Superior Court of Justice - Ontario

Court File No.: 139/16 Date: 2019-11-18

Re: R. v. T.J.T.

Before: Justice M.A. Garson

Counsel: James Spangenberg, for the Crown Tyler MacDonald, for the Defendant

Heard: October 15, 2019

WARNING

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

(i) no person shall publish the name of a young person, or any other information related to the young person, if it would identify the young person as a young person dealt with under this Act.

(ii) no person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

(iii) every person who contravenes these provisions may be subject to prosecution and punishment upon conviction.

ENDORSEMENT

Introduction

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

[2] On September 10, 2018, I dismissed the Crown’s application to have T.J.T. sentenced as an adult (pursuant to s. 64(1) of the Youth Criminal Justice Act (“YCJA”)) and imposed a sentence of seven years - the first four years spent in secure custody and the remaining three under conditional supervision.

[3] Pursuant to s. 94(1) of the YCJA, T.J.T. now appears before me for his annual review of the youth sentence I imposed.

Young Persons Progress Report and Letters of Support

[4] In accordance with s. 94(9) of the YCJA, a report was prepared and submitted to me on T.J.T.’s performance in custody since September 10, 2018.

[5] T.J.T. has remained at the Sprucedale Youth Centre in Simcoe, Ontario since September 17, 2015.

[6] He has had forty-two individual therapy sessions with a psychotherapist where he has presented as open to clinical intervention and responded positively to therapy. These sessions have focussed on violence reduction, self-reflection, anger management, victim empathy, anti-social lifestyle, substance abuse, negative peer association, and family-related issues. According to Mauro DeLorenzi, psychotherapist, T.J.T. has progressed and matured in terms of his treatment goals.

[7] In March 2018 and January 2019, he received behavioural reports for disrespectful behaviour towards staff. There have been ongoing issues surrounding his phone use privileges.

[8] In June 2019, T.J.T. and two other youths were involved in a physical altercation with another peer. They followed a peer into a washroom and assaulted the peer. Police were called. No charges have been laid. T.J.T. showed little remorse at the time but accepted that this was a stupid thing to do.

[9] T.J.T. testified about this incident and about two verbal altercations with staff that led to behavioural reports. I need not get into the extensive details of the assault other than to indicate that T.J.T. testified that he expected a verbal confrontation to take place with his peer. I find this expectation to be an unreasonable one in these circumstances. He knew full well that an invitation to follow another offender into the washroom was an invitation to a potential fight. It was no coincidence that two of his friends entered the washroom at the same time. To his credit, he admitted that he probably swung at and struck the other offender. He may not have been looking for a fight, but he certainly was not looking to avoid a fight.

[10] Having regard to the two verbal altercations with staff at Sprucedale, his explanations provide context, not justification. In other words, he readily acknowledged that he was rude because he felt he was treated rudely. To his credit once again, he recognized that he should try and calm himself and not talk to staff when he is angry. Whether he swore at staff or swore as part of his singing along to rap lyrics is of little consequence to me. In the end, he acted disrespectfully, was punished, and was able to earn back his credits to return to the highest level of the behavioural program at Sprucedale.

[11] The assault and the two verbal altercations demonstrate to me the need for continued therapeutic and behavioural intervention.

[12] T.J.T. continues to struggle with who he is as a person and where he wants to go in life and would benefit from continued treatment and rehabilitation through continued counselling and programming.

[13] T.J.T. has demonstrated strong leadership skills and has moved up to level four of the facility’s four-tier behavioural program. He has achieved 26 credits towards his Ontario Secondary School Diploma, seven of those since his sentencing.

[14] T.J.T. has shared several comments over the past year suggesting that Sprucedale has nothing more to offer him by way of treatment, rehabilitation, counselling, or programming. However, within the past few months he has begun to articulate an interest in remaining at Sprucedale beyond his 20th birthday in February 2020.

[15] T.J.T. has expressed a desire to do better for himself, to prove he is a good person, and to continue to work on improving himself.

[16] The writer of the s. 94(9) report recommends continued involvement in individual therapy and, in light of the nature of the offence, a continuation or confirmation of his sentence at this time.

[17] Counsel for T.J.T. also filed three letters of support as follows:

(i) an update from Mauro DeLorenzi, psychotherapist, confirming T.J.T.’s involvement in many intensive sessions to address responsibility, to appreciate the gravity of his actions and the losses suffered, to address his negative lifestyle choices, and to re-establish positive family ties and social attitudes. He also noted his many positive strides and progress achieved while in custody;

(ii) a letter from T.J.T.’s mother confirming his improved ability to express and deal with his feelings and emotions, identifying his mentoring role to other youths including his younger brother, outlining a more stable home environment with more steady, regular, and full-time employment for most family members, and acknowledging his continued maturation, focus, and commitment to staying on the right track; and

(iii) a letter from a Youth Services Officer at Sprucedale responsible for T.J.T.’s case management confirming his leadership, hard work, positive attitude, and willingness to learn. T.J.T. is a mentor to other youth and has demonstrated a willingness to apply a therapeutic aspect when dealing with other youth and stressful situations. He has made significant progress and has excellent potential.

Positions of the Parties

[18] T.J.T. argues that he has made sufficient progress and should now be released under conditional supervision in the community. He suggests that such a variation is in both his personal interest and the community’s broader interest.

[19] Alternatively, if not released today, he seeks an earlier optional review sometime in the month of February 2020 and, in any event, before his 20th birthday on February 26, 2020.

[20] The Crown seeks a confirmation of the earlier sentence imposed and submits that, although some progress has been and continues to be made, T.J.T. falls short of the level of progress required in these circumstances. In other words, the Crown suggests that, given the very serious nature of the offence for which T.J.T. was sentenced, the threshold for progress is exceptional and has not been met on the evidentiary record filed.

The Law

[21] Section 94(19) of the YCJA requires that I have regard at this annual review to both the needs of the young person and the interests of society. They are not necessarily mutually exclusive. In other words, this section incorporates the principles of both rehabilitation and accountability. My task is to examine the needs and circumstances of T.J.T. as they appear today and to balance those with broader public interests. I may order early release if satisfied that the needs of T.J.T. and the interests of society are better served in doing so. See R. v. M.W., 2017 ONCA 22, at paras. 65 and 70.

[22] I may either confirm my original sentence, release T.J.T. under conditional supervision in the community, or fix an earlier optional review before February 26, 2020.

[23] The onus lies with T.J.T. to demonstrate that his release is justified in the circumstances.

[24] Section 94(6) sets out a non-exhaustive list of the grounds for an optional review of the youth sentence. While some previous cases have chosen not to rely on the s. 94(6) grounds at an annual review, others have considered and applied the grounds to annual mandatory reviews. Those cases that chose not to rely on the s. 94(6) factors often consider other factors that are very similar. I find these s. 94(6) factors to constitute a helpful and appropriate starting point. Accordingly, for the purposes of this review I will take into account the following:

(i) any progress made by T.J.T. sufficient to justify a change in his sentence;

(ii) any material changes in his circumstances that led to the original sentence;

(iii) the availability of programs and services that were not available to T.J.T. at the time of the original sentence;

(iv) greater opportunities for rehabilitation in the community; and

(v) any other grounds considered appropriate by me. In these circumstances, this includes both the serious nature of the offence and the need for accountability under the YCJA.

[25] Counsel for T.J.T. filed three cases for review. In R. v. J.J.M., 1993 CanLII 91 (SCC), [1993] 2 S.C.R. 421, at para. 37, Cory J. outlined the purpose behind a youth sentence review as an “incentive” to youth to demonstrate improvement in their behaviour, outlook, and performance, and as an opportunity for the court to assess any such improvement.

[26] In R. v. J.J., 2017 ONCJ 126, Felix J., while noting that the young person had demonstrated excellent progress and matured significantly, refused to vary his original sentence. Instead, he ordered an optional review four months later and, at para. 44, tipped his hand that he would “strongly consider that he be released on that very day under supervision in the community.” In that case, the offender was found guilty of robbery and sentenced to 15 months of custody, followed by 225 days of community supervision.

[27] In R. v. D.F., 2017 ONCJ 495, the offender pled guilty to a charge of second-degree murder and received a seven-year sentence – four years of secure custody and three years of community supervision. D.F. was 16 at the time of the offence with a significant criminal record. He was charged and convicted of further violent offences while in custody. He had a difficult and troubled background. This was his second annual review. He had been in custody for four years and eight months and was now eligible for parole due to the decision to transfer him to an adult facility. Konyer J. released D.F., finding that his time served was a meaningful consequence for his conduct and that he had been held accountable for his actions.

Discussion

[28] In my Reasons for Sentence of September 9, 2018, I reviewed the Pre-Sentence Report prepared and filed on March 27, 2018. At that time, I noted at least 18 behavioural reports relating to T.J.T. but none since April 2017. In other words, he had been report-free and of good behaviour for some 16 months before sentence. I also observed that T.J.T. appeared to be maturing in his interactions with peers and staff and was seen as a positive role model for other youth at that time.

[29] I also referred to a s. 24 YCJA psychological assessment. More specifically, at para. 40 of my Reasons for Sentence, I stated:

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

[30] Later, at para. 101 of my Reasons for Sentence, I noted the scant evidence before me at that time about structured surroundings in T.J.T.’s hometown and referenced his poor lifestyle choices, negative peer relations, and a lack of supervision and discipline.

[31] I remain mindful of the nature of this offence: three shots fired at close range with a handgun, mortally wounding Steve Sinclair. This was second degree murder, pre-planned and carefully executed, complete with a getaway plan.

[32] I recall the post-offence bravado, the profound lack of appreciation for the severity of the offence, and the continued attitude of indifference towards some of these behaviours. Clearly, these must be balanced against some impressive academic and behavioural progress.

[33] Although his progress is clear and undeniable, it falls far short of being sufficient to justify a change in his sentence at this time. Counsel for T.J.T. say he is a different person today than he was when he entered Sprucedale. I return to my earlier Reasons for Sentence where I noted at the last line of para. 76 that T.J.T. was “a different person today than he was when he entered Sprucedale.”

[34] I observe a path of steady progress, with some setbacks along the way, and, more importantly, with a significant portion of the journey remaining. T.J.T. remains in the early stages of therapeutic gain and rehabilitation. Programs and services that were available to him at the time of sentencing remain available. I am mindful that he is no longer resistant to such programs and services and has clearly benefitted from his involvement.

[35] There are limited other opportunities for greater rehabilitation in the community before me. The letter from his mother is a good start. Everyone in his immediate family seems to have a form of stable employment and his mother appears to have some capacity for increased supervision. T.J.T. will soon be twenty. Although well-intentioned, his mother’s short letter fails to address T.J.T.’s willingness to abide by any house rules his mother may put in place. There is no plan for a daily routine for T.J.T., for supervision, for restrictions on his peer network, or for peer relations. Although well-intentioned, I am not satisfied that the opportunities for T.J.T.’s rehabilitation are much better in the community. In fact, the evidence before me demonstrates they are much better while he remains in a well-structured, well-supervised, and well-supported setting equipped with programs and services to help him.

[36] This was a brutal and senseless murder. The deceased died in his wife’s arms. T.J.T.’s actions required a further seven-year sentence to both hold him accountable and impose a meaningful consequence for the murder of Steve Sinclair. Public protection remains important, as does his continued and on-going rehabilitation.

[37] Although I applaud and commend T.J.T. for his significant and continued progress, I note that he is early in the journey and that this is his first annual review. Put another way, he has made much progress and has much progress still to make.

[38] T.J.T. spoke at the hearing. He did not want his minor setbacks to detract from the good things he has accomplished in custody. He told me he continues to work to better himself and that he is not the same person that he was at the time of the offence. He spoke eloquently, respectfully, and honestly. He acknowledged that there are things he still needs to work on.

[39] T.J.T. specifically asked me to outline what he can do to improve his chances of release if I choose not to release him today. I choose not to release him today. I offer the following non-exhaustive list for his consideration:

(i) respect staff at Sprucedale;

(ii) decline invitations to meet other offenders in the washroom where a confrontation is expected;

(iii) continue psychotherapy and other recommended treatment and counselling;

(iv) complete the credits necessary to achieve an Ontario Secondary School Diploma and take concrete steps to apply for post-secondary education and/or employment training; and

(v) continue to express genuine remorse for your actions and the horrific and tragic consequences of your actions and to grasp the enormity of the harm caused.

[40] This is not a sprint. It is a long-distance journey. Unlike the case of D.F., this is T.J.T.’s first review. Unlike the case of D.F., T.J.T. was found guilty and did not enter a plea of guilty. Although I acknowledge the many similarities between T.J.T. and D.F., there are important differences.

[41] In my Reasons for Sentence, I noted at para. 97 that:

Although rehabilitation and reintegration remain important considerations for accountability, I must also consider the principles of retribution and the need to promote public confidence in the administration of justice through the imposition of meaningful sanctions that adequately reflect the moral culpability of the offender.

[42] As referred to above at para. 29, T.J.T. is at the very early stage of therapeutic gain and would benefit from an extensive period of structured surroundings.

[43] Many of his academic and behavioural improvements were apparent to me at the time of sentence because of the highly structured, regulated, and supervised surroundings at Sprucedale.

[44] One additional year does not constitute an extensive period, nor does it exhaust available therapeutic gains. One additional year in custody does not promote public confidence as constituting sufficient accountability or a meaningful sanction for the offence of second-degree murder. T.J.T.’s behaviour over the past twelve months reflects a partial decline in his behaviour from the prior sixteen months before his sentencing.

[45] The erosion of public confidence would be substantial if I release you (T.J.T.) today. Notwithstanding your three years of pre-trial custody, one additional year is woefully insufficient to adequately and meaningfully address the need for accountability. You are too early in your journey. Your crime was too serious, too horrific, too tragic. Long-term protection of the public requires that you remain in custody.

[46] I decline the invitation to schedule an optional review in February 2020, in advance of your twentieth birthday. At para. 134 of my Reasons for Sentence, I directed that you be transferred to a provincial correctional facility for adults to serve the remainder of your custodial sentence unless the Provincial Director orders otherwise. Accordingly, your remedy, if any, in this regard lies with your request to the Provincial Director to remain at Sprucedale. At this time, your remedy does not lie with me. Continue to do what you are doing, only do it more consistently and for a longer period of time.

Conclusion

[47] For the above reasons, I confirm my original sentence and decline to release the offender or order an earlier optional review.

“Justice M.A. Garson”

Justice M.A. Garson

Date: November 18, 2019