicted of second degree murder committed when he was under the age of sixteen and who is sentenced as an adult, the period of parole ineligibility and, therefore, actual custody, is between 5 and 7 years pursuant to s. 745.1 (a) of the Criminal Code. For that same young person who is given a youth sentence, the custodial portion of it must not exceed 4 years pursuant to either s. 42(2)(q)(ii)(A) or s. 42(2)(r)(iii)(A) of the YCJA.

[11] Of course, however, an adult sentence imposes a mandatory lifetime of parole supervision after release from custody and a youth sentence under the above-referenced sections allows for a maximum 7 years sentence divided between no more than 4 years of custody with only the remainder under conditional supervision in the community.

[12] While these practical time considerations inform the consideration of the imposition of an adult sentence, the legislated test for an adult sentence under the YCJA is far broader, engaging YCJA principles and YCJA sentencing principles. That test is set out in s. 72(1) of the YCJA. I turn to its analysis as it applies to TFD, after considering the circumstances of the offence and of TFD.

B. The Facts of the Offence

[13] On the night of the shooting, TFD was with his friend and carried his sawed-off rifle on the bus to the friend’s apartment, tucked into his gym bag. The rifle was jointly possessed by TFD and his friend. TFD usually stored it under his bed at his parents’ home where he lived. The two had carried it with them on prior occasions. The plan was to spend the night playing video games and drinking alcohol. The rifle was placed under a mattress in the apartment. The friend’s girlfriend joined them later at the apartment.

[14] They all drank alcohol. TFD smoked marijuana. Sometime after 10 p.m., TFD also did 3 lines of cocaine. Between the three of them they consumed a 26-ounce bottle of bourbon over the evening.

[15] Around 11:30 p.m., TFD pulled out the rifle and as he left, suggested he was going out to rob a corner store. He returned shortly after and reported the store was closed. His friend teased him about being inept.

[16] Around 2:30 a.m., TFD became fixated on a white car he felt was parked outside the apartment for too long. He retrieved his rife and went outside.

[17] At about the same time, Keith Fitzsimmons and his friend Madeleine were walking to return to Madeleine’s home. They passed where TFD was standing, wearing a red balaclava. They paid no attention to him. After they had passed him and were at the front steps of her home, TFD ran up behind them and pointed his rifle at them, demanding they turn over their money or he would shoot them. Madeleine thought the gun was a toy and said she was going to call police. She went up her steps and inside to do so. The last words she heard Keith Fitzsimmons utter were “hey buddy” in a calm tone. Once inside, she heard a single gunshot and raced outside to find Keith face down on the ground. He had been shot in the back, directly through his heart. TFD was nowhere to be seen.

[18] TFD returned to his friend’s apartment. He told his friend and girlfriend what he had done. The friend took the rifle away from TFD and threatened that if he went to jail he would shoot both of them. He told them not to answer the door for the police.

[19] The police arrived shortly afterwards. TFD gave a statement to police at a later time, denying his involvement in the murder, denying he had consumed cocaine or any illicit drugs that evening, and claiming he had been asleep the whole time and had a total lack of memory about leaving the apartment. He said the gun was not his.

[20] A video was found on the friend’s phone, depicting TFD in his bedroom at his parents’ house a few days before the murder, filmed to a background of loud rap music. TFD is seen on the video wearing gloves and wiping down the stock and barrel of the rifle with tissue paper.

C. The Young Person

[21] The s. 34 Report and the IRCS Report supply detailed information about TFD.

(1) From the Section 34 Report

[22] TFD is generally healthy. He has supportive parents and is close to his paternal grandmother. His relationship with them was good until about age 11, when all he wanted to do was assert his independence, connect with his friends, do drugs and alcohol, and “be free”. And that is what he did. He began stealing from them to fund his drug purchases and lying to hide what he was doing. By age 12 or 13, TFD had begun using “harder” drugs than marijuana. His parents tried to curtail his behaviours but eventually gave up. They never evicted him from their home.

[23] He did well in school as an A/B student until he started using drugs in Grade 6. No learning disorder was ever identified. As TFD said, his only problem in school was motivation. After his drug use increased significantly, he often fought with his peers and his academic performance rapidly declined. He associated with other troubled adolescents who were also known to lie a lot and embellish their achievement. He said he would react with physical aggression if he perceived he was being picked on or verbally insulted. He was midway through Grade 10 at the time of the shooting.

[24] TFD said he used hard drugs to give him a power rush. When those effects wore off he would become depressed, but told no one of this. TFD used alcohol almost daily beginning at age 14 or 15 and suffered blackouts when he combined drugs and alcohol. Before the shooting, he was drinking about 750 ml. of alcohol daily.

[25] TFD’s parents noticed he would act out explosively and aggressively when confronted with his behaviours including stealing money from his family. They were unaware of the extent of his drug abuse. The paternal family history is significant for substance use disorders. TFD’s father had experienced addiction issues with cocaine and alcohol and had been assessed as having attention deficit hyperactivity disorder (ADHD) and social anxiety. With this background, TFD’s father encouraged TFD to attend NA meetings with him, but TFD refused. His parents’ attempts to have him connect with mental health and addiction professionals also failed because he refused to engage. Before the shooting, TFD had had no mental health treatment, counselling or attention for the effects he suffered, including blackouts, while combining a cocktail of drugs and alcohol. TFD acknowledged that he went to great lengths to conceal the extent of his drug and alcohol use from his immediate family.

[26] TFD said that on the night of the shooting, he was yearning for an adrenalin rush and just wanted to do something bad, to hurt someone, and to get some money from someone. He revealed that he and his friend had purchased the rifle about 2 months prior to the shooting, for protection, and they had planned on doing something with it. TFD had no prior experience with using a gun and so had been practicing with it, but had never directed it at anyone in particular. At the time of the shooting, TFD said he was intoxicated, hyper, and barely able to walk. He was angry at himself and others who did him wrong. TFD’s parents have described him as “a follower who wants to be a leader”.

[27] TFD was assessed by Dr. G. Motayne, a psychiatrist at the Family Court Clinic, and author of the s. 34 Report. Dr. Motayne diagnosed TFD with ADHD; sibling relational problem in remission; parent-child relational problem in remission; conduct disorder adolescent onset type; avoidant and antisocial personality traits; and severe substance use disorder involving alcohol, cannabis and opioid use.

[28] Dr. Motayne said at page 19 of the s. 34 Report,

It was apparent though, that in his inebriated state [at the time of the shooting] his judgment was compromised and that his reactions arose from his distressed, hostile and painful emotional state. It was also evident that he reacted spontaneously, with no consideration of the consequences at that time, and that his threat (and subsequent execution) of violence towards the victim helped him to identify with his co-accused whom he wanted [to] emulate, in terms of status, experience, power and belonging.

[29] Dr. Motayne assessed TFD’s risk for future serious violence, without supervision and opportunities for his active participation in treatment and rehabilitation, at moderate to high.

[30] In terms of TFD’s development since the shooting, Dr. Motayne reported that TFD’s former rocky relationship with his brother has improved, as has his relationship with his parents. TFD said he has been more honest with them about his life and has stopped lying to them. He said they have “always done right by me…but I haven’t done right by them”. His parents indicate they intend to remain supportive of him.

[31] Since his detention, TFD has completed his Grade 10 and has acquired an additional 8 credits for a total of 14 credits for his high school diploma. Dr. Motayne has assessed his intellectual functioning as being in the average range.

[32] TFD has started on a course of medications for his various symptoms.

[33] TFD has good insight into the “dreadfulness” of his actions. He says he feels horrible for what he did and would like to apologize to the man’s family. TFD told Dr. Motayne he is resolved to change the path he was following but acknowledged he liked the way “weed” made him feel and that his mind still wants him to smoke. He said he know he needs to learn to cope without weed. TFD plans to complete his high school education and hopes to qualify for a career in construction, woodworking, or other related fields.

[34] At pages 15-17 of the s. 34 Report, Dr. Motayne said that testing suggested TFD’s greatest challenges rest with behaviour regulation, especially with respect to impulsivity, and that he is a young man “with a strong sense of inadequacy and self-dissatisfaction that likely began in his early childhood and has persisted to date.”

[35] On page 16, Dr. Motayne also opined that TFD “has two protective factors, in that he has strong attachments and bonds to his parents and resilient personality traits. Additional protective factors include his potential for success in the trades and being future oriented” at the time of the s. 34 Report.

(2) From the IRCS Report

[36] The IRCS Report references the s. 34 Report and is similar to it in that it is detailed and dense.

[37] The IRCS Report reveals that TFD’s path to improvement has not always been smooth. TFD disclosed to staff at the youth custody facility that, as recently as November 2018, he attempted to purchase marijuana from another youth at the facility. Since his admission to the facility on December 23, 2017, his case management team has observed self-injurious behaviours. After conflict with peers or frustrations within the facility, TFD has punched walls and windows and banged his head on his mirror. TFD explained that he uses such forms of physical aggression as a form to release “energy” and pent up frustrations. Although he is reported to have had increased self-awareness of his poor tolerance for frustration towards himself and others, as recently as January 2019, TFD disclosed to a staff member feelings of wanting to stab another youth in the throat due to ongoing conflict with him.

[38] At page 5, the IRCS Report confirms that TFD’s family relationships, as of late, have improved and he has regretted his lack of awareness in the past towards the support he had. At page 6, his case management team has observed greater stabilization of mood and this has been equated to his openness to accepting support and his maintaining of the recommended pharmaceutical therapy.

[39] At pages 6-7 it is reported that TFD has acknowledged he lacks confidence in his abilities, and is therefore more difficult on himself and tends to be a perfectionist, to his detriment. His case management team recognizes TFD’s need to be a leader and that his lack of confidence has impeded his progress and resulted in a tendency to perceive the world as threatening where you have to “watch your back”.

[40] At page 9, TFD’s remorse for what he did is expressed and it indicates he has insight into how the victim’s family must feel and the anger they must understandably hold against him.

[41] In terms of pursuing his education, TFD’s teachers report, at page 9, states that he demonstrates strong independent working and resiliency skills in his daily efforts.

[42] TFD wants to return home once he is released from custody, but he is reluctant to return to the area where he participated in his past criminal activities and held negative peer associations (page 11). He is considering his paternal grandmother’s residence as an alternative home as she lives in a different part of Ottawa and is supportive of him.

[43] The IRCS Report goes on to recommend specialized treatments at pages 12-15, including group counselling/intervention, individual counselling, skill development, educational intervention, specialized services/programming, medical/physical health intervention, and reintegration services.

[44] At page 16, the IRCS Report concludes that TFD’s “needs may be best met in a youth facility where access to effective treatment, monitoring and rehabilitation can further support the long-term success for TFD in the community.” In the future, there would be a reintegration plan involving regular reintegration leaves to visit family members and participate in community events and activities, commencing during the period of secure custody and continuing once he is transitioned to an open custody facility (page 17).

[45] In focusing on TFD’s identified strengths, the IRCS Report, at pages 17-18, refers to his demonstrated willingness to explore his mental health and seek assistance when required, including maintaining his medication regime. It says that despite several setbacks in behaviours, TFD has worked diligently to improve. TFD has worked hard to achieve and excel in the school programming. His work ethic is called “tremendous” and that he “works like a workhorse”. TFD is described as kind-hearted. He has begun to build awareness of the negative effects his substance use including alcohol has had on his life and his vulnerability to using, and has requested assistance in this area. TFD has made gains in regards to his anger and frustration, although this continues to remain an area of need.

[46] It is also to be noted that TFD has pled guilty to second degree murder. His plea represents a significant acceptance of responsibility and a significant mitigating factor. Additionally, he has no prior criminal record.

D. The Crown’s Application for an Adult Sentence

[47] It is in this context of the circumstances of the offence and the young person that the Crown’s application for the imposition of an adult sentence on TFD is to be considered.

[48] Section 72(1) of the YCJA sets out the two-pronged test for the imposition of an adult sentence on a young person as follows,

s. 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.

[49] I am guided by the approach set out by Epstein J. A. in R. v. S.B. (appeal by M.W. and T.F.), 2017 ONCA 22, 134 O.R. (3d) 1, leave to appeal to the S.C.C. dismissed, [2017] S.C.C.A. No. 109, particularly at paras. 11-23, 85, 93-108, and 163-4, in determining whether the Crown has met its onus under s. 72(1) by overcoming the presumption set out in s. 72(1) (a) (the Presumption) and demonstrating, as required by s. 72(1) (b), that an adult sentence is warranted to hold TFD sufficiently accountable for his criminal actions (S.B., at para. 85).

(1) The Presumption

[50] With respect to the Presumption, I think it valuable to return to the recognition by Abella J. in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, that led to the 2012 incorporation of the presumption in s. 72(1) (a), all as expressed in S.B. at paras. 163- 164:

However, the YCJA is premised on the recognition that young people are constitutionally different than adults for sentencing purposes. As Abella J. recognized in [D.B.], because of their age, young people have heightened vulnerability and a reduced capacity for moral judgment. They tend to act without foresight and may lack empathy for those who may be victims of their wrongful acts. As a result, young persons who act out of immaturity or impulsiveness should not be dealt with as if they were proceeding with the same degree of insight into their wrongdoing as adults. These characteristics justify a statutory emphasis on ensuring that sentencing reflects the reduced maturity and moral sophistication of young people – even in circumstances where, as here, horrific crimes have been committed.

Ultimately, sentencing decisions for youth must focus on holding youth accountable, protecting the public and rehabilitating the young person.

[51] The Crown submits that the series of choices made by TFD before and after the crime together with the circumstances of the crime, all point to the Presumption having been rebutted: TFD had continuously supportive parents; he was non-compliant with his parents’ treatment efforts; he was a risk-taker; he lied to his parents about the scope of his drug problems; he associated for years with others involved in a criminal lifestyle; he went off his medication; he is of average intelligence; he decided to buy a gun and ammunition; he carried a loaded prohibited gun in public; he planned to do something with the gun; he carried it to his friend’s house; he loved the rush that alcohol and drugs gave him; he wanted an extra rush from robbing someone; he loaded the gun and masked himself while under the influence of alcohol and drugs; he shot a non-threatening stranger in the back; he ran away after the shooting; he lied to his parents and to police about having any involvement in the crime or with the gun.

[52] As stated in S.B. at paras. 96-98, in considering whether the Presumption has been rebutted, the focus must be on the issue of maturity, as the Presumption “assumes that all young people start from a position of lesser maturity, moral sophistication and capacity for independent judgment than adults.”

[53] In S.B., at para. 97, Epstein J. A. quotes from Nicholas Bala and Snaajeev Anand, Youth Criminal Justice Law, 3rd ed. (Toronto: Irwin Law, 2012), at p. 4. I include that reference as it is insightful and wise and helps, in my view, explain TFD’s actions as a young person:

Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self-awareness, and they may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why they committed a crime most frequently respond: “I don’t know.” This seemingly impertinent answer may simply reflect a lack of forethought or self-awareness, or non-responsiveness due to embarrassment and the shame of hindsight, or it may signal a more significant cognitive issue. Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. [Footnotes omitted.]

[54] I have concluded the Crown has been unable to rebut the Presumption.

[55] TFD’s crime was horrendous. He was looking for trouble, for his “rush”, while high on drugs and alcohol. He had been conducting himself in this way for years, since he was barely 12 years of age. He became a risk-taking youth. He buried his lack of self-esteem, as the s. 34 Report and the IRCS Report detail, in an attention-seeking criminal lifestyle where his childhood and adolescent insecurities became masked by drugs, alcohol, peer approval and depression. TFD continued to live at home, no doubt leaning on his family’s support without having the maturity to understand the value of that support. By his own admission, TFD was seriously impaired by drugs and alcohol on the night of the shooting.

[56] I agree with Defence counsel that TFD did just what some immature youths do for a variety of reasons: he hung out with other young criminals; crashed at others’ apartments; used drugs and alcohol as if there were no tomorrow and no consequences; became addicted to alcohol, marijuana, and opioids without understanding their dangers and the consequences; fooled around with a gun as though it were a toy and kept it under his bed at his parents’ home; travelled with it in public; talked “big” about robbing a corner store and then hid his anger and shame at being teased for failing; and kept drinking and using drugs until he could go and redeem himself. I accept that so very sadly, these were the actions of an impulsive, immature, and troubled adolescent whose judgment was further impaired by the consumption of alcohol and drugs.

[57] As Bala and Anand explain, and as Dr. Motayne confirms at page 19 of the s. 34 Report, as quoted above, at age 15, TFD was an exceedingly vulnerable youth, because of his personal history, who showed no self-awareness, foresight, or empathy in his actions. In his highly inebriated state on the evening of the shooting, his judgment was even further compromised.

[58] I conclude, therefore, that at the time of the shooting there is no evidence before me to rebut the presumption that on the night of the shooting, TFD was a young person of “lesser maturity, moral sophistication and capacity for independent judgment than adults” (S.B., at paras. 97-98).

(2) Accountability

[59] Even though the Crown is required to satisfy both parts of the test for an adult sentence and it has not succeeded in rebutting the Presumption so that TFD is to be given a youth sentence, I go on to consider accountability, the second part of the test in s. 72(1)(b), to complete my analysis of the Crown’s application.

[60] Additionally, an analysis of accountability is not “wasted” in these circumstances. It engages the same issues before me in determining a fit youth sentence for TFD according to the principles governing young persons and their sentencing under the YCJA. This point is made in S.B., at para. 104, that it is a “central premise of the YCJA [s. 3(1) (b)(ii)] that a young person’s lesser maturity should affect the extent to which they are held accountable for criminal conduct” and it is “this premise [that] connects the Presumption’s focus on maturity with the determination of accountability.”

[61] On the issue of accountability under s. 72(1) (b), I am again informed by S.B., particularly at paras. 99-108.

[62] Section 72(1)(b) requires an emphasis on “fair and proportionate accountability” in light of the principle of diminished moral blameworthiness or culpability for young persons as set out in s. 3(1) (b)(ii) of the YCJA.

[63] Section 72(1)(b) also requires consideration of the sentencing principles and objectives set out in s. 38 of the YCJA, including holding young persons’ accountable, promoting their rehabilitation and reintegration, reinforcing respect for societal values, promoting their sense of responsibility, considering all available sanctions other than custody that are reasonable, and considering the least restrictive sentence that is capable of achieving accountability, meaningful consequences and rehabilitation and reintegration into society. Additionally applicable to TFD’s sentencing, in my view, is denunciation of his crime and specific deterrence.

[64] After applying these sentencing principles and objectives under the YCJA to the young person’s circumstances and his offence, s. 72(1) (b) then requires the youth justice court to be satisfied that a youth sentence would not be of “sufficient length to hold the young person accountable” for his offending behaviour.

[65] In the case of a conviction for second degree murder, that “sufficient length” for second degree murder has been legislatively maximized under s. 42(2) (q)(ii) of the YCJA as not exceeding 7 years, with the custodial portion not exceeding 4 of those years, and the same under s. 42(2)(r)(iii) of the YCJA, if the young person is eligible for the IRCS Program.

[66] Where an adult sentence is determined to be appropriate for second degree murder committed by a young person, that “sufficient length” has already been legislatively set under s. 745.1 (a) of the Criminal Code, as reviewed before, as a sentence of imprisonment for life with eligibility for parole between 5 and 7 years of the life sentence having been served.

[67] This means that the determination of an appropriate sentence in terms of the accountability prong of the test for an an adult sentence, and equally applicable to a determination of an appropriate youth sentence, is undertaken within these legislated sentencing “bookends” applying to murders committed by young persons.

[68] A consideration of accountability and of a fit sentence according to all of these parameters necessarily involves a consideration of the circumstances of TFD’s crime, including his post-offence conduct and progress or lack of progress, his personal circumstances including his mental health diagnoses, his attitude to treatment and counselling, and his risk of recidivism.

[69] As stated in S.B., at para. 164, “Ultimately, sentencing decisions for youth must focus on holding youth accountable, protecting the public and rehabilitating the young person.”

[70] As outlined above, TFD has committed the most serious of crimes in frightening circumstances for all members of society who might find themselves to be at the wrong place at the wrong time, in the presence of an inebriated, aggressive, and masked young person carrying a loaded sawed-off rifle. His criminal lifestyle was in full and ugly bloom at that time. TFD has had and continues to have issues controlling his anger, frustration, and aggression. He might well have to struggle to control his severe substance abuse addictions for his lifetime. TFD has mental health issues that need to be addressed.

[71] There are glimmers of hope, however, due in large part, I have no doubt, to the good work done with TFD at the youth custody facility. He has begun to be open to changing his ways and accepting treatment and counselling. He continues to have the valuable support of his family that he now better appreciates. He has some insight into how he came to be where he is. He has indicated he wants to change. He has been accepted into the valuable IRCS Program. He is capable of doing much better in life.

[72] The IRCS Program is only available under a youth sentence. With TFD’s mental health issues, his severe addictions, his progress to date and the intensive treatment and rehabilitation measures available to him under the IRCS Program, the chances of this young person being rehabilitated and reintegrated successfully are greater, in my view, in a youth custody facility under the IRCS Program than if he were to be in that facility without those benefits and then be under lifetime parole supervision as an adult. For TFD, I conclude the public is better protected by the rehabilitation and reintegration focus of the IRCS Program.

[73] In my view, and specific to TFD’s personal circumstances, the maximum 7 years youth sentence available for his second degree murder under s. 42(2) of the YCJA, is, therefore, an appropriate sentence and one that is sufficiently long to hold this young person, now 17 years of age, accountable for the terrible crime he committed when he was a very immature 15 years of age.

[74] In all of TFD’s circumstances, even if it were to be found that the Presumption has been rebutted, I would conclude that the second prong in s. 72(1) (b) has not been satisfied.

[75] The Crown’s application is, accordingly, dismissed.

E. AN APPROPRIATE YOUTH SENTENCE FOR TFD

[76] The assessment of an appropriate sentence for TFD has largely been reviewed above.

[77] The serious nature of his crime is clearly an aggravating factor in determining an appropriate youth sentence for him within the 7-year maximum.

[78] TFD’s plea of guilt is an important acceptance of responsibility for his crime. It operates as a significant mitigating factor and may be a glimpse at his future successful rehabilitation and reintegration into society.

[79] However, TFD’s mental health issues, including his severe substance abuse addictions, all of which contributed to the shooting, together with his difficulties to date at his youth custody facility, all point to a long road ahead to allow for effective treatment and counselling and “reasonable assurance” (S.B., at para. 160) that his rehabilitation will be able to reach the stage where he can be safely reintegrated into society.

[80] I accept the opinions and recommendations in the s. 34 Report and the IRCS Report. Each report is detailed and excellent. TFD has been accepted into the IRCS Program and satisfies all the criteria in s. 42(7) of the YCJA for an IRCS order from this court. In my view as set out above, an IRCS order is the best way to deal with TFD and the issues that led him to take Keith Fitzsimmons’ life.

[81] TFD has spent the last 527 days or, roughly, one year and 5 months and 12 days, incarcerated in a youth custody facility. It has not been wasted time as he has been able to engage in specialized supports at the facility. While he is entitled to be considered for a credit for that pre-sentence custody, as this time is to be taken “into account” in determining his youth sentence (s. 38(3) (d) of the YCJA), “the judge’s treatment of the pre-sentence custody is discretionary” (S.B., at para. 78).

[82] In balancing all of these circumstances of the offence and TFD, I conclude he is to be given the maximum youth sentence for second degree murder of 7 years and that this maximum is to start today and be in addition to his pre-sentence custody detention.

[83] Effectively, therefore, TFD’s total sentence including his pre-sentence custody amounts to almost 8 ½ years for this crime of murder by a 15-year-old. It is this period of custody and supervision that I conclude, according to the principles and sentencing objectives of the YCJA, is necessary and appropriate for TFD in all of his circumstances as detailed above. It is of a length that not only holds TFD sufficiently accountable for his actions, but also provides protection to the public through effective rehabilitation.

[84] For all of these reasons, I make an IRCS Order under s. 42(2) (r)(iii) of the YCJA for a period of 7 years commencing today, comprised of committal to intensive rehabilitative custody to be served continuously for the first 4 years from today and then, subject to a continuation of custody under subsection 104(1) of the YCJA, a placement under conditional supervision to be served in the community for the remaining 3 years in accordance with s. 105 of the YCJA.

[85] Two additional orders follow which counsel agree are appropriate:

1. The first is a mandatory DNA order under s. 487.051(1) of the Criminal Code, requiring TFD to submit to the taking of a bodily sample for the purposes of DNA analysis and data bank storage; and
2. The second is a mandatory weapons prohibition under ss. 51(1) and (2) of the YCJA. That weapons prohibition order begins today. In submissions, I understood the Crown to indicate that its maximum length is 2 years after the young person has completed his custodial portion of the sentence. However, that is the minimum not the maximum length under s. 51(2) and I think it more appropriate that its length match TFD’s 7-year sentence. This means the weapons prohibition order is for a period of 7 years from today’s date.

Madam Justice Lynn Ratushny

Released: June 3, 2019