Court File and Parties

COURT FILE NO.: YC-21-50000002-0000 DATE: 2022-03-18

ONTARIO SUPERIOR COURT OF JUSTICE

YOUTH JUSTICE COURT

B E T W E E N:

HER MAJESTY THE QUEEN - and - N.N., K.H. and Y.N. young persons

Counsel: Laurie Gonet and Gus Kim, for the Crown Robb MacDonald, for N.N. Maija Martin, for K.H. Andrew Edgar and Elliot Willischick, for Y.N.

HEARD: January 21 and February 28, 2022

Section 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1 prohibits the publication of the nameS of N.N., K.H. and Y.N. or any other information that would identify N.N., K.H. and Y.N.

FORESTELL J.

Reasons for Sentence

Overview and Issues

[1] N.N. entered a guilty plea to a charge of second degree murder and K.H. and Y.N. entered guilty pleas to manslaughter, all in relation to the killing of Hashim Kinani on May 14, 2020.

[2] At the time of the murder of Mr. Kinani, N.N. was 17 years old; K.H. was 16 years old and Y.N. was 15 years old. They are now 19 years old, 18 years old and 17 years old respectively. The provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”) govern this sentencing.

[3] The maximum youth sentence for second degree murder is a seven-year custody and supervision order. The maximum period of custody under such an order is four years. The portion of the sentence that is not served in custody is spent under conditional supervision in the community.

[4] With respect to the fit sentence for N.N., both Crown and defence agree that, without consideration of presentence detention, a seven-year custody and supervision order would be appropriate. However, they disagree on the length of the custodial portion of that order and on the quantum of the reduction in sentence for the time spent in pre-sentence detention.

[5] The Crown submits that the maximum period of custody of four years should be imposed and that N.N. should receive 1:1 credit for just under 22 months of actual custody. This would leave 26 months to be served in custody and three years to be served under conditional supervision in the community.

[6] The position of counsel for N.N. is that N.N. should be required to serve 3.5 years (or 42 months) in custody and 3.5 years under conditional supervision in the community. He submits that N.N. should receive 1.5:1 credit for presentence custody. This would mean that N.N. would serve nine further months in custody and 3.5 years under supervision.

[7] With respect to K.H. and Y.N., the Crown and defence agree that both young people should receive the maximum youth sentence of a three-year custody and supervision order, absent consideration for presentence custody. The only issue is the amount of credit for presentence custody.

[8] K.H. has been in custody for just over 15 months. The position of counsel for K.H. is that credit of 1.5:1 should be given for the presentence custody. The Crown’s position is that no more than 1:1 credit should be given which would leave a further nine months to be served in custody to be followed by one year of conditional supervision in the community. The defence submits that a further period of custody of two months would be appropriate with one year of conditional supervision.

[9] Y.N. has been in custody for just under 22 months. The Crown submits that a further period of custody of two months is required to be followed by one year of conditional supervision in the community. Counsel for Y.N. submits that no further custody is required and that no more than six months of conditional supervision in the community should be imposed.

Circumstances of the Offence

[10] The circumstances of the offence are set out in the Agreed Statement of Facts. On April 1, 2020, there was a fight between a group of Christian Iraqis and a group of Muslim Iraqis. N.N. and Hashim Kinani were involved in that fight. As a result, there was ongoing conflict between Mr. Kinani and his family and N.N. and his group of friends. The group of friends included K.H. and Y.N. This conflict included harassment, intimidation, property damage and assaults. It also included the harassment of Hashim’s two brothers.

[11] On May 14, 2020, Hashim Kinani was in his truck with one of his brothers when he was approached by K.H. Mr. Kinani invited K.H. into the truck to try to make peace. K.H. got into the rear seat of the truck and was joined shortly thereafter by Y.N. and another person. During the time that K.H. and Y.N. were in the truck they were communicating with N.N. K.H. and Y.N. directed Hashim Kinani to drive behind a building. Once parked, a physical fight broke out between the Kinani brothers in the front seat and the three passengers in the rear seat. K.H. and Y.N. committed assaults on the Kinani brothers. They also summoned N.N. to attend. They did not know that N.N. would come with a gun. N.N. arrived a few minutes later with a handgun. Less than one minute after his arrival, N.N. shot Hashim Kinani with the intent to kill him. As a result of the gunshot wound, Mr. Kinani accelerated and crashed his truck. The two Kinani brothers and Y.N. continued to struggle in the vehicle. N.N. then fired a second shot that struck the rear passenger quarter panel. He also approached the vehicle and pointed the gun at Hashim Kinani’s brother but he did not fire. This allowed Y.N. to break free and flee with N.N. and K.H. The handgun was concealed in a stand of trees near the scene.

[12] Hashim Kinani died from a single gunshot wound that entered his back and exited through his chest, piercing his lung and portions of his vertebra.

[13] N.N. and Y.N. were arrested on May 21, 2020. K.H. was not identified and arrested until December 15, 2020.

[14] After the shooting, a replica handgun was seen on the ground outside the Kinani vehicle. Hashim Kinani’s brother gave evidence that Hashim owned a BB gun but that he did not see the BB gun on the day of the shooting. He was inconsistent in his evidence with respect to where or if the gun was kept in the vehicle. Although there is no agreement with respect to who, if anyone, introduced the replica handgun into the confrontation and what role it played, it is agreed that N.N. shot and killed Mr. Kinani without any legal justification.

Victim Impact

[15] A Victim Impact Statement was obtained from Hashim Kinani’s mother on behalf of the family by the Victim Witness Assistance Programme. There are two aspects of the Victim Impact Statement that I have disregarded. First, the family said that they have been threatened since the offence. There is no evidence that any of the young people before me were responsible for threats against the family. Second, the family expressed a view as to the sentence to be imposed and I have disregarded that part of the statement.

[16] I have considered the statement of the impact of the offence on the family. It is clear from the Victim Impact Statement that the murder of Hashim Kinani has had a profound impact on his entire family. The loss of their son and brother has affected the mental health of Mr. Kinani’s mother and siblings. They are all fearful. They have relocated because of their fears for their safety after the violent death of Hashim. I have considered the impact on the family in determining the appropriate sentence while recognizing that no sentence could ever compensate them for their loss or relieve their grief.

Legal Principles

General Principles

[17] Subsection 38(1) of the YCJA sets out the purpose of sentencing under the Act which is to hold a young person accountable through the imposition of just sanctions that have meaningful consequences for the young person and that promote their rehabilitation and reintegration into society thereby contributing to the long-term protection of the public and reintegrating them into society.

[18] Accountability in the context of determining whether to impose an adult or youth sentence has been held to be the equivalent of the adult sentencing principle of retribution [1]. In R. v. O.(A.), the Court of Appeal held that for a youth sentence to hold a young person accountable it must reflect the moral culpability of the offender having regard to the intentional risk-taking, the consequential harm and the normative character of the conduct. [2] Rehabilitation and reintegration, however are explicitly required to be considered in the accountability calculus [3].

[19] Subsection 38(2) of the YCJA sets out sentencing principles that apply to youth sentences. The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person. It must not be greater than the appropriate sentence for an adult convicted in similar circumstances. It must be similar to sentences imposed on similar young persons, found guilty of the same offence committed in similar circumstances.

[20] The sentence must be the least restrictive sentence capable of achieving the purpose articulated in s. 38(1) of the Act.

[21] The sentence may have the objectives of denunciation and specific deterrence, but general deterrence does not play a role [4].

[22] The factors that I must consider in order to determine a youth sentence are enumerated in subsection 38(3). The relevant factors applicable in this case are: the degree of participation of the young person; the harm done to the victim and whether it was intentional or reasonably foreseeable; any aggravating or mitigating circumstances; and the time spent in detention as a result of the offence.

Presentence Detention

[23] While the length of the sentence is not in issue in this case with respect to any of the three young people, the purpose, principles, and factors set out in s. 38 of the YCJA all apply to the determination of the length of the custodial portion of the youth sentence and to the determination of the mitigation of the sentence to reflect the time spent in detention.

[24] Subsection 38(3)(d) requires me to take into consideration the time spent in detention, but I am not required to 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. [5] The credit is not a mechanical calculation. [6]

[25] My discretion must be exercised in a manner that serves the sentencing objectives and principles in the YCJA.

[26] The approach to the reduction of a period of custody in a custody and supervision order for a young person differs from the credit given to adult offenders for pre-sentence custody. There are reasons for the difference. One rationale for the reduction of 1.5 days for every day spent in adult custody is that adult offenders, after sentencing, receive statutory remission that reduces their time in custody and makes them eligible for early release. This scheme is inapplicable to young people. A further rationale is that adults in presentence custody have fewer programmes and more onerous living conditions than post-sentence conditions in reformatories or penitentiaries. This is not the case with youth [7].

[27] However, the principle of parity, which is a factor in adult sentencing, is also a factor in youth sentencing. A sentence imposed on a youth should be similar to that imposed on other youth sentenced for the same offence in similar circumstances. Where one offender has been in detention pending sentencing and another has been out of custody, it would be unfair to impose the same period of custody on the two offenders if other circumstances were comparable. The principle of parity must be considered in determining the reduction, if any, in the period of custody due to presentence detention.

[28] In R. v. T.B. [8], Lang J.A. characterized 1.5:1 as the starting point for credit for presentence custody but wrote that other factors must be considered, including the conditions of the detention, the reasons for the detention, the reasons for the delay in reaching trial or sentencing and the youth’s need for further custody to meet the purposes of the YCJA.

Youth Sentences for Second Degree Murder

[29] In the case of R. v. T.J.T. [9], Justice Garson imposed the maximum youth sentence on a young person for second degree murder and gave no credit for the three years spent in detention, saying “I am satisfied that this is one of those rare and exceptional cases where, after carefully considering the extensive time in pre-sentence custody, I must exercise my discretion and give T.J.T. no credit for pre-sentence custody.” He noted that T.J.T.’s first twenty months in custody was plagued by immature, impulsive and disrespectful behaviour. It was only in the 16 months before sentence was imposed that the young person had begun to make progress. He was only at the beginning of his therapeutic recovery. A period of one year in custody would have been insufficient to hold T.J.T accountable or to properly allow for his rehabilitation.

[30] In R. v. T.F.D. [10], the young person entered a guilty plea to second degree murder. He shot a man in a failed robbery attempt. He was given the maximum youth sentence of seven years of custody and supervision with the first four years being served in custody. He received no credit for 17.5 months of pre-sentence custody. Ratushny J. described the option of giving no credit for presentence custody as atypical in sentencing generally but a well-established option in youth sentencing. She referred to the time needed for T.F.D. to reinforce his coping skills and response mechanisms.

[31] In both T.J.T and T.F.D. the Crown had sought an adult sentence. The option of giving no credit for presentence custody was a factor in the decision that a youth sentence could be fashioned that would hold the young person accountable.

Manslaughter Sentences

[32] In R. v. A.D. [11], the two offenders were convicted of manslaughter as a result of the killing of the victim during a fight between two groups. Both offenders had prior youth findings. The Crown did not seek an adult sentence for either young person. The maximum youth sentence of three years was imposed with the first two years in custody and the last year under conditional supervision. Both offenders received credit of 1.5:1 for presentence detention. There is little analysis of the reason for the 1.5:1 credit, but the Youth Court judge does note that with respect to one of the offenders, the assessment team saw no benefit to a further period of incarceration.

Application of the Principles

Circumstances of N.N.

[33] N.N. just turned 19 years old. He has no prior involvement in the criminal justice system.

[34] His background and circumstances are set out in detail in the Pre-Sentence Report filed on sentencing.

[35] N.N. was born in Canada after his mother and brother came to Canada as refugees from Iraq via Lebanon. N.N.’s father died of cancer in Lebanon while the family waited to come to Canada. N.N.’s mother had a difficult transition to Canada as a single mother who did not speak English. N.N. has a close relationship with his mother who remains supportive of him.

[36] N.N. did well in school until around grade 10. He described to the probation officer that he had two groups of friends, one of which was a positive peer group and one of which was negative.

[37] School records disclose that in grade 10, N.N. failed all courses but two and had a high number of absences. He was suspended three times and in September 2019 was expelled because of a serious physical altercation. He was given a placement in another school but never attended the other school. He was not attending school prior to his arrest for the killing of Mr. Kinani.

[38] Since his detention at the Roy McMurtry Youth Centre (“RMYC”), N.N. has obtained eight high school credits and is working on three more. He is supported through an Individual Education Plan (“IEP”) to accommodate a diagnosed learning disability and language barrier. He attends school daily, and no concerns have been noted in relation to his behaviour or academic progress. He has, on numerous occasions since the Spring of 2021, been the recipient of RICH awards for demonstrating responsibility respect, inclusivity, honesty, cooperation and caring. He has received the Student Success award every month since the summer of 2021 for his academic achievements. In January of 2021, because of COVID, in-person school was converted to on-line learning. The youth at RMYC were given the option of answering daily calls from their teachers because the youth in the facility did not always have access to the internet. N.N. always responded to these calls and completed his schoolwork independently.

[39] N.N. had some work experience prior to his arrest and detention. He worked in the banquet hall industry for family friends and worked for his uncle in landscaping briefly. His last job was in carpentry with a family friend. All jobs were very short-lived.

[40] When N.N. was admitted to RMYC, he was offered the opportunity to participate in a programme that provided support by a probation officer during the period of detention and lasting 30 days after release. N.N. agreed to participate and was assigned a probation officer. He participated in monthly telephone calls with the probation officer to update the probation officer on his progress. His probation officer describes him as respectful, polite and mature in his thinking. She states that he has gained insight into the negative influences that contributed to his conduct.

[41] Records from RMYC disclose only one Serious Occurrence Report describing a physical altercation in which N.N. became involved in a fight to support another youth. With the exception of this incident, N.N.’s conduct has been exemplary during his time in detention. His primary worker described him as mature and a positive influence on his peers. He was, at the time of the writing of the Pre-sentence Report, on the highest level of the ‘Youth Enhanced Support Programme’. The social worker at RMYC reported notable progress since N.N.’s admission. She has offered supportive counselling to N.N. and intended to incorporate violent offender therapy and victim impact into the counselling sessions as N.N. was awaiting sentence.

[42] N.N. is currently enrolled in the Trades Programme at RMYC and intends to complete high school and pursue a career in the trades. He recognizes the importance of work and plans to work with his brother at a factory upon his release.

[43] N.N. described feeling unsafe in his neighbourhood prior to committing the offence. This was not related to the victim but was due to the gun violence in the community. He acquired the gun that he used in the shooting as a result of this feeling of being unsafe.

[44] Counsel for N.N. also filed an affidavit setting out the impact of the COVID-19 pandemic on N.N. during his time in pre-sentence custody. N.N. was subject to a total of approximately 12 weeks of lockdowns because of COVID outbreaks at the RMYC. During lockdowns the youth are not able to leave their range and are unable to access physical recreation facilities and other programming. During lockdowns, N.N. was typically only permitted to leave his room twice a day — once to shower and once to make a phone call. N.N. contracted COVID while in custody and had to isolate for two weeks.

[45] N.N. expressed regret and remorse for his actions and sadness for the family of the victim. He accepted responsibility for his actions and recognized the pain that he has caused.

[46] N.N.’s probation officer recommends in the Pre-sentence Report that when N.N. is under community supervision he should engage in counselling to address the trauma relating to the loss of his father, the aftermath of the offence and substance use.

The Appropriate Sentence for N.N.

[47] There is no question that the offence of second degree murder committed by N.N. was extremely serious and the role played by N.N. was central. The harm caused was lethal and it was intentional.

[48] There are aggravating factors with respect to the circumstances of the offence committed by N.N. The use of a firearm is an aggravating factor. Also aggravating is the fact that N.N. fired two shots and pointed the gun at the brother of the deceased. The offence occurred in a residential area and put the public at risk. All three offenders fled the scene.

[49] I have not considered the reports of school suspensions as aggravating factors with respect to N.N. There is insufficient information about the incidents to allow me to draw inferences about N.N. and his prior conduct.

[50] Mitigating factors are the guilty plea and remorse exhibited by N.N., the fact that he has not previously been involved in the criminal justice system, his strong family support and his impressive rehabilitative efforts while in custody.

[51] The Crown and defence have jointly submitted that the maximum youth sentence of seven years would be appropriate before a reduction for pre-sentence custody. In light of the aggravating factors and role of N.N., I agree that the maximum seven-year custody and supervision order would be appropriate before consideration of pre-sentence custody.

[52] I have also concluded that N.N. should serve 3.5 years in custody and 3.5 years under supervision in the community. I reach this conclusion because of the progress that N.N. has made while in custody. He has taken advantage of every opportunity offered to him in custody. This is not a case where the rehabilitation of N.N. requires a longer period of time apportioned to custody rather than to supervision in the community. I am of the view that accountability, in the sense of proportionate sanctions that also achieve rehabilitation and reintegration, is best served by this balance of custody and community supervision.

[53] I have also concluded that N.N. should receive credit of 27 months for his 22 months in pre-sentence custody. This will leave 15 months to serve in custody and 3.5 years under supervision in the community.

[54] The conditions at the RMYC were more onerous in the last two years than they were prior to the COVID 19 pandemic. There were periods of isolation and periods of virtual learning and lack of programming. Many of these hardships mirrored the hardships created by the pandemic for youth in the community. However, some hardships experienced by N.N. were very different and more onerous than those experienced by youth in the community during the pandemic. Isolation from his family during lockdowns except for one telephone call a day is a significant hardship. Restriction to a room during lockdowns except for two hours is also significant. Restricted access to the internet to pursue virtual learning is also a hardship that was not generally experienced in the community.

[55] The credit of 27 months for just under 22 months of actual custody sufficiently reflects the hardship of lockdowns without sacrificing the overarching purpose of sentencing which is to hold N.N. accountable for this very serious offence.

[56] In reaching this conclusion I have also taken into account the rehabilitation of N.N. and his reintegration into the community. N.N. has done exceptionally well in custody. He is in a position to continue his rehabilitative process over the next 15 months, including pursuing his education and planning for his transition into the community.

[57] N.N. is now 19 years old and he will turn 20 before the expiry of the custodial portion of this sentence. I recommend that he be permitted to serve the balance of the custodial portion of this sentence in a youth facility.

Circumstances of K.H.

[58] K.H. has just turned 18 years old. He has no prior involvement in the criminal justice system. He comes from a stable supportive family. He was born in Jordan, but both of his parents are originally from Iraq. They came to Canada in 2009 and are Canadian citizens. They have been married for 26 years and have one other older son. Both parents are employed.

[59] K.H. reported having a good relationship with his parents who have tried to encourage him to pursue his education and to avoid violence. K.H. reported that he started arguing more with his father when he entered high school. He also spent less time with his mother after starting high school.

[60] K.H.’s parents have remained supportive of K.H. since his arrest and detention.

[61] K.H. has a total of three high school credits, all of which he has earned while in custody. He is working on completing two further credits. While in the community, K.H. attended high school but was frequently absent. He was suspended from school on three occasions and was expelled in September of 2019.

[62] He has progressed well in his education at RMYC, receiving seven ‘Student Success’ awards of excellence and RICH awards for demonstrating responsibility respect, inclusivity, honesty, cooperation and caring.

[63] In addition to attending school while in custody, K.H. has completed every programme offered to him at RMYC. He has completed two substance abuse courses, courses on emotion regulation and anger management, the Road to Redemption programme, Financial Literacy Programme, employment programme and a life skills programme.

[64] The social worker at RMYC conveyed that K.H. initially struggled with the rules at RMYC. However, he adjusted shortly thereafter. He tends to insert himself into situations that he views as unfair, including attempting to resolve conflicts between staff and peers. He gets along well with both staff and peers. This is confirmed by the Youth Service Manager on K.H.’s unit. He confirmed that K.H. has been consistently on the highest level of the incentive system at RMYC. He reported that K.H. has matured during his time at the facility. His primary worker stated that K.H. is respectful and acts as a role model for other youth on the unit.

[65] There have been eight serious occurrences in which K.H. was involved during his time in custody. Only two were physical altercations in which K.H. was said to be the aggressor. These incidents occurred primarily when he first arrived at the facility and struggled with the rules.

[66] The social worker at RMYC said that K.H. is personable, caring, kind and articulate. He has a strong bond with his family. She identified K.H.’s impulsivity and reactive responses as areas where he will need support. K.H. has engaged in therapy with the psychometrist at RMYC and she reports that he understands the consequences of his actions and has worked on understanding his behaviour and learning from his mistakes.

[67] K.H. told the probation officer that he wished that the offence had never happened. The victim did not deserve to die, and he will regret his actions for the rest of his life. He stated that he prays for the victim’s family every night. He knows that the family is experiencing pain.

[68] When released, K.H. intends to live with his parents and complete his education. He also intends to register in a trades programme or college after completing high school. He will seek part-time employment as well.

[69] The probation officer recommends programming directed at decision-making, emotion regulation, anger management, peer choices, substance abuse and educational concerns. The Pre-sentence Report also notes the availability of a referral to a psychologist if appropriate.

[70] K.H. filed an affidavit outlining the impact of COVID 19 and lockdowns on him during his time in custody. He stated that he struggled with virtual learning. He, like N.N., was not permitted to leave his range for school or programming during lockdowns. He would spend most of the day in his room and would be permitted to leave for only about two hours a day.

The Appropriate Sentence for K.H.

[71] K.H. participated in the physical fight with the deceased and his brother. He along with Y.N., summoned N.N. to the fight. He was a participant in what turned out to be a group attack. The offence of manslaughter is inherently serious. While it involves an unintentional killing, it nevertheless involves the taking of a life.

[72] Aggravating factors are that the assault of Mr. Kinani was part of an ongoing conflict involving harassment and intimidation, the Kinani brothers were outnumbered and K.H. and the others fled the scene.

[73] Mitigating factors are K.H.’s guilty plea and remorse, his strong family support, the fact that he was not previously involved with the criminal justice system and his excellent conduct and progress in custody.

[74] Crown and defence have jointly submitted that the maximum custody and supervision order of three years would be appropriate before consideration for presentence detention, with two years of custody and one year of supervision. In light of the seriousness of the offence and the aggravating factors, I agree that the maximum sentence would be appropriate.

[75] I have concluded that K.H. should be credited with 19 months for his 15 months in presentence custody. This amounts to more than 1:1 credit for the time in custody and leaves 5 months to serve in custody before his release on conditional supervision in the community.

[76] As I have already stated with respect to N.N., the conditions in custody during COVID were more onerous than pre-COVID. Those conditions impacted on K.H. in restricting his access to his family, to educational opportunities and to recreation. While many aspects of the restrictions mirrored conditions in the community, the inability of this young person to easily access family support during periods of lockdown is a significant hardship that he would not have encountered if not for his detention. The inability to consistently access virtual learning is also a significant hardship.

[77] I find that any greater credit would fail to hold K.H. sufficiently accountable for this serious offence. The further five months in custody, in addition to serving the purpose of holding K.H. accountable, will advance his continued rehabilitation and permit a plan to be established to reintegrate him into the community under conditional supervision.

Circumstances of Y.N.

[78] Y.N. is 17 years old. He has no prior involvement in the criminal justice system. Y.N. was born in Iraq. His father was killed in a suicide bombing in Iraq. He had a twin brother who died at age three from a heart condition. His mother fled to Syria with Y.N. and her other son in 2009 when Y.N. was three years old. They came to Canada as refugees in 2011. Y.N.’s mother remarried in 2015. Y.N. has a very close relationship with his mother and stepfather. His stepfather suffered a stroke several years ago and is partially paralyzed on his right side. Y.N. was a help to his stepfather following the stroke. Y.N. also has a good relationship with his brother and with an uncle who has helped to liaise with the RMYC during Y.N.’s detention.

[79] Y.N. has a serious heart condition which requires regular surgeries. He has had two surgeries to date. He hopes to have a further surgery at Sick Kids Hospital before he turns 18 at the end of June of this year.

[80] In the community, Y.N. attended grade 9 in 2019. He was suspended four times in the school year. One suspension was for instigating a fight and making threats. He obtained a total of six credits.

[81] Since his arrest and detention, Y.N. has completed fourteen credits. He has won Student Success Awards for achieving 75% or higher in his classes. He participated in the Construction Technology Programme and was reported to excel in practical hands-on classes. He has received numerous RICH awards for demonstrating caring, cooperation, honesty, inclusivity, respect and responsibility. The Vice-principal describes Y.N. as an outstanding student.

[82] Staff at the RMYC describe Y.N. as a model youth who is mature, receptive to programming and respectful to peers and staff. He shows leadership and mentorship on the unit and has avoided negative peer relations. He has generally been at the highest level of the incentive system.

[83] Y.N. has completed programmes on substance use, financial literacy, employment, anger management and life skills. He has completed all available programmes and is now participating in specialized programming.

[84] Y.N. filed an affidavit setting out the hardships experienced by him as a result of his detention during the COVID 19 pandemic. He was frightened by the prospect of contracting COVID because of his heart condition. Like N.N. and K.H., his access to programming, recreation and phone calls was restricted. He experienced considerable stress as a result of these conditions.

[85] Y.N. has expressed remorse for the offence and has taken responsibility for his actions.

[86] Y.N. would like to pursue employment upon his release. He recognizes however, the value in completing his high school education.

[87] The probation officer recommends counselling for Y.N. to address decision-making, education/employment, peer influence and trauma associated with the loss of his father and the offence.

The Appropriate Sentence for Y.N.

[88] Like K.H., Y.N. committed a serious offence. The aggravating factors are the same: there was a pattern of harassment and intimidation leading up to the offence, the Kinani brothers were outnumbered and Y.N., along with N.N. and K.H., fled the scene.

[89] Mitigating factors are his guilty plea and remorse, the absence of any conflict with the law prior to this offence, his strong family support, and his rehabilitative efforts while in custody.

[90] I agree with the position advanced by Crown and defence, that the maximum sentence of a custody and supervision order for three years would have been appropriate absent consideration of presentence custody.

[91] Y.N. experienced the same hardships as N.N. and K.H. but also experienced fear and stress because of his pre-existing heart condition. I am satisfied that some enhanced mitigation is warranted beyond 1:1 credit. I conclude that credit of 27 months for the 22 months of presentence custody reflects the additional hardships experienced by Y.N. while still holding him accountable for the offence. He will serve one day in custody and nine months on conditional supervision in the community. I have concluded that nine months of conditional supervision is required for the rehabilitation of Y.N. and his reintegration into society.

Conclusion

N.N.

[92] With respect to N.N., without consideration of presentence custody I would have imposed a custody and supervision order of seven years, with 3.5 years to be served in custody and 3.5 years under supervision.

[93] N.N. is to be credited with having served 27 months of custody. I therefore impose a custody and supervision order of four years and nine months with 15 months to be served in closed custody. The remaining 3.5 years is to be served under conditional supervision in the community.

K.H.

[94] With respect to K.H., without consideration of pre-sentence custody I would have imposed a custody and supervision order of three years with two years to be served in custody. K.H. is credited 19 months for 15 months of presentence custody. I therefore order a 17-month custody and supervision order comprised of five months to be served in closed custody and one year under conditional supervision in the community.

Y.N.

[95] With respect to Y.N., I would have imposed a custody and supervision order of three years with two years to be served in custody. Y.N. is credited with having served 27 months in custody. I therefore impose a custody and supervision order of nine months and one day with one day to be served in custody and nine months to be served under conditional supervision in the community.

Conditions of the Supervision Order

[96] While serving the conditional supervision portion of the sentence, each of the three young people must comply with the mandatory conditions set out in s.97(1) of the YCJA. Those are: to keep the peace and be of good behaviour, report to the provincial director and be under the supervision of the provincial director, inform the provincial director immediately on being arrested or questioned by the police, report to the police or to any named individual as instructed by the provincial director, advise the provincial director of his address and immediately report any change in address, occupation, family or financial situation that may impact on his ability to comply with the sentence, and not to own or possess any weapons.

[97] With the agreement of all counsel, I have ordered further conditions, namely that they have no contact with any member of the Kinani family and not be within 500 metres of any location that they know them to be; that they make reasonable efforts to obtain and maintain suitable employment; that they attend school if recommended by the provincial director or their designate; that they reside with a parent or other adult that the provincial director deems appropriate; and that they attend counselling or programming as recommended by the provincial director or their designate.

[98] Further conditions may be set by the provincial director in accordance with subsection 97(2).

Ancillary Orders

[99] There will also be an order for each young person, pursuant to section 487.051 (a) of the Criminal Code, R.S.C., 1985, c. C-46 authorizing the taking of bodily substances for the purpose of DNA analysis and a further order pursuant to section 42(2) (j) and section 51(1) of the Youth Criminal Justice Act prohibiting them from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for life.

[100] I have also ordered that the firearm and ammunition be forfeited.

Forestell J.

Released: March 18, 2022