Court File and Parties

COURT FILE NO.: 2/19

DATE: 2020-10-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Z.C.

COUNSEL:

Victoria Reid, for the Crown

Richard O’Brien, for ZC

HEARD: January 29, February 6, February 20, June 30, July 7, July 13, July 14, July 15, August 7, August 1, September 25, 2020

REASONS FOR SENTENCING

kurz j.

Introduction

[1] On October 31, 2019, ZC was found guilty by a jury, following a 32-day trial before me of the following offences:

a) five counts of Robbery with a Firearm, contrary to Criminal Code s. 344(1)(a.1);

b) three counts of Unlawful Confinement contrary to Criminal Code s. 279(2);

c) two counts of Possession of Property Obtained by Crime Over $5000 contrary to Criminal Code s. 354(1)(a).

[2] ZC also pleaded guilty to six counts of Fail to Comply with a probation order requiring him to keep the peace and be of good behaviour, contrary to the Youth Criminal Justice Act (“YCJA”) s. 137. Those counts arose from ZC’s violation of his probation orders by committing the offences set out above. He also pleaded guilty to one count of Possession of a Firearm in violation of a prohibition order, contrary to Criminal Code s. 117.01(1).

[3] ZC is now 19 years old. He committed the seventeen offences for which he was convicted when he was 16 ½ years old, during an eight-day period between December 22 and December 30, 2017. The offences relate to robberies of five convenience stores in Peel and Halton. In each of those robberies, ZC was either a direct participant or a party to the criminal conduct described below. At the time, he was on the run from the group home to which he had been assigned by the Catholic Children’s Aid Society of Toronto (“the CCAS”). He was a Crown ward of the CCAS (now a child in extended society care under the Child and Youth Family Services Act). He was also subject to the probation orders and prohibition order cited above.

[4] ZC ran from the group home on December 19, 2017. That date was one day after he was released from youth detention after serving a previous sentence. The terms of ZC’s release included that he report to the Brampton probation office within 48 hours and reside where directed. He failed to do either.

Jury Findings

[5] Based on the jury’s verdicts, I find that the jury must have accepted beyond a reasonable doubt the following facts:

Possession of property over $5,000 x 2:

[6] On December 22, 2017, Ronen Israelski’s Hyundai Santa Fe SUV (‘the Santa Fe”), was stolen from the driveway of his home. The theft occurred while the vehicle was warming up. The Santa Fe was used to transport ZC and the co-perpetrators to the site of each of the first four robberies for which he was convicted. On at least some, if not all of the occasions, ZC drove the vehicle to and or from the site of the robberies.

[7] On December 29, 2017 the Santa Fe was abandoned near the home of Robert Shirley, just as thieves stole Mr. Shirley’s black Mazda 3 vehicle from his driveway while it was warming up. That Mazda 3 is the vehicle used in the final robbery, of a Mac’s Milk store in Georgetown on December 30, 2017. That vehicle is the subject of ZC’s second possession over $5,000 conviction. ZC was one of the parties who possessed and drove that vehicle. He had the key to the car in his pocket at the time of the arrest.

Robbery with a Firearm #1: Quick Pik Convenience Store

[8] On December 22, 2017, after the Santa Fe was stolen from Mr. Israelski’s driveway, ZC and three fellow youths drove in the vehicle to the Quick Pik convenience store at 22 Miller Drive, Georgetown. All of the robbers, including ZC were masked. One of the robbers propped open the door. The act of propping open the door was repeated in the four other robberies for which ZC was convicted.

[9] The robbers attended the store with a firearm, as defined by the Criminal Code, a Browning 9 mm. handgun (“the firearm”). That firearm was used in this and each of the other four robberies for which ZC was convicted. The firearm was loaded and fully operating at the time of each of the offences. No shots were fired during any of the robberies.

[10] The robbers proceeded to rob the store and its clerk, Hardik Patel. During the course of the robbery, the person holding the firearm waved it at Mr. Patel and “pistol whipped” him in the head with the bottom of the firearm. Mr. Patel was not injured. The Crown does not allege that ZC was the one who hit Mr. Patel with the firearm.

[11] The three other robbers held knives during the robbery. Two of the robbers cut the electrical power to avoid detection. Because the youths were masked, I cannot say what exact role the jury found beyond a reasonable doubt that ZC played in the robbery. However all of the robbers were active participants.

Robbery with a Firearm #2 and Unlawful Confinement: Circle K Convenience Store

[12] On December 25, 2017, ZC and two other robbers attended at the Circle K convenience store, 2200 Queen Street East, Brampton. One of the robbers entered the store, unmasked, to scout it out. ZC and two others returned to rob the store. They were masked during the robbery. They used the firearm during the course of the robbery.

[13] During the course of the trial, ZC admitted, through counsel, that he was guilty of robbery with a firearm of the Circle K store and its store clerk, Yadvinder Singh, as well as the unlawful confinement of Mr. Singh.

[14] During the course of the robbery, Mr. Singh was frequently struck and his life was threatened. The firearm was passed back and forth between the robbers.

[15] During the robbery, Mr. Singh continuously protested that he would cooperate as best he could but pleaded that the robbers not harm him. He told the robbers that he had trouble following their various directions to turn off the power (in order to turn off the security equipment), open the till, and later open a safe, all because it was his first day of work.

[16] At one point in the robbery, one of the robbers pointed the firearm at the head of Mr. Singh while demanding access to the safe at the front of the store and while in the rear office of the store. The robber touched the barrel of the firearm to the back and side of Mr. Singh’s head. When Mr. Singh resisted and grabbed at the firearm, that robber struck out and pointed the firearm directly into the clerk’s face.

[17] At one point while in the back-room, Mr. Singh tried to flee out the emergency door. But one of the robbers holding the firearm used it to strike Mr. Singh in the head more than once. Mr. Singh tried to put his hands on the gun to push it away, at which point he was told not to put his hand on the gun, or he would be shot.

[18] When Mr. Singh was able to open a safe at the front of the store, there was only a small amount of money. One of the robbers stated “We don’t have any option. We will kill you. You are not giving us the money”. Mr. Singh volunteered that there may be money in a safe in the manager’s office.

[19] When they got to the office, Mr. Singh was unable to find the keys to the safe. That led the robbers to beat and kick him. They again threatened his life. When the key to the store’s ATM machine could not be found, one robber grabbed Mr. Singh’s cell phone (containing 4,000 of his photos) and his wallet. They took approximately $120 from his wallet and his ID. Mr. Singh kept telling them to take what they wished but to leave him.

[20] The robbers told Mr. Singh that if he called the police and they were caught, they could come back and kill him because they had his address from his identification. One robber also made him sign out of his Apple ID account.

[21] At one point, one robber stated that they were going to bind his hands. Another stated “We don’t let them live,” and spoke about the police being called. Mr. Singh suggested that the robbers lock him in a room. He stated that he had not signaled the police. The robbers tied his hands with the surveillance equipment cable and left him in the manager’s office with the door closed. Mr. Singh freed himself but waited until he heard the main door alarm beep (signaling that it had been opened) and carefully exited the manager’s room and went to the door of the shop.

[22] Despite ZC’s guilty pleas in regard to these offences, because the youths were masked, I cannot say what exact role ZC played in the robbery and lawful confinement. However all of the robbers were active participants.

Robbery with a Firearm #3: 7 Star Convenience Store

[23] On the morning of December 28, 2017, ZC and at least two other robbers attended at the 7 Star convenience store, 23 Conservation Dr., Brampton. They were all masked. They attended with the Browning firearm for use in the robbery. They robbed the store and its clerk, Inderjit Singh.

[24] One of the robbers held the Browning firearm as he entered the store. He controlled the store clerk, Inderjit Singh, with the firearm during most of the robbery. He pointed the firearm at Mr. Singh and searched his pockets. The robbers removed a number of items from the store.

[25] Because the youths were masked, I cannot say what exact role the jury found beyond a reasonable doubt that ZC played in the robbery. However all of the robbers were active participants.

Robbery with a Firearm #4 and Unlawful Confinement: Quick Pik Convenience Store

[26] Later in the day on December 28, 2017, ZC and his fellow robbers attended at the Quick Pik convenience store at 374 Guelph Street, Georgetown. Ashok Bhattia was the store clerk working in the convenience store.

[27] ZC was one of the masked youths who robbed the convenience store with the firearm and who unlawfully confined Mr. Bhattia.

[28] At some point during the robbery, one of the robbers struck Mr. Bhattia, knocked him to the floor, dragged him about the store, and controlled his movements during parts of the robbery. Mr. Bhattia was bound and kicked in the face, chest and back while being dragged around the store.

[29] Both the firearm and a knife were used by the robbers to threaten Mr. Bhattia and ensure his compliance with the robbers’ demands.

[30] The robbers damaged the store’s electronic equipment.

[31] One of the robbers stole Mr. Bhattia’s wallet. It contained a prepaid Visa card containing $400. They demanded that he withdraw money from the store’s ATM. Under threats, Mr. Bhattia withdrew $5,000 and gave it to the thieves.

[32] Before fleeing, the robbers ultimately filled a bag with store products, took the money from the store’s cash box and the money from Mr. Bhattia.

[33] As they fled, one of the robbers told Mr. Bhattia that he should not call the police, or the robbers would kill him.

[34] The items stolen by the robbers, included $2,000 cash belonging to the store, $5,400 from Mr. Bhattia, a gold coloured Samsung Galaxy S7 Edge cell phone belonging to Mr. Bhattia, and various goods including cigars and cigarettes.

[35] Because the youths were masked, I cannot say what exact role the jury found beyond a reasonable doubt that ZC played in the robbery. However all of the robbers were active participants.

Robbery with a Firearm #5 and Forcible Confinement: Mac’s Milk Convenience Store

[36] On December 30, 2017 ZC and three fellow robbers attended at the Mac’s Milk Convenience store 10 Mountainview Rd., Georgetown. They attended with the firearm, intending to use it to rob the store.

[37] There, they robbed the store and its clerk, Habib Ahmed and unlawfully confined Mr. Ahmed.

[38] In this instance, ZC did not mask himself.

[39] During the course of the robbery, ZC had a large machete-sized knife that he used during the robbery to control and intimidate Mr. Ahmed.

[40] On of the robbers, other than ZC, put a gun in Mr. Ahmed’s mouth to intimidate him. Mr. Ahmed’s glasses and phone were damaged during the robbery.

[41] Following the robbery, the robbers attempted to escape in the Mazda. But it broke down, causing them to enter, mask less, into a Subway restaurant. There, the robbers sought the assistance of the store clerk to call them a cab. The police soon arrived and arrested three of the four robbers. ZC escaped by hopping over the counter of the restaurant and running out the back door. He was tracked down and arrested nearby.

[42] The firearm was found, loaded and abandoned in a washroom trash can in that Subway restaurant. Two youths who were ZC’s fellow robbers had been hiding from the police in that washroom.

[43] During the course of the trial, but after Mr. Ahmed testified, ZC admitted to the robbery and forcible confinement of Habib Ahmed.

Victim Impact

[44] From both the direct evidence of the store clerks who testified, and their victim impact statements, I find that each store clerk who was victimized during the five robberies came away traumatized. A number were physically harmed by the experience. As set out above, a number of clerks lost significant amounts of money or valuable personal possessions. Their lives were changed for the worst for significant periods of time. From both their trial evidence and from their victim impact statements, the evidence is:

a. Hardik Patel, clerk at Quick Pik, Miller Drive:

While Mr. Patel was pistol whipped, he reported no lasting physical injuries.

b. Yadvinder Singh, clerk of the Circle K Convenience Store

Mr. Singh was robbed and forcibly confined during his first shift working at the Circle K convenience store. He never returned to that job. He suffered physical pain and swelling in his head from the beating administered during the robbery. He was unable to write his exams soon afterwards and failed two others. He was unable to return to work at all for three months. He never recovered his phone with its thousands of photos, ranging from childhood onward. After the robbery, that phone was used by someone (there is no evidence of whom) to Facetime Mr. Singh’s girlfriend. Now, Mr. Singh is increasingly watchful and fearful in public, particularly of Black males. He came to Canada, feeling that, unlike the USA, it was safe. He no longer feels safe here. He describes his feelings as “not what they should be.” Every Christmas is the anniversary of the robbery. The holiday makes him relive it.

c. Inderjit Singh, clerk of 7 Star Convenience Store

While he was not physically injured during the robbery, Mr. Singh was profoundly shaken by it. He was very scared by the firearm wielded by the robbers. Following the robbery, he expressed a continuing fear for himself, his children, his wife and his employees. He no longer works at night and will not allow his wife and children to do so. He is reluctant to hire a woman to work in the store and will “always call” to check on the safety of his male employee. At the time he signed his victim impact statement, Mr. Singh was thinking of selling the store as soon as he was able to secure another source of income. He used the terms “mentally disturbed” and “scared” to describe his feelings regarding opening his store in the morning.

d. Ashok Bhattia, clerk of Quick Pik Convenience Store, Guelph Street

At the time of the robbery, Ashok Bhattia suffered bruising and redness to his face, as well as soreness to his chest and back. In his 64 years, he had never experienced so threatening an event. When, shortly after the robbery, police officers initially tried to speak with Mr. Bhattia, he was unable to do so. He was suffering from chest pains and had to be removed to a hospital. Mr. Bhattia later returned to India, where he still has difficulty addressing the issues of the robbery. Every time that his daughter, the co-owner of the Guelph Street Quick Pik convenience store, attempts to discuss the robbery with him, Mr. Bhattia becomes extremely emotional. The robbers stole Mr. Bhattia’s wallet and used his bank card to remove a great deal of money from his Indian bank account. Despite a number of attempts, he has been unable to recover the money stolen from his bank account.

e. Habib Ahmed, clerk of Mac’s Milk Convenience Store

The robbery and forcible confinement has left store clerk, Habib Ahmed, both angry and scared. He is angry at what the robbers did to him and his family (who own the Mac’s Milk store that ZC and his accomplices robbed). He is frightened to be home alone or to walk late at night. He will never feel comfortable acting in the role of a cashier again. Even two years after the robbery, Mr. Ahmed was unable to return to work in his family’s business. He reported feeling “scared to be even in the [family owned] store where this incident took place as it brings back the night when this occurred.” He feels that he has been “greatly … impacted” by the crime and that he “will continue to be hurt by this as it isn’t something that can be easily forgotten.” Looking to the future, he continues to fear retribution from the robbers who threatened him during the robbery.

Positions on Sentence of the Crown and Defence

[45] The Crown seeks to have ZC sentenced as an adult and to be imprisoned in an adult institution for eight years, less credit for presentence custody. As set out below, as of the date of his sentencing, September 25, 2020, he has served 999 days of pre-sentence custody.

[46] In calculating ZC’s pre-sentence custody, the Crown argues that he should only receive credit of 1.2 to 1 (rather than the usual 1.5 to 1). The Crown relies on the decision of the Ontario Court of Appeal in R. v. A.O., 2007 ONCA 144, [2007] O.J. No. 800 (Ont. C.A.). That decision upheld a trial judge’s reduction, on the facts regarding the conditions of pre-sentence incarceration before the court, of the usual 1.5 to 1 ratio. If ZC is to be sentenced as a youth, the Crown wants him removed from a youth facility when he turns 20.

[47] To justify an adult sentence, the Crown argues that it has rebutted the presumption of diminished moral blameworthiness and culpability found in s.72(1)(a) of the Youth Criminal Justice Act (“YCJA”) and that a youth sentence would not be of sufficient length to hold ZC accountable for his offending behaviour.

[48] The Crown also says that only an adult sentence can hold ZC accountable for his offences. The Crown acknowledges that s.38 of the YCJA generally calls for a sentencing approach of restraint, rehabilitation and focus on the diminished moral culpability of youth because of their age and level of maturity. But the Crown argues that I must also look to the objectives of denunciation and specific deterrence under s.38(2)(f). In doing so, I must recognize the harm done to the victims and the community by ZC’s offences. To this end, the Crown submits that an adult sentence is required.

[49] The defence argues for a youth sentence of three to four years, with credit for the time already served. However, the maximum sentence that I can award is three years (YCJA s.42(1)(n)). The defence relies on the following factors in support of a youth sentence:

• the very difficult circumstances of ZC’s upbringing,

• the mental health challenges that he has faced for most of his life,

• the fact that he has spent most of his life in the care of a child protection agency,

• the fact that he had no youth criminal record prior to 2017,

• the gains he has made while in detention over the past 6-8 months, including staying out of trouble and earning his high school diploma,

• the rehabilitative prospects,

• the support enjoyed by ZC from his former foster father, Kevin Dennis, and his remaining brother, T, and the prospect that he could return to live with both of them,

• ZC’s current willingness to engage in therapy,

• collateral immigration consequence that could arise from an adult sentence,

• The findings and recommendations of the s. 34 assessors and ZC’s probation officer.

[50] For the reasons set out below, I find that the Crown has not rebutted the presumption of ZC’s diminished moral blameworthiness and culpability. I also find that in the circumstances of this case, a youth sentence is sufficient to hold ZC accountable for his actions. Based on the following, I find that a maximum youth sentence of three years is fit.

Legal Principles

[51] As Clayton Ruby and his fellow authors of Sentencing, Ninth Ed., (Markham: LexisNexis, 2017), wrote at p. 841:

The sentencing of young persons is distinct from the sentencing of adults in the criminal justice system and is animated by its own guiding principles. The starting point for all sentencing decisions involving youth is the presumption of diminished moral blameworthiness.

[52] The YCJA articulates a set of principles for sentencing youths that are distinct from those that animate adult sentencing under the Criminal Code. At s.3 in general, and s.3(1)(b) in particular, the YCJA sets out those general sentencing principles for young persons as follows:

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;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and

(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; ...

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

[Emphasis added]

[53] The YCJA sets out the purpose of sentencing and the principles to be applied in sentencing a young person as follows:

Purpose

38(1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

Factors to be considered

(3) In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[Emphasis added]

[54] The point of the difference between the proper approach to sentencing adults and young persons was summarized by Abella J. in the opening paragraph of the seminal case regarding the sentencing of young offenders, R. v. D.B., 2008 SCC 225:

1 Young people who commit crimes have historically been treated separately and distinctly from adults. This does not mean that young people are not accountable for the offences they commit. They are decidedly but differently accountable.

(see also: R. v. T.(C.N.), [2016] NSCA 35 at paras. 23-28, which speaks to the different approaches and the fact that general deterrence has no place in youth sentencing)

[55] One other important factor in youth sentencing, set out in the combination of s.38(c) and (f), is that even denunciation and specific deterrence are subject to the larger principles of proportionality and the degree of responsibility of the young person for the offence for which s/he is being sentenced. As the Manitoba Court of Appeal stated in R v Okemow, 2017 MBCA 59:

57 The language of section 38(2)(f) of the YCJA is important. Not only are the sentencing objectives of specific deterrence and denunciation subject to the principle of proportionality, but reliance on those two considerations is not mandatory, it is discretionary (see Davis-Barron at 365-66). A youth justice court judge may take into account the objectives of denunciation and specific deterrence, but he or she is not mandated to do so (see R v TRK, 2016 MBCA 14 at paras 15-16).

[56] Despite the different sentencing principles of the YCJA and the Criminal Code, there are times that a young person can be sentenced as an adult and incarcerated in an adult penal facility. Under s.64(1), the Crown may make the application for an adult sentence if that youth, who was 14 or more years old at the time of the offence is or has been convicted of an offence for which an adult is liable for imprisonment for a term of more than two years.

[57] There is no question that those requirements are met here. There is also no question that the Crown offered ZC the appropriate notice under s.64(3) that it would seek an adult sentence before he pled to the charges he faced.

Principles that Apply in Deciding Whether to Sentence a Young Person as an Adult

[58] The principles which govern the decision as to whether a youth should be sentenced as an adult are set out in YCJA s.72(1), which reads as follows:

Order of adult sentence

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.

Order of youth sentence

(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.

Onus

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General.

Pre-sentence report

(3) In making an order under subsection (1) or (1.1), the youth justice court shall consider the pre-sentence report.

Court to state reasons

(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.

Court must impose adult sentence

73 (1) When the youth justice court makes an order under subsection 72(1) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.

Court must impose youth sentence

(2) When the youth justice court makes an order under subsection 72(1.1) in respect of a young person, the court shall, on a finding of guilt, impose a youth sentence on the young person.

Presumption of Diminished Moral Blameworthiness or Culpability

[59] The recognition of diminished moral blameworthiness of young persons codified in s.3(1)(b) and s.72(1) of the YCJA emerged from the finding of the Supreme Court of Canada in R. v. D.B., above. The court found that young persons are entitled to a to a presumption of diminished blameworthiness or culpability as part of their right to fundamental justice under s.7 of the Charter. As Abella J. explained for the majority at para. 41:

… because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability.

[60] The converse of this statement is that there is no presumption in favour of an adult sentence under the YCJA. The Crown has the onus of proving both that the presumption has been overcome and that a youth sentence is not fit. Proof of just one of those two propositions is not sufficient.

[61] Unless the Crown establishes both, the young person must be sentenced as a youth. As Epstein J.A. wrote for the Ontario Court of Appeal at para. 23 of R. v. M.W., 2017 ONCA 22:

… the Crown must satisfy the court that the presumption of diminished moral blameworthiness to which the young person is constitutionally entitled has been rebutted and that a youth sentence would not be of a sufficient length to hold the young person accountable for his or her offending behaviour ... As can be seen from the wording of the legislation, to be successful in an application to impose an adult sentence, the Crown must satisfy both parts of the test.

[Citations omitted]

[62] Epstein J.A. pointed out at para. 105 of M.W. that each prong of the test has a number of issues in common, particularly:

(a) the seriousness and circumstances of the offence;

(b) the age, maturity, character (including sophistication, intelligence and capacity for moral reasoning), background and previous record of the young person; and

(c) any other factors the court considers relevant.

[63] The maturity of young persons is an evolving, not static process. This understanding was recognized by the Ontario Court of Appeal in M.W. There, Epstein J.A. considered a youth’s evolving maturity during pre-trial custody as a factor in his sentencing.

[64] One “other” factor that courts have considered in youth sentencing is the background and race of the young offender, in the context of systemic and background factors of the youth. In R. v. X., 2014 NSPC 95 Derrick J. as she then was, of the Nova Scotia Provincial Court, wrote:

196 It cannot be that systemic and background factors will have currency only in the case of an appropriate adult African-Canadian offender and not in the determination of whether an African-Canadian youth should be sentenced as an adult. It is relevant to note that section 3(1)(c)(iv) the YCJA provides that "within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should...respect gender, ethnic, cultural and linguistic differences..." [footnote omitted]

[65] Derrick J. went on to write of the over-representation of African Canadians in the prisons and jails of this country. She quoted a 2012-13 statistic from the Office of the Correctional Investigator, which found that Black offenders then accounted for 9.5 per cent of the total federal prison population while representing just 2.9 per cent of the Canadian population. She also heard evidence about the issue, which is absent in this case.

[66] In R. v. Jackson, 2018 ONSC 2527, Nakatsuru J. of this court reviewed numerous authorities before deciding to take judicial notice of anti-Black prejudice, as a social fact to be considered in the sentencing of a Black adult. He explained his decision to do so as follows:

82 I find that for African Canadians, the time has come where I as a sentencing judge must take judicial notice of such matters as the history of colonialism (in Canada and elsewhere), slavery, policies and practices of segregation, intergenerational trauma, and racism both overt and systemic as they relate to African Canadians and how that has translated into socio-economic ills and higher levels of incarceration. While this does not in and of itself justify a different sentence, it is an important first step in providing the necessary context in which to understand the case-specific information in sentencing. I have come to this conclusion not simply because it provides substance to the principle of restraint found in s. 718.2(e), but also because it is in keeping with the development of the doctrine of judicial notice and the legal recognition in the jurisprudence of the discrimination against African Canadians.

… 92 It is my belief that provided it is not forgotten that this social context is an aid that complements but does not supplant the traditional sentencing process which is focused on proportionality, no harm will be suffered and only benefit will be gained. Taking judicial notice of such uncontroverted matters will make effective use of the limited resources of the courts. It will encourage better education of sentencing judges about these important systemic issues and increase their sensitivity to them. As stated by Abella J. in the Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 34:

Justice is the aspirational application of law to life. Judges should be encouraged to experience, learn and understand "life" -- their own and those whose lives reflect different realities.

[Footnotes omitted]

[67] However subsequent cases have spoken of the need for proof of a nexus between systemic racism and the specific offender (R. v. Husbands, 2019 ONSC 6824 at paras. 71-86 and R. v. Brissett and Francis, 2018 ONSC 4957 at paras. 57-71). No evidence to establish such a link was adduced in this case.

[68] Having considered all the factors, the court must be careful not blend the two prongs of the test into one. While many of the considerations for each prong may overlap, that overlap is not complete. Some factors are discrete to just one element of the test. Thus, they must be considered separately (R. v. M.W. at paras. 95, 106-108).

[69] If the court imposes an adult sentence, the sentencing provisions of the Criminal Code apply (YCJA s.74(1)). A finding of guilt in respect of which an adult sentence is imposed becomes a conviction (YCJA s.74(2)).

[70] The Crown’s onus is only to prove that it has overcome the presumption of diminished moral capacity and that a youth sentence would not make the offender sufficiently accountable on a balance of probabilities (A.O. at paras. 32 -38).

[71] In order to overcome the presumption of diminished moral blameworthiness and culpability, the focus must be on maturity and the presumption that all young people start from a position of lesser maturity, moral sophistication and capacity for independent judgment than adults (M.W. at para.97)

[72] In explaining the presumption in M.W., Epstein J.A. quotes from Nicholas Bala and Sanjeev Anand, Youth Criminal Justice Law, 3rd ed. (Toronto: Irwin Law, 2012) at p. 4, as follows:

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.

[73] The Crown seeking to displace the presumption must prove on a balance of probabilities that “…the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to him or her. “(ibid. at para. 98)

[74] When considering the moral culpability of a youth, I must look to the time of the offences, not today. When a significant period of time has elapsed between the time of the offence(s) and that of sentencing, as it has here, that process is complicated by the delay. I must ask myself whether ZC had the moral blameworthiness and culpability of an adult at the time of the offences.

[75] Here, experts, such as Dr. Foti and Dr. Patel, did not assess ZC in December 2017. They can only look back from the time of their assessment, in 2020, to the time of the offences. They are aided though by other evidence. That evidence includes Dr Grimbos’ earlier s.34 report (which is almost contemporaneous with the offences for which ZC is being sentenced), ZC’s records from the CCAS, records of ZC’s detention, the historical information that ZC provided to the experts, and other pre-existing evidence.

Accountability

[76] Accountability as described in s.3(b)(ii) and s.72(1)(b), speaks to the imposition of meaningful consequences on the young person. Epstein J.A. stated at para. 104 of M.W. that:

A central premise of the YCJA is that adolescents' lesser maturity should affect the extent to which they are held accountable for criminal conduct: YCJA, s. 3(1)(b)(ii). This premise connects the presumption's focus on maturity with the determination of accountability.

[77] Accountability also includes a retributive element. There is a close connection between the YCJA’s focus on accountability and the adult sentencing principle of retribution. In both M.W. and A.O., the Ontario Court of Appeal cited this comment from Lamer C.J. in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28 at para. 80:

Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.

[78] Accountability also includes the objectives of denunciation and specific deterrence as expressly set out in section 38(2)(f) of the YCJA, as well as recognition of the harm done to the victim and the community and the need to protect the community. R v. S.N.J.S. (2013), 2013 BCCA 379, 305 C.C.C. (3d) 160 (B.C.C.A.), pp. 27-29

[79] While denunciation and specific deterrence are important factors, they must be balanced with consequences that will aid in his or her rehabilitation and reintegration into society. As the British Columbia Court of Appeal pointed out in R. v. S.N.J.S., 2013 BCCA 379 at para. 29:

29 "Accountability" is not defined in the Act, but must be understood in part to be concerned with the severity of the sentence in relationship to the seriousness of the offence. Holding a young person "accountable" must also be understood to include consideration of whether the sentence meets the goal of ensuring the person is rehabilitated and reintegrated into society.

Pre-Sentencing Custody

[80] Under YCJA s.38(3)(d), the court sentencing a youth must take into account the time spent in pre-sentence detention as a result of the offence. However, the allocation of credit for presentence custody is highly discretionary, so much so that the court is not required to give a youth that it is sentencing any such credit. As Epstein J.A. wrote in M.W. at para. 78:

Whether and to what extent credit is given for pre-sentence custody against a youth sentence is within a youth court judge's discretion, particularly in the context of a Crown application to sentence a youth as an adult

[81] In R. v. T.B., 2006 CanLII 4487 (ON CA), [2006] O.J. No. 584 (Ont. C.A.), at paras. 39-42, the Ontario Court of Appeal set out the standard starting point of credit for pre-trial custody as a ratio of 1 to 1.5 for young persons. That ratio is different from the 1 to 1.2 figure used by the trial judge in R. v. A.O. and approved by the Ontario Court of Appeal. However in A.O., the trial judge made findings as to the conditions in which the youth had been housed, as opposed to adult facilities, and the quality of services available to the youth as opposed to those available to adults in pre-trial custody. The trial judge concluded that the circumstances of that youth’s pre-trial detention were not as difficult as those of an adult and justified a reduction in the usual enhanced credit for pre-trial custody. On the evidence before me, I cannot make any of those findings here.

[82] The T.B. 1 to 1:5 standard ratio for pre-trial custody must be viewed in light of the Ontario Court of Appeal’s later decision in M.W. There, the court found that a youth judge, exercising the court’s sentencing discretion, is not required to give any credit for pre-sentence custody when considering the maximum penalty under YCJA.

[83] Under YCJA s.42(2)(n), the maximum youth sentence in a case of robbery with a firearm, such as this, is three years. The same applies for the other offences for which ZC was convicted, each of which have lesser maximum penalties under the Criminal Code. The three-year maximum penalty under the YCJA is comprised of two years in custody and an additional year in supervision in the community, subject to conditions.

[84] One additional factor that I may consider is the fact that ZC has been incarcerated during a pandemic (R. v. Morgan, 2020 ONCA 279 at paras. 8-10). However as the defence has not raised the issue nor adduced any evidence about it, I give it no effect.

Evidence at the Sentencing Hearing:

[85] During the sentencing hearing, the court heard the viva voce evidence of ZC’s CCAS worker, Jacqueline Wong, his former foster father, Kevin Dennis, Mr. Dennis’ mother, Lana Stewart, and the two s.34 assessors, Dr. Giovanni Foti, a psychologist, and Dr. Mitesh Patel, a psychiatrist.

[86] The court also received:

a) ZC’s PSR, dated January 17, 2020 and an update to that report dated July 9, 2020, from ZC’s probation officer, Andrea Delle Donne (although she did not testify).

b) The s.34 report of Dr. Foti, dated April 15, 2020

c) The s.34 report of Dr. Patel, dated March 25, 2020; and

d) Records from institutions in which ZC was detained, including previous psychological reports.

e) Those records included the earlier s.34 report, dated November 2, 2017, prepared by forensic psychologist, Dr. Teresa Grimbos, of the Centre for Addiction and Mental Health (“CAMH”). Dr. Grimbos’ report was entered into evidence on consent but she did not testify.

ZC’s Background

[87] ZC was born in Grenada to a mentally ill mother and an abusive father. After a hurricane on the island, ZC, his two brothers, and his mother came to Canada. He was three years old. He has not seen his father since.

[88] In 2006, at the age of six, ZC was taken into the care of the CCAS because of his mother’s mental illness. ZC and his brothers had witnessed a suicide attempt by their mother. The CCAS had been involved with the family before ZC’s apprehension. ZC was made a Crown ward of the CCAS at age seven. Because of their high needs, a decision was made not to place the three brothers together. There is no way to know whether that decision had any impact on the tragedy to ZC’s older brother that followed and its impact on ZC.

[89] While in CCAS care, ZC resided in a variety of foster homes in Hamilton and Kitchener. CCAS records showed that he resided in eight different foster homes in all during the approximately nine years that he was in its care prior to his arrest for the subject crimes. That figure includes the group home from which he ran in December 2017, before embarking on the crimes that bring him before this court.

[90] On October 11, 2017, ZC was interviewed by Dr. Teresa Grimbos, for her s.34 assessment in regard to previous robbery charges. ZC could not recall to her all of the foster homes in which he had lived. He did not do well in most of those placements, which he described as “poor”. He was involved in conflict with staff and ran away numerous times. He claimed not to like the manner in which he was treated and was frequently disobedient.

[91] In 2014, ZC‘s older brother committed suicide while in CCAS care. That suicide appears to have greatly affected ZC. CCAS staff decided that ZC should be placed together with his remaining brother, T, in the same foster home. That was the home of Kevin Dennis. Like ZC and T, Mr. Dennis is Black. ZC came to the Dennis home at about age twelve. ZC appears to have settled down for a time after he and T were placed together in the foster home of Kevin Dennis.

[92] Mr. Dennis reported to probation staff that ZC had trouble trusting others, particularly authority figures. He did not feel that they had his interests at heart. That may have been a factor in his previous, failed placements. Mr. Dennis added that ZC had adjusted well and exhibited no behavioural concerns until in or about April 2017. Mr. Dennis was likely speaking about criminal charges rather than general behavioural concerns.

[93] Mr. Dennis testified at the sentencing hearing that ZC started to get in trouble starting in or about February 2017 after he fell under the negative influence of another foster child. Beginning in or about February 2017, the youths engaged in a number of robberies, for which ZC was convicted. His youth criminal record is set out below. He was in and out of custody from April 2017 until his arrest on December 31, 2017.

[94] Mr. Dennis ascribed ZC’s criminal behaviour to the influence of the foster sibling. The Crown asserts that Mr. Dennis assumed an overly optimistic take on ZC’s behaviour. In cross-examination, Mr. Dennis admitted that ZC may have engaged in the criminality without the influence of that foster sibling. That other youth was removed from Mr. Dennis’ home, yet ZC continued to commit crimes. That youth was not involved in any of the offences before this court for which ZC was found guilty.

[95] Ultimately, when ZC was released from detention on December 15, 2017, he was not allowed to return to Mr. Dennis’ home. Cornerstone, the foster home corporation with whom Mr. Dennis contracted to offer foster home services, had closed ZC’s bed. Mr. Dennis objected to that decision. He ultimately withdrew his home from Cornerstone. He began working directly with the CCAS. But that occurred too late to allow ZC to return to what appears to be the closest facsimile to a real home that he had enjoyed, since at least his infancy. Instead, ZC was placed in a group home, from which he ran the next day. It was while he was on the run and living rough that he committed the crimes for which I am called upon to sentence him.

[96] Mr. Dennis maintains a relationship with ZC even though he is no longer ZC’s foster father. He has attended many days of this trial and was present throughout the video sentencing process. He wishes to have ZC return to live with him when ZC is released from custody. He will offer ZC construction work in his building firm.

[97] ZC has had a difficult relationship with his mother and none with his father. His CCAS worker, Jacqueline Wong, testified that ZC has had no contact with his mother since he came into custody. Originally, she did not wish to contact him. But now, ZC wishes no contact with her while he is incarcerated.

[98] The mother was described by Ms. Wong as disengaged with her children. She cut off contact with her two youngest children when her oldest child committed suicide. Some contact resumed for a time, until March 2017, when ZC was first arrested. ZC’s mother refused to see him after that time. ZC told his probation officer that he would reach out to his mother when he is released from custody.

[99] ZC maintains telephone contact with his younger brother, T. For some time, it was sporadic. But now, according to Dr. Foti, who spoke to Mr. Dennis, it is weekly. Mr. Dennis described ZC to Dr. Foti as a positive support to T.

[100] Despite his present incarceration, ZC legally remains in CCAS long-term care. The CCAS is willing to offer him an allowance that will pay his rent and basic expenses when he is released from custody.

[101] ZC has stated that he is not affiliated with any gang. However while in detention, he indicated some identification with youths from the Driftwood area and wished to avoid their rivals. The Crown concedes that it has not demonstrated that ZC belongs to a gang. I cannot say that his identification with youths from the Driftwood area is anything but a form of self-protection or friendship with certain youths. Further, I cannot find, based on the thin straw of evidence on the issue before me that ZC is either a gang member or that he is affiliated with a gang.

[102] While in custody, ZC has had a mixed disciplinary record. He has gotten into fights and been disruptive. He was convicted of assault for an event that occurred in January 2019 and sentenced to seven days custody. He is currently charged with harassment and extortion, from events that occurred on October 28, 2019. The Crown alleges that ZC attempted to induce a guard to bring marijuana into the youth detention facility. ZC’s trial on that charge has not commenced.

[103] In light of the fact that ZC’s trial on those charges remains pending, I am not willing to make a finding in regard to the allegation and the charge, based only on the untested records from the youth detention facility. While those records were admitted into evidence on consent, there was no concession as to their accuracy upon their admission. No further evidence was offered as to the accuracy of those records. No actual evidence of the alleged acts was offered at the sentencing hearing.

[104] ZC’s recent decision to request a move away from Roy McMurtry Youth Centre (“RMYC”) and his very positive behavioural record since he moved from RMYC do not support the gang affiliation claim. They seem to demonstrate an attempt to extricate himself from his past acquaintance with gang members. Further, there is reason to believe that ZC may have turned a corner, starting in December 2019 both in terms of his conduct and his achievements. That is the impression left by the updated report of ZC’s probation officer, which is described below.

Youth Criminal Record

[105] The Crown presented the following details of ZC’s youth record:

Offence Date	Sentence Date	Charge	Sentence
Mar 2017	21 July 2017	Robbery x 3	90 days jail 15 mos. Probation s.51 weapons prohibition DNA Order
Mar 2017	21 July 2017	Robbery	90 days jail concurrent 15 mos. Probation s.51 weapons prohibition DNA Order
22 Feb 2017	14 Dec 2017	Robbery x2	90 days Jail 18 mos. Probation
29/30 Jul 2017	15 Dec 2017	Possn under Breach U/T	18 mos. Probation
7 Nov 2017	5 Dec 2017	FTC Prob	1 day jail
10 Nov 2017	11 Sept 2018	Robbery	30 days t/s 1 day jail s.51 weapons prohibition
24 Jan 2019	30 May 2019	Assault P.O.	7 days t/s credited as 10

[106] ZC’s pre-sentence report (“PSR”), described below, sets out the dates of his actual detention prior to his arrest on December 31, 2020, which are:

• April 19 – June 16, 2017

• July 31 – October 27, 2017

• November 27- December 18, 2018

Pre-sentence Report

[107] Ms. Delle Donne stated in her PSR that ZC knows that he has to change, or he will just end up in another correctional facility. He told her that he “has no choice”. He said that he is willing to change. He added that his current detention is his longest yet.

[108] ZC also told Ms. Delle Donne that he is sad about what he had done to the victims of the robbery. He stated that if he could, he would change it. He expressed to her regret for the victims but admitted that he cannot imagine how it felt like for them. That statement is in sharp contrast to what Jessica Osgoode, a Halton Regional Police Services officer, described to Ms. Delle Donne as ZC’s overconfidence and lack of remorse at the time of his arrest on December 31, 2017. The officer told the probation officer that arresting officers felt that ZC “displayed no emotional response and appeared to be unphased at being arrested at gunpoint.”

[109] ZC’s presentation to Ms. Delle Donne is echoed in the comments he made to the two recent s.34 assessors after having heard the evidence of a number of his robbery victims.

[110] Ms. Delle Donne described ZC as respectful and polite in their interview for the purpose of the PSR. She stated that he has tried to work to change himself. She continued that only he knows whether “…he will have the fortitude to push through and meet his goals and accept services so to assist him in meeting them in the community.”

[111] ZC told Ms. Delle Donne that he saw no value in counselling, that he would rather move forward in a positive manner than focus on childhood trauma. He also stated that upon release he would like to take his time to adjust to freedom without many commitments, including school or work.

[112] Ms. Delle Donne disagreed with that approach. She felt that it would be beneficial to ZC to attend school, part-time work and counselling. Mr. Dennis’ expectation, if ZC were to come to live with him, would be that he attend school and/or work, and obey his house rules. Ms. Delle Donne stated that ZC’s “…time needs to be productive so his risk of associating with old friends and making poor choices is decreased.” She states that appropriate terms of a release into the community would include that he attend counselling as directed by the probation officer, reside where approved by probation services and attend school or obtain regular employment.

PSR Update

[113] Ms. Delle Donne prepared a very positive update to ZC’s PSR on July 9, 2020. It confirmed an improvement in ZC’s behaviour and position within his institution. He voluntarily transferred detention centres in order to get a fresh start. The update states:

On April 24, 2020 [ZC] was transferred to Justice Robert Lester Youth Centre Thunder Bay. This was at the request of [ZC] and supported by the administrators at Roy McMurtry Youth Centre and Probation not due to behavioural issues. [ZC] stated that he felt he needed a change. Youth Service Manager Steve Clarke at Roy McMurtry Youth Centre reported that [ZC] was doing very well and [ZC] would be missed but respected his decision and [ZC]’s ability and maturity to identify what he needed in order to stay out of trouble.

At Justice Robert Lester Youth Centre [ZC] completed what was left of his high school work and earned his diploma in May 2020. [ZC] is on level four of their four level behavioural system. He has participated in programming, been respectful to staff and has complied with program expectations while in Thunder Bay. He was involved in one behavioural incident, for which he was not the aggressor.

[114] It is worth noting that, according to information gathered by Ms. Della Donne from ZC’s school records and cited in the PSR, he had attended eighteen different schools in his journey through the child protection and youth criminal justice systems. That means that with his move to the Justice Robert Lester Youth Centre, ZC graduated from his nineteenth school.

Evidence of Jacqueline Wong

[115] Ms. Wong is the CCAS worker for both ZC and T. She spoke about ZC’s troubled history, which is recounted above, and which brought him in Society care. She stated that when Cornerstone decided to close ZC’s bed and not allow him to return to Mr. Dennis’s home, the CCAS tried to advocate against that decision, which had the effect of separating the two brothers. But their advocacy was to no avail. The CCAS could not find another foster home placement, even though they felt that such a placement would be best for ZC. The CCAS had had no choice but to place ZC a group home after his release from custody on December 14, 2017.

[116] ZC ran from the group home the next day. He remained on the run until his arrest.

[117] The CCAS offers a voluntary service for 18 – 21-year-old youth who have been in its care. The Society’s involvement with the youth is not as involved as it is with younger persons. But it does offer the youth extra supports with outside agencies as well as financial supports. ZC would have access to $998/mo. for living expenses. Ms. Wong spoke of her support for the plan for ZC to live with Mr. Dennis.

[118] Ms. Wong stated in chief that ZC previously was not taking responsibility for his actions. She feels that he is now beginning to understand that what he did was wrong. She feels that he is paying attention to school (where he has attained his grade 12 diploma). He has engaged in anger management and financial literacy programmes, and whatever programmes he has been offered while in custody. She was meeting with him at RMYC every few months, where he had been doing well and had attained the gold level, offering him additional privileges. Historically, his prior involvement with programming while in custody was inconsistent.

[119] Ms. Wong stated that ZC’s overall attitude has changed while in custody. He wants to do better, to stay put of trouble. She feels that he has engaged in a lot of self-reflection while in custody. Nonetheless, she candidly admitted that he has expressed similar sentiments in the past. She also stated that his behaviour has in the past been up and down. He has understood right from wrong.

[120] In answer to questions that I asked her, Ms. Wong stated that she felt that in December 2017, he was in crisis. It was hard to engage him. Since then, he has matured. In 2017 he was, in her opinion, very immature, impulsive and reckless.

Evidence of Kevin Dennis

[121] Mr. Dennis is ZC’s former foster father and the foster father for T. He attended court many times during the trial and during the sentencing hearing. He testified for the defence. He stated that he has kept in touch with ZC while in custody. He supports ZC’s plan to return to live independently with him. Mr. Dennis has a construction company at which ZC can work if he does not go to school. If ZC lives with him, he will have to follow the house rules, and attend school or work. He believes that ZC is still basically good but that he made unfortunate mistakes and bad decisions. Mr. Dennis feels that this is part of growing up. He testified that he is so involved with ZC because he wants to see the youth succeed. Mr. Dennis had been in trouble himself, in the past.

[122] In cross-examination, Mr. Dennis stated that he is the only father figure that ZC has known in his teen years. Mr. Dennis tries to treat ZC as much as he can as his own child. He admitted that he was not fully aware of all of the details of ZC’s discipline record while in custody. He also admitted that ZC may have gotten in trouble without the negative influence of his foster sibling.

[123] Mr. Dennis may have a somewhat naïve view of ZC’s history, but he is very well meaning and the closest thing to an effective parent that ZC has. I find that ZC’s relationship with Mr. Dennis is an important and very positive factor in the youth’s rehabilitation.

[124] Mr. Dennis’ mother also testified. She Cooks and comes by her son’s home. She is well meaning but has had little contact with ZC in recent years. However she would be part of an extended family that would offer support for ZC when he is released from custody.

Section 34 Assessments

[125] The November 2, 2017 report by Dr. Grimbos is roughly contemporaneous with the offences for which I am sentencing ZC. Its release predates them by less than two months. Both Dr. Foti and Dr. Patel echo Dr. Grimbos in speaking of the complex, multiple traumas that ZC has experienced in his life and the profound effect that they have had upon him, including upon his impulsivity and behavioural dysregulation. Each of the three professionals speak of ZC’s history of ADHD. Dr. Patel sees a tie between the ADHD and ZC’s impulsivity. The experts’ comments about ZC’s impulsivity reflect those of both Ms. Wong and Mr. Dennis, concerning not only ZC’s impulsivity but his difficulty discerning consequences at the time of the offences.

[126] That being said, Dr. Foti and Dr. Patel disagree on ZC’s present diagnosis. Dr. Foti wrote of the complex trauma that ZC experienced and the need to understand him in light of that trauma. But he rejected a diagnosis of Post Traumatic Stress Disorder (“PTSD”). Instead, he offered a diagnosis of conduct disorder, in remission. On the other hand, Dr. Patel felt that ZC did experience PTSD. He felt that ZC’s behaviour can best be understood within the context of the young man’s complex trauma and PTSD rather than conduct disorder.

[127] Despite these diagnostic differences, I do not find the two assessors’ differences to be of great moment for the purposes of sentencing ZC. They both follow the approach of Dr. Grimbos. They agree on the centrality of ZC’s traumatic history and its profound effect on his mental health. They agree about the impulsivity and behavioural dysregulation that arises from ZC’s mental health issues as well as his need for therapy to deal with his profound history of complex trauma. The evidence of both experts points to a growth in ZC’s maturity, impulse control and understanding of the effects of his conduct since the time of his incarceration. That evidence accords with that of Ms. Wong. Each of Dr. Foti and Dr. Patel, joined Ms. Delle Donne in stating that ZC had expressed remorse for his crimes.

[128] Set out below are some details from each s. 34 expert’s assessment and evidence.

Dr. Giovanni Foti

[129] Dr. Foti is a registered psychologist who specializes in dealing with adolescents, including those involved with the justice system. Dr. Foti reviewed the reports of a number of previous assessments of ZC, including that of Dr. Grimbos.

[130] In his interviews with Dr. Foti, ZC expressed both remorse for his criminal behaviour as well as regret for each of his victims and the consequences to him that followed his offences. ZC stated to Dr. Foti that he could only imagine how painful it would be if it happened to himself or someone he loved. He expressed the understanding that his victims may be thinking about the robbery, worrying more, or doing things differently.

[131] Dr. Foti was unsure whether these expressions of remorse were genuine, whether ZC was pushing his emotions away, or he was simply more concerned about the negative outcomes of that conduct on himself. Nonetheless, Dr. Foti states that ZC seems to have engaged in a great deal of positive self-reflection about the path that led to and includes his lengthy detention. ZC also told Dr. Foti that he feels that he has gained tools while in custody to help him avoid further criminality.

[132] Dr. Foti’s report refers to positive and negative aspects of ZC’s time in custody. On the one hand, there is a history of disciplinary problems related to aggression towards peers in the first two years of his time in custody. On the other hand, that seems to have changed since about December 2019. Since then, staff have spoken of his role as a positive presence, staying out of trouble and even mentoring peers.

[133] Danielle Titton, a youth services officer at RMYC, told Dr. Foti that she has seen “a lot of growth in [ZC’s] behaviour but he is still far from perfect.” She stated that she had observed what Dr. Foti described as “a major positive change in his impulse control and decision making after being moved from Donald Doucet Youth Centre to RMYC in May 2019”. As set out above, ZC has since moved one further time, from RMYC to Justice Robert Lester Youth Centre, at his own request.

[134] Jodi Benkovic, a psychometrist at RMYC, told Dr. Foti that ZC initially refused to participate in any clinical services. But that changed to some degree. ZC was willing to occasionally meet with Ms. Benkovic for some supportive counselling. He has also participated in group therapeutic programs addressing anger management and impulsive decision making. But he has refused to commit to any individual psychotherapy. I add that it is not known whether he has engaged in any clinical services at his present placement.

[135] Dr. Foti described ZC’s level of risk of violent re-offence as “moderate”. The Crown put to Dr. Foti that his view of ZC’s risk may change if ZC had misled led him, say about his drug use, or if he did not have accurate information. The Crown says that ZC was not candid about his drug use during the time of the offences or afterward. It points out that he has offered different statements about whether he was using marijuana during the commission of the offences and underplayed to Dr. Foti his drug use while in custody. However, that assertion did not change Dr. Foti’s view of ZC’s risk.

[136] In diagnosing ZC, Dr. Foti spoke of the adverse affect of his “chaotic and traumatic childhood” on his development, emotions, behaviour and social functioning skills. He agreed with Dr. Grimbos and Dr. Patel that ZC’s “presentation is best understood from a framework of complex trauma”. However, as stated above, Dr. Foti felt that ZC does not presently meet the DSM 5 diagnostic criteria for PTSD because he failed to offer an acute presentation. Instead, Dr. Foti accepts the historical diagnoses of Attention Deficit Hyperactivity Disorder (“ADHD”) and Specific Learning Disorder in Reading, Written Output and Mathematics. He also states that the ZC meets the criteria for Adjustment Disorder with mixed disturbance of emotions and conduct related to the stress of finalizing his sentencing. He also meets criteria for Conduct Disorder Adolescent - Onset type. That being said, Dr. Foti found that this disorder is presently in the mild range or in partial remission at this point in time.

[137] Areas of weakness for ZC that Dr. Foti described are impulsivity, attention/concentration, and organization/planning. Dr Foti testified that he believed that there had been a change in the level of ZC’s impulsivity since 2017, the time of Dr. Grimbos’ assessment. In his re-examination, he stated that the significant problems with emotional regulation that Dr. Grimbos noted may have made ZC more disinhibited and reckless around his decisions to get involved with certain peers and activities. Those decisions may have been more impulsive rather than responsive to long-term consequences

[138] Dr. Foti found that “[o]verall, [ZC] presents as moderate risk for specifically violent offending. Protective factors include his strong social supports and attachments with Mr. Dennis and his family, a strong commitment to school, and positive attitude toward intervention and authority.”

[139] Dr. Foti found that the recent changes in the trajectory of ZC’s behaviour offer some hope of potential change. He felt that there was no guarantee that ZC would continue on his positive path but that if his recommendations, including therapy and steps to reduce the risk of recidivism were followed, that would reduce the risk of future criminality.

[140] With regard to sentencing, Dr. Foti was very frankly of the view that an adult sentence would increase the risk of recidivism. He bluntly wrote that “…the more time that [ZC] spends in custody with antisocial peers, especially antisocial adults, the more at risk for recidivism he is likely to become. If he is sentenced to more custody time, there should be a strong focus on rehabilitation and reintegration to the community as soon as can be done safely.”

[141] Dr Foti saw that ZC’s motivation to graduate from high school to be a positive development. He could not say for sure whether ZC’s expressions of remorse and understanding regarding his victims was sincere or impression management. While the Crown asserts the latter, Dr. Foti felt that they potentially point to a difference from his past motivations while committing the robberies, when he was focussed on the money and not the effect on the victims. In cross-examination, Dr. Foti stated that he had the impression that ZC had a genuine concern about heading down the path of long-term criminality and trying to avoid that path.

[142] Dr. Foti was cross examined about ZC’s various diagnoses and their effect on his behavior. For example, his ADHD may lead to impulsive behaviour. But some aspects of the robberies, such a propping a door open for an escape or wearing a mask to avoid detection may show planning as opposed to impulsivity. But impulsivity may include getting oneself into situations where it is hard to step out. Impulsivity is found in most 16-year-olds and can even be found in adults.

[143] Dr. Foti testified that, typically a 16 ½ year old knows right from wrong. While ZC knew right from wrong when he committed the crimes, his ability to understand the consequences of his acts has increased with time. The gains are in the appreciation of the harm his conduct has caused to people and the consequences for his actions. He made choices to change his behaviour when he was 18 years old. There was nothing cognitive that prevented him from doing so before then. But his ability to understand and appreciate the consequences of his behaviour may have matured after the crimes were committed. That is not simply a matter of cognitive ability.

[144] Dr. Foti stated that it is a concern that ZC had to be moved so often within the youth detention centre because of aggressive behaviour. While the lack of a stable family is a risk factor for ZC, the fact that he has support from Mr. Dennis, his family and his CCAS worker, Ms. Wong, ameliorates the risk somewhat. But the risk with regard to peers still exists. It would be greater if he were a member of a gang. Crown counsel put to Dr. Foti the fact that ZC said on admission to custody that he wishes to stay away from one group of youth and that he identifies with members of a certain gang. If he were a member of a gang this would be an increased risk factor. As set out above and below, I do not find that he is a gang member or affiliated with a gang.

[145] Dr Foti has seen an improvement in ZC’s level of aggressiveness in recent months, including his peer mentoring and his positive influence on his younger brother, T (with whom his contact has increased). He still needs to improve in showing appropriate assertiveness, as opposed to aggressiveness, in getting what he wants.

Dr. Mitesh Patel s.34 Psychiatric Report, March 25, 2020

[146] Dr. Mitesh Patel is an assistant professor in forensic & child and adolescent psychiatry at the Faculty of Medicine, University of Toronto, and a forensic staff psychiatrist in the Law and Mental Health Forensic Unit of the Centre for Addiction and Mental Health. He offers psychiatric and consultation services to a number of youth organizations, including the Children's Aid Society of Toronto.

[147] Dr. Patel offered the following comments in his report:

a) At various points in time, ZC appeared to engage in positive impression management. However, he did not appear to actively feign or malinger symptoms.

b) Dr. Patel placed great weight on Dr. Grimbos’ report and its references to ZC’s historical problems with anxiety and the severe trauma he had experienced. ZC’s “dysregulated presentation [was] due to repeated trauma exposure from a young age.” He also had various attachment related concerns as a consequence of a number of changing care providers.

c) In describing his interactions with others at RMYC, ZC told Dr. Patel that “I’m trying to improve on this; I can’t keep solving my problems with violence”.”

d) As Dr Patel narrates, ZC offered the following, somewhat inconsistent explanation for the subject crimes:

He stated, “basically I was living on the streets and I didn’t really have a place to go and I wasn’t thinking straight and the only way I was going to get money was to rob stores and stuff”. He noted, “so I decided to rob some stores and I think I was involved in three, but I was there for one or two and for another one or two, I was just driving”. He noted that there were three other co-accused individuals. He stated that they had robbed various convenience stores. He informed that while driving the vehicle, he did not maintain an active driver’s license. [ZC] then informed that he was involved in “four robberies and I was driving for one”.

e) ZC’s description of his role in the robberies and in particular, their violent aspects, was “evasive”. He repeated that he did not wish to hurt anyone in the robberies. But based on the findings set out above, ZC understated his role in the robberies and their violence. This was part of what Dr. Patel referred to as “impression management” by ZC.

f) Based on what he was told by ZC, Dr. Patel understand that ZC was consuming significant quantities of marijuana during the time of the robberies. (which contradicts what ZC told Dr. Foti).

[148] Dr. Patel came to the following diagnoses regarding ZC:

a) History of complex trauma related symptoms, including flashbacks and nightmares.

b) PTSD. However, ZC continues to reduce his medications, which would likely have assisted in treating symptoms related to his trauma symptoms.

c) Possible “underlying bereavement or complex grief reaction” for his untreated reaction to the suicide of his bother.

d) History of ADHD “… which may worsen his underlying impulsivity and anger management.”

e) History of cannabis abuse disorder, in remission, in a controlled setting.

[149] In looking to whether an adult sentence should be applied to ZC, Dr. Patel commented on:

a) ZC’s “longstanding history of criminogenic behaviours and … fights from a young age. He has repeatedly committed offenses resulting in repeated incarceration following relatively short periods of time in the community.”

b) ZC’s history of significant trauma, for which he engaged in some limited therapy.

c) His need for further therapy and counseling to address symptoms related to grief and loss as well as to manage his PTSD symptoms.

d) ZC’s “disjointed account” for his conduct and his significant attempts to engage in positive impression management in this regard.

e) ZC’s reference to the significant amount of time he had spent in custody and the various programming he had undertaken to assist with his anger management and to gain further insight into the consequences of his behaviours.

f) ZC’s articulation of significant remorse and regret for his behaviors.

[150] Dr. Patel recommends treatment and abstinence as follows:

a) ZC should continue to undertake further mental health assessments and receive treatment for his ADHD and PTSD by a child and adolescent psychiatrist, if possible.

b) He should also receive further substance abuse therapy and counselling.

c) He should be advised to remain abstinent from illicit substances in perpetuity.

d) Further weapons prohibitions should also be considered.

[151] Dr. Patel offered the following evidence that is relevant to ZC’s level of moral culpability at the time of the subject offences:

a) ZC’s ADHD affects his ability to understand consequences. His ADHD involves impulsivity and the ability to weigh consequences. Youth with ADHD are more impulsive, particularly those with complex PTHD and ADHD. These may affect moral culpability but Dr. Patel did not test in that regard.

b) There was an element of positive image management in ZC’s statement that he realizes that he cannot solve all of his problems by fighting. There has likely been an improvement but there is image management as well. The positive image management applies to his descriptions of the index offences but not to everything that ZC said to Dr. Patel.

c) Despite ZC’s impression management, Dr Patel had a general sense of accuracy and sincerity in his expressions of remorse. ZC spoke of the time that he spent in custody and the anger management classes he had taken. These may have influenced his expressions of remorse.

d) ZC should have treatment from an adolescent psychiatrist to manage his various disorders. With appropriate supports, ZC may be able to achieve more than his graduation from high school.

e) ZC’s description of how he was living before his most recent arrest is not an indication of organization and planning. He was able to meet his basic needs of food and shelter by couch surfing and living in a car. But that mode of living may simply be an indication of disorganization.

f) The diagnosis of complex PTSD arising out of complex trauma better encapsulates ZC’s history of externalizing behaviours than a conduct disorder. Historically, ZC has been described as disorganized in his cognition, which is reflected in his aggression. It is also in keeping with the milieu of patients, like ZC, going through foster homes, like ZC.

g) While Dr. Grimbos’ report includes a quote from ZC’s worker, Jacqueline Wong, about ZC exhibiting a “gang mentality”, Dr. Patel saw it as just one comment, which is “a factor”, but only that.

Dr. Teresa Grimbos s.34 Assessment November 2, 2017

[152] Dr. Teresa Grimbos, a clinical and forensic psychologist at CAMH, prepared a s.34 report dated November 2, 2017. That report was prepared for a sentencing hearing before Tuck-Jackson J. of the Ontario Court of Justice.

[153] Dr. Grimbos’ report is based on a series of interviews and psychological tests administered in October 2017. As stated above, of all assessments presented at the sentencing hearing, the report of Dr. Grimbos is the one most contemporaneous with the timing of the offences before the court. It is the one that best describes ZC’s level of intellectual and emotional functioning at the time he committed the relevant offences.

[154] Among the most salient points found in Dr. Grimbos’ report are the following:

a) ZC’s CCAS worker, Ms. Wong, expressed concern regarding his impulsivity and need for acceptance by peers.

b) Mr. Dennis expressed the concern that if ZC gets into further trouble, he may be transferred into a group home. That would not be good for him. However, Mr. Dennis did not feel that ZC realizes this consequence. That concern was echoed by Ms. Wong.

c) Conclusions from ZC’s previous assessments “… often centred around trauma experiences, with many clinicians emphasizing the connection between [ZC]’s dysregulated presentation and various traumatic experiences he has endured throughout his life.” Dr. Grimbos noted that ZC and his brothers had been “mostly separated” through the years.

d) “[ZC]’s current clinical presentation, based on his reports and that of collateral[s], indicated significant affective and behavioural dysregulation, namely impulsivity, aggression and anger problems, reckless behaviors, attention difficulties, significant interpersonal challenges and an unstable sense of self. Many of these difficulties are reflected in [ZC]’s recent criminal involvement as well… Given the repeated exposure to different trauma experiences over the years and, in light of [ZC]’s longstanding regulation challenges, the pattern of these symptoms and behaviors can be parsimoniously construed under a complex trauma framework. This framework provides a trauma-based understanding of [ZC]’s self-regulation struggles, particularly important for therapeutic approach and conceptualization, but also for other service providers and caregivers working with [ZC].” [Emphasis in original]

e) “It is also important to understand [ZC] as a young man who has significant attachment concerns.” [Emphasis in original]

f) “[ZC] was described as a follower who seeks acceptance from his peers and it appears he is caught up with certain individuals and lifestyle while searching for his identity, acceptance and a sense of belonging.”

g) “[ZC]’s CCAS worker and foster father …both questioned ZC’s ability to consider consequences and resist impulses when back in the community.”

h) “[S]chool has been a longstanding struggle for him and, in Grade 10, [ZC] disengaged considerably from school. A recent psychoeducational assessment confirmed a Learning Disability diagnosis, as well as ADHD concerns. Though this assessment did not consider [ZC] to meet criteria for ADHD, inattention and impulsivity are nevertheless concerns that will need to be addressed in and out of the school context

i) “[ZC] expressed regret and plans to disengage from crime; however, there are concerns about him not taking full responsibility for his actions. [ZC]’s CCAS worker and foster father expressed this concern and both questioned [ZC]’s ability to consider consequences and resist impulses when back in the community.”

j) “Additionally, if [ZC] gets into legal trouble again, there is the consequence that he will be placed into a group home. Leaving his foster father’s care will undoubtedly be detrimental to [ZC] as it would add yet another caregiver disruption and reinforce attachment issues and negative beliefs. While I would primarily advise that this not be a consequence for [ZC], I would also like to stress the importance that Mr. Dennis continue a positive relationship with [ZC] should [ZC] find himself in this unfortunate situation.

Analysis

Should ZC be sentenced as a Youth or an Adult?

[155] The court must ask itself two questions in determining whether ZC should be sentenced as a youth or an adult:

a) Has the Crown overcome the presumption of diminished moral blameworthiness and culpability found in s. 72(1)(a) of the YCJA?

and

b) Would a youth sentence be of sufficient length to hold ZC accountable for his offending behaviour?

These two factors must be considered separately, lest the test for one be conflated with the other.

The Crown has not overcome the presumption of diminished moral blameworthiness and culpability

[156] The Crown argues that it has rebutted the presumption of diminished moral blameworthiness and culpability. It states that, at 16 ½ years of age at the time of the offences, ZC demonstrated the moral capacity of an 18-year-old, the point of s.72(1)(a)’s comparison. It points to the fact that the robberies were part of a pattern of robberies in which ZC engaged in during 2017 (in addition to the index offences), evidence of some pre-planning and deliberation of the robberies, the harm done to the store clerks, including gratuitous violence, and other aggravating factors, which I cite below.

[157] In R v. M. W., cited above, at para. 99-105, the Ontario Court of Appeal held that the Crown must show on this branch of the test that accused had demonstrated a level of maturity, moral sophistication and capacity for independent judgment of an adult at the time of the offences, such that an adult sentence and adult sentencing principles should apply to the offender.

[158] Here the Crown’s argument is essentially that the offences speak for themselves as to a level of deliberation and planning that demonstrates an adult’s level of sophistication and maturity. It also points to ZC’s prior record of robberies earlier in 2017. It describes him as a leader of the index robberies. It points to the fact that the doors of the convenience stores were propped open prior to the robberies and the evidence that the robbers scouted out the Circle K convenience store before robbing it. It also points to the theft of the two cars used for the robberies as evidence of planning.

[159] The Crown points out that the level of maturity to which ZC must be compared is only that of an 18-year-old. That is the case even though, as Dr. Foti pointed out, the brain of an 18-year-old has not finished developing.

[160] Considering those arguments, I find that the evidence, taken as a whole, does not support the Crown’s position. Dr. Grimbos’ report, written just about two months before the offences speaks to the finding that the Crown seeks. Dr. Grimbos referred directly to ZC’s impulsivity, reckless behaviours, attention difficulties, significant interpersonal challenges and an unstable sense of self. She spoke of his strong need for peer approval and that fact that he had previously followed others (notably his foster sibling and other friend) in crime. Dr. Grimbos cited ZC’s CCAS worker who also spoke of the youth’s impulsivity and need for peer approval. Mr. Dennis, the foster father, told Dr. Grimbos that he did not believe that ZC understood the consequences of criminal conduct in losing his placement in the Dennis home.

[161] Dr Grimbos spoke of ZC‘s “self-regulation struggles” as a factor in applying the complex-trauma framework to understand his mental health challenges. She wrote of the great risk of future criminal behaviour leading to the detrimental outcome of removal from the Dennis home. Yet ZC was unable to restrain the impulses that led him to ultimately lose that placement. His inability to control his behaviour lost him what was essentially the only home he knew since he was six years old.

[162] Dr. Grimbos was not cross-examined in this proceeding. But both Dr. Foti and Dr. Patel, who were cross-examined, adopt much of her analysis regarding ZC’s mental health concerns. As set out above, Dr. Foti spoke of ZC’s lower level of ability to control his impulsivity at the time of the offences as opposed to today.

[163] During his testimony in chief. Dr Foti stated that he believed that there had been a change in the level of ZC’s impulsivity since 2017, the time of Dr. Grimbos’ assessment. In his re-examination, he stated that the significant problems with emotional regulation that Dr. Grimbos noted may have made ZC more disinhibited and reckless around his decisions to get involved with certain peers and activities. Those decisions may have been more impulsive than responsive to long-term consequences

[164] Dr. Patel referred to a finding by Dr. Grimbos about ZC’s dysregulated presentation in 2017 due to repeated trauma exposure from a young age.

[165] The impulsivity and disinhibition commented upon by the experts manifested themselves in the offences and the circumstances that surround them. When ZC was released from his previous detention, he ran almost immediately when he was not able to return to Mr. Dennis’ home.

[166] Far from representing maturity and organizational ability, I find that the act of running was the height of impulsivity and recklessness. ZC had nowhere to go. He could not wait while Mr. Dennis tried to straighten things out with the CCAS, even though Mr. Dennis wanted ZC to return to his care. Mr. Dennis went to far as to terminate his relationship with Cornerstone in order to deal directly with the CCAS. While on the run, ZC lived roughly, in a car or couch surfing. He explained to Dr. Patel that he robbed as he had no money. He stated: “basically I was living on the streets and I didn’t really have a place to go and I wasn’t thinking straight and the only way I was going to get money was to rob stores and stuff.” This behaviour is not indicative of adult decision making.

[167] Of course, ZC had also committed robberies in 2017 when he had Mr. Dennis’ roof over his head. And his comment included a level of justification for his conduct. Further, there was likely, as the Crown has emphasised, a level of image management involved in his portrayal of his situation and justifications for his actions. But as both Dr. Foti and Dr. Patel found, that image management did not make all of ZC’s statements unbelievable. They also had an impression of sincerity as well.

[168] I note that in R. v. M.W., the fact that the murder had been planned was not sufficient to find that the impulsive youth should be sentenced as adults. The same is true of a youth record that included failure to comply convictions. Similarly, the decision of ZC to run from care, live rough in the community and commit the subject offences were rash and impulsive. I do not find that the acts of ZC in committing the offences while on the run were the acts of a planned and deliberate adult, acting rationally.

[169] I note that ZC had no trouble with the law before 2017. He then went from the colloquial “zero to one hundred” in a short period of time - committing the number of robberies in 2017 for which he was caught. In regard to the offences before the court, he was caught after a spree of only eight days of robberies and after the stolen getaway car died on the road. This was not the stuff of sophisticated criminals. Recall that as Bala and Anand wrote (as quoted by Epstein J.A. in M.W., above):

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.

[170] I find that ZC’s decision to run from care, live rough in the community, and commit the offences while on the run was rash and impulsive. It was reflective of the mental health concerns cited by each of Dr. Grimbos, Dr. Foti and Dr. Patel. That behaviour does not reflect the acts of an adult, acting rationally. ZC’s comment that he wasn’t thinking straight rings true.

[171] In sum, I find that the Crown has not overcome the presumption of ZC’s diminished moral blameworthiness and culpability under CYFSA s. 72(1)(a).

Would a youth sentence be of sufficient length to hold ZC accountable for his offending behaviour?

[172] The Crown argues that only an adult sentence of eight years would hold ZC sufficiently accountable for his offences. It points to cases in which sentences in that range have been imposed. My answer to the first question regarding diminished moral blameworthiness and culpability is sufficient to deal with the issue of adult vs. youth sentence. But if I am incorrect, I nonetheless find that a youth sentence, particularly a maximum one, can be sufficient to hold ZC accountable for his offences.

[173] The starting point is pre-sentence custody. ZC has been in custody for 999 days between the date of his arrest, December 31, 2017 and the date of sentencing, September 25, 2020.

[174] If I were to grant ZC credit at a ratio of 1 to 1:5 against the sentence that I impose, I would give him credit for the equivalent of 1,499 days or 4.1 years in pre-sentence custody. However, in R. v. M.W., above, the Ontario Court of Appeal clarified that the youth court has the discretion to determine how much credit, if any, should be offered to the youth for his or her pretrial detention. As Epstein J.A. wrote in M.W. at para. 78:

Section 38(3)(d) of the YCJA requires the youth court judge to take detention "into account", but the judge is not required to actually deduct pre-sentence custody when crafting an appropriate sentence. Whether and to what extent credit is given for pre-sentence custody against a youth sentence is within a youth court judge's discretion, particularly in the context of a Crown application to sentence a youth as an adult: W. (D.), at para. 3; R. v. B. (M.), [2016] O.J. No. 5365, 2016 ONCA 760. In such cases, pre-sentence custody can be taken into account as a consideration in determining whether the young person would serve an adult or youth sentence as opposed to through an actual credit to length of sentence imposed. Other appellate courts have come to the same conclusion…

[175] If I were to follow that path and offer ZC no pre-sentence credit, I could still sentence him to a maximum three-year youth sentence, as the court did in R. v. M.W. Even if he were sentenced as an adult to the eight-year term requested by the Crown, he would have 3.89 years to serve (after deducting the 4.1 years pre-sentence credit). That makes the difference between a maximum youth sentence and the sentence requested by the Crown only .89 years or 325 days.

[176] There is no question that the offences that ZC committed are serious and require a significant period of custody to reflect that seriousness and the harm done. But I must also consider the other sentencing factors cited below. Those factors include, within the context of accountability, the potential collateral immigration consequences that would lead to ZC’s deportation if he were sentenced as an adult, and the chances of his rehabilitation.

[177] In considering all of those factors, I find that a youth sentence would hold ZC sufficiently accountable for his offences.

What Youth Sentence Should I Impose on ZC?

[178] Under s. 38(3), in determining a youth sentence, a youth justice court shall take into account:

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[179] Here, as set out above, I find that:

a) ZC was an active participant in the robberies and related offences. While the Crown asks me to find that he was a leader, I cannot make that finding on the evidence. But he was not a mere follower either. He was a full participant.

b) Each store clerk robbed was harmed and/or emotionally traumatized to at least some extent. For most of the store clerks, the physical harm was not the most significant impact of the robbery they endured. It was the emotional trauma suffered in the aftermath of the threats, the use of a firearm to emphasize the threats, the stolen items and money, and the profound fear engendered by the robberies.

c) ZC has not offered any reparations to the victims of his crimes. That factor is not an aggravating one, rather it represents the absence of a mitigating factor.

d) As set out above, ZC has spent a significant period of time in pre-sentencing custody – 999 days, which, with a 1.5/1 credit, is the equivalent to 4.1 years.

e) I have set out ZC’s record above. He was convicted of seven previous robbery incidents that occurred between March and November 2017. His record is a relevant and aggravating factor. However, as Hill J stated in R. v. Dusanjh, citing R. v, Larche, 2006 SCC 56, 2006, 2 S.C.R. 762 at paras. 28-30 and R. v. Taylor, 2004 CanLII 15504 (ON SC), [2004] O.J. No. 34, 39 (Ont. C.A.) at paras. 39-40:

Of course, an offender is not to be re-punished for prior crimes and a sentencing court may not raise a sentence beyond what would otherwise be a fit sentence on account of a prior record. Depending on its nature, as in the present case, the record may temper the leniency to be expended by the court, as the criminal history is highly relevant to specific deterrence, the chances of rehabilitation, and the likelihood of recidivism.

f) Any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section: I set out those factors below.

Aggravating and Mitigating Factors

[180] The aggravating factors are:

a) The gratuitous violence that was part of the robberies.

b) The vulnerability of the innocent store clerks. As Hill J. wrote in R. v. Dusanjh, 2016 ONSC 4317: “Employed victims working alone in convenience-like establishments, even on day-shifts, are particularly exposed to robbery” (see also: Regina versus Carrière, 2002 CanLII 41803 (ON CA), 2002 164 CCC (3d) 569 (Ont. C.A)., at paragraph 11, where the court stated that “operators of convenience stores are a particularly vulnerable group”).

c) Here, the store clerks were exposed to and threatened with a firearm and in some of the robberies, knives as well. In the Mac’s Milk robbery of December 30, 2020, ZC threatened Habib Ahmed with a large machete. In addition, the store clerks were exposed to further risk should the firearm have gone off during the course of the robberies.

d) The personal robbery of the clerks. A number of clerks had significant sums of money and personal items stolen. For example, Ashok Bhattia was robbed of $5,400. This money was never recovered. In addition, the theft of wallets and phones from the store clerks exposed a great deal of their private information to the robbers, who had threatened to harm a number of the clerks;

e) The fear and trauma that the store clerks reported in their victim impact statements and the effect of that fear and trauma upon them following the robberies;

f) The robberies were part of a series of five in the Brampton/Georgetown area;

g) ZC was subject to a probation order and a weapons prohibition order at the time he committed these robberies.

[181] On the other hand, there are a number of mitigating factors as well:

a) ZC has suffered a very difficult and deprived childhood. That childhood included an abusive father, surviving a hurricane, travel to a new country at age 3 with a mentally ill mother and two brothers, abandonment by his mother, all three children coming into care at age six because of the mother’s mental illness, the suicide attempt of his mother, the suicide of his older brother, and numerous moves within the child protection and school systems.

b) ZC has a number of mental health challenges. They are informed by the complex trauma which he experienced. He suffers from ADHD and at least in the telling of Dr. Patel, the s. 34 psychiatrist, PTSD. While Dr. Foti does not agree with that diagnosis, he agrees with both Dr. Patel and Dr. Grimbos that ZC’s mental health condition can best be understood through a lens of complex trauma.

c) ZC is a young Black man who has gone straight from the child welfare to the criminal justice system. While, as the Crown submits, it is fair to say that no evidence has been presented of a direct link between the two for this young man, one cannot ignore the issue of the overincarceration of young Black males and the social ills that this fact engenders. In saying that, I acknowledge that the Ontario Court of Appeal was clear in R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252 (Ont. C.A.) that the fact that an offender is a member of a group historically subject to racial or gender bias does not in itself create a mitigating factor. I also acknowledge the dialogue on this issue articulated in R. v Jackson, R. v. Husbands, and R. v. Brissett and Francis, set out above.

d) While it can be further stated that the CCAS eventually found ZC a placement that included his surviving brother, T, and a caring Black foster father, that home was provided after many previous moves.

e) Further, it cannot be ignored that the eight-day crime spree for which I am sentencing ZC began after he has not allowed to return to what appears to be the only stable placement he has had since he came into care. That is not to say that ZC would not have committed these crimes had he been returned to Mr. Dennis’ home. ZC committed a number of crimes while he was in Mr. Dennis’ care. But the removal from his home accelerated an impulsive process that may have gone in another direction. Dr. Grimbos forecast a very adverse result if ZC were not allowed to return to that home.

f) ZC has expressed remorse and contrition for the offences he committed. While there were reasons for the two recent s.34 assessors to question whether ZC was engaging in positive image management, he has expressed remorse to them. Like Ms. Delle Donne, they were open to relying on that remorse as a factor in their assessments. The assessors adopted a nuanced view where they saw ZC exhibiting both sincerity and elements of positive image management.

g) There is evidence that ZC has taken some very positive steps to change his life and approach to rehabilitation. That factor is most strongly raised in Ms. Delle Donne’s updated PSR. There, she refers to the improvements in ZC’s behaviour since November 2019, the approbation of staff about those improvements, the voluntary decision to change custodial institutions after running into trouble, and his positive place at the top of his new institution’s behavioural system.

h) One further mitigating factor is the constant support of Mr. Dennis. He has attended court most days, even though he has not been ZC’s foster father since December 2017. Mr. Dennis is willing to take ZC back into his home, to be reunited with T. There, Mr. Dennis will support ZC’s rehabilitation. Yet Mr. Dennis will insist that ZC follow house rules, have a job and/or go to school. This plan, if combined with therapy, and support from the CCAS (and its worker, Ms. Wong, who was also present in court throughout the trial) likely offers society the best chance of seeing ZC live a productive and non-criminal life.

Collateral Consequences

[182] ZC asks the court to consider the potential collateral consequences to his immigration status of any sentence granted to him. The court may take any such consequences into account as long as the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. Collateral consequences are not, strictly speaking, aggravating or mitigating factors; rather they refer to principles of individualization and parity in sentencing. They may also speak to rehabilitation in the sense that one of two proportionate sentences better contributes to the offender’s rehabilitation (R. v. Pham, [2013] S.C.J. No. 15 at para. 11).

[183] ZC points to his immigration status and the risks to him of deportation if he is sentenced as an adult. ZC was in the care of the CCAS for over ten years when he was arrested for the offences now before the court. He was its permanent (Crown) ward for many of those years. Yet the Society never obtained his Canadian citizenship, which would have prevented his deportation. There is no evidence to explain that lapse, although there has been a suggestion that the CCAS was unable to apply until ZC turned eighteen. No evidence or authority has been provided to me in support of that explanation. ZC now stands at risk of deportation to a country, Grenada, that he has not set foot upon for the last 16 of his 19 years, and to which he has virtually no connection.

[184] The Crown concedes that immigration consequences may be properly considered as a collateral consequence (see R. v. Pham, at para. 13 and 14). However it essentially argues that ZC will likely be deported whatever his sentence, and whether or not he is sentenced as an adult, so his immigration status should not be a consideration in my sentencing. It offers no evidence in support of that assertion.

[185] The Crown argues first that ZC should be sentenced as an adult. Thus, he would be inadmissible under s.36(1)(a) of the Immigration and Refugee Protection Act (“IRPA”), as having been convicted in Canada of an offence under an Act of Parliament for which there is a maximum sentence of at least 10 years or for which a sentence of more than six months has been imposed. However it concedes that a youth sentence is exempt from that provision (IRPA s.36(e)(iii)). That is one of the considerations that led to my finding that a youth sentence would reflect accountability for ZC’s offences.

[186] Despite that finding, the Crown argues that ZC can be deported on national security grounds as “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada” per IRPA s.34(1)(e), or as a member of a criminal organization under IRPA s.37(1)(a).

[187] With regard to s.34(1)(e), that provision does not apply to ZC since his criminal or violent conduct has no link with national security (Mason v. Canada (Minister of Citizenship and Immigration), 2019 FC 1251, [2019] F.C.J. No. 1127 at para. 2; Dleiow v. Canada (Minister of Citizenship and Immigration), 2020 FC 59, [2020] F.C.J. No. 40 at para. 9)

[188] Turning to IRPA s.37(1)(a), dealing with organized criminality, that provision reads as follows:

Organized criminality

37 (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for

(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern;

[189] As the Crown points out, there is no exemption under s.37(1) for those convicted of crimes and sentenced as a youth.

[190] The Crown cites He v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] F.C.J. No. 452 (F.C.C.). at para. 29, where Mosely J. states: “the case law has clearly established that it is not necessary to demonstrate that the person concerned is a member of an organization, but rather that there are reasonable grounds to believe that he or she is a member: paragraph 37(1)(a) and section 33 of the IRPA.” Membership in an informal gang may meet that criterion. In that case, the Immigration and Refugee Board member’s finding was that there were reasonable and probable grounds to find that Ms. He was a member of a loosely affiliated gang that ran a marijuana grow-op, led by a named individual. Upon judicial review, that finding was upheld by Mosley J. A as being reasonable. A similar finding was made in regard to another loosely affiliated drug gang in Sohn v. Canada (Minister of Public Safety and Emergency Preparedness), [2014] I.A.D.D. No. 39.

[191] However the looseness of the definition of a criminal organization cited in He and Sohn must be contrasted to the comments of the Federal Court of Appeal in Sittampalam v Canada (MCI), 2006 FCA 326. There, the court accepted that criminal organizations are loosely organized and that they “do not usually have formal structures like corporations or associations that have charters, by-laws or constitutions.” Nonetheless there have to be some criteria to define such organizations. At para. 38, the court looked to the existence of "’some characteristics of an organization’, namely ‘identity, leadership, a loose hierarchy and a basic organizational structure’"(see Thanaratnam v. Canada (Minister of Citizenship and [page213] Immigration), 2004 FC 349, [2004] 3 F.C.R. 301 (F.C.), reversed on other grounds, 2005 FCA 122, [2006] 1 F.C.R. 474 (F.C.A.)). The court in Sittampalam also looked to “other factors, such as an occupied territory or regular meeting locations”.

[192] In Saif v. Canada (Minister of Citizenship and Immigration), 2016 FC 437, [2016] F.C.J. No. 412, Barnes J. of the Federal Court adopted the Sittampalam analysis. He found that when looking at s.37(1)(a), it was necessary to consider the “structural features” of the alleged criminal organization in considering the factors described in Sittampalam (para.9).

[193] He and Sohn can be distinguished from the facts in this case. Neither of those cases involved a youth. In both, the excluded individual was a member of a gang that was far more organized than the loose affiliation of four boys and one or two random others who committed the index robberies. In He, the individual was a member of a marijuana grow-op organization whose leader was known and named (or at least nicknamed as “Uncle”) in the decision. In Sohn, the individual was a member of a group of four people engaged in international drug smuggling to Korea. The level of organization in both cases, although not formal in the sense of having membership in a named gang, was far greater than that in this case.

[194] Here, I find that ZC is not a member of or affiliated with a gang. I have already written of his time in custody and the lack of proof of his alleged gang membership, one that the Crown concedes. There is no evidence of any affiliation to gangs other than knowing some members and a desire to stay away from members of another gang. With regard to the offences themselves and the people with whom ZC perpetrated them, again I find no gang membership.

[195] I also find that although the offences of which ZC stands convicted were committed by multiple youths, they were not a criminal organization. ZC and three other youths aged between 14 and 15, and joined on occasion by one or two other random youth, robbed five convenience stores in eight days while ZC was on the run from the CAS. This group had no real common identity. I find that they had no clear leadership, hierarchy, or any basic organizational structure.

[196] In sum, ZC is not a member of or affiliated with a gang or a criminal organization. Nor is he a threat to national security. I cannot speak for the manner in which the immigration authorities or the Federal Court will deal with the facts of ZC’s involvement in the index offences or his time in custody. But based on the facts as I have found them above, I am not convinced that ZC’s circumstances would be captured under IRPA s.37(1)(a).

Parity Principle

[197] Under s.38(1)(2), “the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances.” Here, there are three other youths who received youth sentences for virtually the same offences. None received as much as two years, even including pre-sentence custody. However, each co-accused was younger than ZC, pleaded guilty, and had little or no previous record. Nonetheless, the court cannot ignore that they were involved in the same offences.

Rehabilitation

[198] Under YCJA, s.38(1), a significant element of the purpose of sentencing is to promote the offender’s rehabilitation and reintegration into society. That process contributes to the long-term protection of the public. Taking Dr. Foti’s point about the need for a youth sentence that is focussed on treatment and rehabilitation (a point echoed by Dr. Patel without reference to youth or adult sentence), such a result would be ideal for ZC. It offers the greatest chance of reducing the risk of his recidivism.

[199] Based on the evidence of ZC’s most recent behaviour, there is a reasonable prospect that he has turned a corner and will embark down a road that will keep him open to treatment and rehabilitation.

Sentence

[200] For the reasons cited above, I sentence ZC to three years in custody and supervision, which, pursuant to YCJA s.42(2)(n), shall consist of two years in closed custody and one year in community supervision. Of course, the period of closed custody may be reviewed to allow a period of open custody before community supervision, as also recommended by Dr. Foti.

[201] In accord with YCJA s. 42(4), I state the following to ZC with regard to that order:

You are ordered to serve 24 months in custody, to be followed by 12 months to be served under supervision in the community subject to conditions.

If you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of the second period in custody as well.

You should also be aware that, under other provisions of the Youth Criminal Justice Act, a court could require you to serve the second period in custody as well.

The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence.

[202] The following terms will apply to ZC’s period of community supervision:

(a) keep the peace and be of good behaviour;

(b) report to the provincial director and then be under the supervision of the provincial director;

(c) inform the provincial director immediately on being arrested or questioned by the police;

(d) report to the police, or any named individual, as instructed by the provincial director;

(e) advise the provincial director of your address of residence and report immediately to the provincial director any change

(i) in that address,

(ii) in your normal occupation, including employment, vocational or educational training and volunteer work,

(iii ) in your family or financial situation, and

(iv) that may reasonably be expected to affect your ability to comply with the conditions of the sentence; and

(f) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized in writing by the provincial director for the purposes of the young person participating in a program specified in the authorization.

[203] In addition, I impose the following mandatory terms to ZC’s sentence:

a) Under s. 51(1) of the YCJA, I prohibit ZC from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. As requested by the Crown (and opposed by the defence, which requests a ten-year term), I impose that term for life. I do so because of the level of violence in these robberies, the impact of that violence on the victims, ZC’s prior offences, and the fact that he was on probation at the time at the time of the offences. At that time, he was bound by a number of terms, including a weapon prohibition.

b) I make an order in Form 5.03, under s. 487.051 of the Criminal Code, for the taking of DNA samples from ZC.

[204] At the request of ZC’s probation officer, Ms. Delle Donne and on consent of both parties, I order that the reports of Dr. Foti, Dr. Patel and Dr. Grimbos be released to Ms. Delle Donne and any members of the youth probation staff who have dealings with ZC, pursuant to YCJA s. 119(1)(s)(ii).

[205] The Crown has requested that I impose a no-contact order under s. 743.21 of the Criminal Code. However it must be recalled that, as Abela J. wrote for the majority in R. v. D.B., at para 41: “we have a separate legal and sentencing regime for young people”. Here, there is no provision for such an order under the YCJA.

[206] YCJA s. 42(1), sets out the applicable sanctions available to a youth court judge when a young person is found guilty of an offence and sentenced as a youth. The wording of the provision is quite specific when it states: “…the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other …” There is no reference to additional sanctions available under the Criminal Code.

[207] Further, under s. 50 of the YCJA, subject to certain exceptions that do not apply here, the sentencing provisions of the Criminal Code to not apply to the sentencing of youths. It states:

Application of Part XXIII of Criminal Code

50 (1) Subject to section 74 (application of Criminal Code to adult sentences), Part XXIII (sentencing) of the Criminal Code does not apply in respect of proceedings under this Act except for paragraph 718.2(e) (sentencing principle for aboriginal offenders), sections 722 (victim impact statements), 722.1 (copy of statement) and 722.2 (inquiry by court), subsection 730(2) (court process continues in force) and sections 748 (pardons and remissions), 748.1 (remission by the Governor in Council) and 749 (royal prerogative) of that Act, which provisions apply with any modifications that the circumstances require.

Section 787 of Criminal Code does not apply

(2) Section 787 (general penalty) of the Criminal Code does not apply in respect of proceedings under this Act.

[Emphasis added]

[208] Further, unlike s. 487.051 of the Criminal Code, there is no separate provision for such a sentencing term applying to a youth.

[209] Ms. Della Donna wrote in her PSR that conditions of a community supervision order should include terms that require him to attend counselling as directed by his Probation Officer, reside where approved of by Probation Services and to attend school or obtain regular employment. However under YCJA s. 97(2), only a provincial director and not the court may set conditions on the community supervision portion of the sentence. That being said, I find that each term recommended by Ms. Della Donne is reasonable and necessary, particularly the counselling term.

[210] I further and strongly recommend to ZC that he engage in counselling and therapy during the custodial portion of his sentence. I remind him of the fact that progress in counselling would greatly assist him in any aspect of his rehabilitation and any request to review his closed custody.

“Marvin Kurz J.” Electronic signature of Justice Marvin Kurz, Original will be placed in court file

Dated: October 2, 2020

COURT FILE NO.: 2/19

DATE: 2020-10-02

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Z.C.

REASONS FOR SENTENCING

Kurz J.

Released: October 2, 2020