COURT FILE NO.: YC-22-80000001-0000
DATE: 2022-12-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
J.D., A young person
Counsel:
Robert Kenny and Anjali Rajan, for the Crown
Paul Aubin, for J.D.
HEARD: October 7 and December 13, 2022
WARNING
Section 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1 prohibits the publication of the name of J.D. or any other information that would identify J.D.
FORESTELL J.
REASONS FOR DECISION AND SENTENCE
The Offences
[1] On September 24, 2020, J.D. was involved in three separate shootings. In the first shooting, no one was injured. In the second, a victim was shot in the buttocks and upper legs and injured. In the third shooting, Anthony Martin was killed and Taswrell Salmon was wounded.
History of these Proceedings
[2] On October 7, 2022, J.D. entered a guilty plea to a charge of second degree murder in relation to the killing of Mr. Martin and to a charge of aggravated assault in relation to the wounding of Mr. Salmon. At the time of the offences, J.D. was 17 years old. He is now 19 years old. The provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "YCJA") govern these proceedings because of J.D's age at the time of the offence.
[3] The Crown has applied for J.D. to be sentenced as an adult.
[4] Following J.D.'s pleas, I ordered a psychological report pursuant to s. 34 of the YCJA and a Pre-sentence Report. The s. 34 report was prepared by Forensic Psychologist, Dr. Teresa Grimbos, and Psychometrist, Dr. Julian DiGiovanni. The Pre-Sentence Report was prepared by probation officer Melissa DeSouza.
[5] On December 13, 2022, a hearing was held on the Crown's application for an adult sentence and to determine the appropriate sentence to be imposed.
[6] On the hearing, I had the benefit of the s.34 Report, the Pre-sentence Report, institutional records from the four youth facilities in which J.D. has been held, the video surveillance compilation showing aspects of the offences, Victim Impact Statements, letters of support for J.D. and a letter from J.D.
Issues
[7] The maximum penalty for second degree murder, if J.D. is sentenced as a youth under the YCJA, is seven years of custody and supervision with a maximum of four years in custody and three years under community supervision. If he is sentenced as an adult, the mandatory sentence under the Criminal Code is life imprisonment. The period of parole ineligibility for a seventeen-year-old convicted of second degree murder is seven years.[^1]
[8] If sentenced as an adult, J.D.'s presentence custody is automatically considered on a one-to-one basis towards the parole ineligibility period. J.D. has served 25 months of pre-sentence custody and, if sentenced as an adult, would be eligible for parole in four years and 11 months. If J.D. is sentenced as a youth, I must consider the presentence custody, but it does not necessarily reduce the custodial period of the sentence.
[9] Section 72(1) of the YCJA provides that for a Crown application for an adult sentence to succeed, the court must be satisfied: (1) that the Crown has rebutted the presumption of diminished moral blameworthiness; and, (2) that the Crown has demonstrated that a youth sentence would not be sufficient to hold the young person accountable for his criminal conduct.
[10] To satisfy the first prong of the test the Crown must show that at the time of the murder, J.D. "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".[^2]
[11] To satisfy the second prong of the test – the accountability prong – the Crown must show that a youth sentence, imposed in accordance with the principles in the YCJA, would not be sufficient to hold J.D. accountable. The concept of accountability is equivalent to retribution.[^3]
[12] Similar factors are considered in determining both prongs of the test. However, each of the two prongs must be analyzed separately.[^4]
[13] Within that legal framework, the issues to be determined in this case are:
Has the Crown overcome the presumption of diminished moral blameworthiness?
Has the Crown shown that a youth sentence would not be sufficient to hold J.D. accountable for this murder? And,
If I find that the Crown has not met the test for the imposition of an adult sentence, what is the appropriate sentence to be imposed under the YCJA, taking into account the time that J.D. has already spent in custody?
[14] In these reasons I will set out the circumstances of the offences and the circumstances of J.D. before turning to my analysis of these issues.
Circumstances of the Offence
[15] The circumstances of the shootings are set out in the Agreed Statement of Facts as follows:
The first shooting occurred at approximately 6:25 p.m. in the area of 380 Driftwood Avenue, in Toronto. Video surveillance captured from this incident shows two males drive up on the main road of Driftwood Avenue and exit a Toyota Corolla. Both males were armed with firearms. Both shooters fired several shots and then ran back into the car. J.D. is the second of the two shooters who appear in this video. No one was injured in this incident.
The second shooting occurred at approximately 7:30 p.m. at a townhouse complex in another area of the city. The victim was observed walking in the townhouse complex toward a unit. The same Toyota Corolla is observed on video driving very slowly through the complex, following the path of the victim. The car then stops, and a single male hangs out of the rear passenger side window and fires several rounds of shots. 27 muzzle flashes are observed. Seven casings were located at the scene. The victim was shot both in his left buttocks as well as his upper legs and had to be transported to Sunnybrook Hospital for treatment for his injuries. It is alleged that J.D. was the male who fired these shots, injuring the victim.
The final shooting, the homicide, occurred at approximately 8:32 p.m. Mr. Anthony Martin and Mr. Taswrell Salmon were playing dominoes with other individuals in the courtyard of 89 Gosford Boulevard. Four males, at least three of whom were armed with guns, emerged and fired numerous gun shots in the direction of the courtyard, killing Mr. Anthony Martin and injuring Mr. Taswrell Salmon. Mr. Salmon was shot underneath his right knee and received treatment though the bullet remains in his leg to date. Mr. Martin was pronounced deceased at the scene. Seventeen shell casings were recovered. J.D. was one of the four shooters.
[16] After the shooting, J.D. and the others returned to the car and drove away. J.D. was captured on surveillance video about twenty minutes later with the four other males from the car in a residential building. The five males were met by a sixth male (T.C.) who gave clothing to J.D. and took shoes from J.D. J.D. changed his clothing in the hallway. The video surveillance shows shell casings or cartridges falling to the floor as J.D. changes his clothes. He appears to collect them using a bandanna. J.D. also appears to be handling a black object that he later appears to hand to T.C.
[17] The next day, the car used in the shootings was set on fire. On September 30, 2020, police executed search warrants on the car and on the residence of T.C. They located a pair of black jeans that were consistent with the jeans worn by J.D. on the evening of the shooting. J.D.'s DNA and particles of GSR were found on the jeans. In the car, the police located a spent casing that matched the casings located at 89 Gosford.
Victim Impact
[18] Victim impact statements were filed by seven members of Mr. Martin's family and by his close friend. The Victim Impact Statements describe the central role played by Mr. Martin in his family, extended family and in his community. He was a loving father, brother, son and friend. He worked hard and supported his family. He was generous, reliable, fun-loving and kind. Anthony Martin's senseless murder has devastated those close to him. His family has lost the financial and emotional support that Mr. Martin offered. His community has lost a role model and mentor.
[19] I have also considered the Victim Impact Statement of Taswrell Salmon. Mr. Salmon's impact statement describes the impact of the loss of Mr. Martin – a friend and role model. It also describes the pain that he continues to endure from the bullet lodged in his leg. This has prevented him from working and caused him to give up a career in track. In addition, after the shooting, Mr. Salmon was treated as a criminal and strip-searched before receiving medical attention. This conduct by law enforcement and medical personnel added to the trauma suffered by Mr. Salmon. Mr. Salmon has suffered physically, mentally and emotionally.
Circumstances of J.D.
Family History and Background
[20] J.D.'s background and circumstances are set out in considerable detail in the reports filed on sentencing.
[21] J.D. was born in Toronto. He is a Black youth who has lived in the Jane and Finch area his whole life. His mother gave birth to J.D. when she was a teenager. His mother has eight children and is currently expecting another child. J.D. was raised mostly by his mother but also spent time being cared for by his grandmothers and his great-grandmother. In grade 8, J.D. lived briefly with one of his grandmothers in Richmond Hill.
[22] J.D.'s maternal grandmother, A.T., reported that she was involved in crime and gangs for over 25 years. She has successfully rehabilitated herself and, since 2010, has attempted to help youth in her community.
[23] J.D.'s mother, A.C., had her first child at age 13 and then had J.D. when she was 16 years old and J.D.'s father was 18 years old. A.C., who was raised by A.T. during the time that A.T. was involved in criminality, writes that she feels that she failed J.D. because she did not know how to parent him. She writes that she was not "raised in a normal environment".
[24] J.D. did not have a relationship with his father until he was 12 or 13 years old because J.D.'s father was in custody from the time that J.D. was four years old until he was 11 years old. During this time, J.D. was told that his father was in Jamaica, but J.D. realized at some point that his father was, in fact, in jail.
[25] After his father was released from custody, J.D. moved out to Alberta to live with his father. Unfortunately, because of his father's addiction issues and conflicts with the law, J.D. had to move back to Toronto after about six months.
[26] J.D.'s mother had partners as J.D. was growing up, but none were father figures to J.D. When J.D. was around 11 to13 years old his mother had a partner who was physically abusive to J.D.
[27] J.D. told Dr. Grimbos that, as a child, he looked up to older males in his neighbourhood. These males were involved in criminality. He had little supervision and spent considerable time outside his home.
Cognitive and Academic Issues
[28] J.D. attended three different elementary schools. He received support through an Individual Education Plan for behavioural concerns and attention issues. He participated in psycho-educational assessments in Grades 1 and 7. There were also social work referrals through elementary school. J.D. was suspended 19 times for a range of reasons including fighting, profane language and opposition to authority. J.D. attended a special program for high school called "Promoting Education and Community Health", a community-based program in the Jane- Finch area for at-risk youth. He did not finish high school in the community.
[29] The testing conducted for this sentencing shows cognitive test results well below average for his age. Dr. Grimbos observed that fatigue and current medications may have affected the testing. J.D. was diagnosed with a Learning Disability and with Attention-Deficit/Hyperactivity Disorder ("ADHD"), both of which have contributed to his challenges in school.
[30] Medication was recommended for J.D. while he was in the community, but his parents did not want him to take the medication. He is currently taking various medications in custody, including medications typically used to treat or manage symptoms associated with ADHD.
[31] J.D. has recently completed high school while in custody at the Arrell Youth Centre. Dr. Grimbos writes that J.D. accomplished the completion of high school with a lot of effort on his part and with the benefit of a highly structured school program. Extensive support and accommodation would be required for J.D. to pursue post-secondary education.
Mental Health
[32] J.D. was diagnosed as meeting the criteria for Post-traumatic Stress Disorder ("PTSD"), Persistent Depressive Disorder and Adjustment Disorder with anxiety.
[33] J.D. has experienced many traumatic events in his life. He has witnessed people getting hurt and dying. The first incident occurred when J.D. was about two years old. Two men who had been shot entered J.D.'s grandmother's home and collapsed. J.D. is reported to have stopped speaking for some time after witnessing this incident. At age 10, J.D. witnessed his friend's brother in a body bag. J.D. has lost friends to gun violence. There was significant violence in the neighbourhood where J.D. was raised.
[34] J.D. has symptoms of PTSD including avoidance, social isolation, loss of interest in hobbies, numb feelings, hypervigilance, trouble sleeping, moodiness, anger and difficulty concentrating. He reported feeling desensitized and indifferent.
[35] J.D.'s depressive disorder began at around age 13. The s. 34 report links his current chronic depression to trauma, loss, grief and guilt. He reported feeling fatigued and hopeless. He felt suicidal at one point recently. He currently takes medication to treat his symptoms of depression and has been working with a social worker to deal with his depressive thoughts.
[36] J.D. also meets the criteria for Adjustment Disorder with anxiety. This is also linked to PTSD and stress. J.D. experiences restlessness, insomnia, paranoia, social fears and obsessive-compulsive behaviours. The s. 34 report recommends that J.D. receive support in developing coping strategies for his anxiety.
History of Substance Use
[37] J.D. first used marijuana at age 13 and has used it regularly since then. He began using marijuana to deal with his feelings of depression. J.D. began using Percocet at age 15. He used Percocet daily. At the same time, he began using Lean (a codeine-based drink) and MDMA. At around this time, J.D. also started to drink alcohol regularly and to excess.
[38] Dr. Grimbos diagnosed J.D. with Cannabis use disorder, severe; Opioid use disorder, severe, in sustained remission in a controlled environment; and Alcohol use disorder, severe, in sustained remission in a controlled environment.
[39] Dr. Grimbos opined that J.D.'s substance use was likely a means to cope with his mental health issues.
Anger, Aggression and Oppositionality
[40] Anger, aggression and oppositionality were issues for J.D. from a young age. His family reported angry incidents at home when he was young. His academic records also disclose behavioural issues related to anger.
[41] J.D. has had a history of aggressive incidents while in custody since November 30, 2020. During his first two months in custody at the Roy McMurtry Youth Centre ("RMYC"), J.D. was involved in 12 incidents of aggressive conduct including assaults and threatening. He was aggressive and defiant with staff. Restraints were required to control J.D. in incidents at RMYC because J.D. was not open to being redirected when angry. J.D. admitted in the s. 34 assessment, that he was using substances during his initial time in custody and that he experienced withdrawal during this time period.
[42] The incidents of aggression continued but with less frequency after the first two months in custody. There were 11 incidents in the next four and a half months at RMYC before J.D. was transferred to Ray of Hope Youth Centre in May of 2021. He remained at Ray of Hope for about two weeks and during that time, there were five incidents of aggression. He was then transferred to another facility for five days and was involved in an assault on a staff member.
[43] At the beginning of June 2021, J.D. was transferred to Arrell Youth Centre. His conduct since his transfer to Arrell has improved consistently. He was involved in an assault on a staff member shortly after his arrival in June of 2021 but had no further incidents of aggression until two confrontations with another youth in April of 2022 and an incident in May of 2022 when he pushed a staff member. Since these incidents, J.D. has not been involved in acts of physical aggression. In the April incidents with the other youth, J.D. was fairly quickly redirected by staff and left the confrontation. Unlike incidents early in his detention, J.D. has had more success in controlling his reactions and emotions.
[44] Although he previously was diagnosed as having Oppositional Defiant Disorder, he no longer meets the criteria for that diagnosis.
Personality, Treatability and Risk
[45] J.D. previously met the criteria for Conduct Disorder because of his criminal activities and aggression. The s. 34 report notes several types of anti-social behaviours in J.D.'s past. However, Dr. Grimbos also observed that J.D. was remorseful and felt guilty, regretful, and ashamed of his actions in committing the present offences. J.D.'s letter to the court demonstrates insight into his actions and their impact on the victims and I accept that J.D. is genuinely remorseful for his actions.
[46] Testing showed that J.D. is willing to participate in treatment and committed to change. To continue to make gains, J.D. requires ongoing clinical and educational or vocational services.
[47] Risk assessment testing put J.D.'s risk of violent reoffending at moderate. The report notes that J.D.'s current living situation at the Arrell Youth Centre addresses J.D.'s risk and clinical needs. Any changes to his living situation and available programming may impact on the risk assessment.
[48] With that background I will now address the issues that must be determined in this case.
Analysis
- Has the Crown overcome the presumption of diminished moral blameworthiness?
[49] The Supreme Court of Canada, in R. v. B.(D.),[^5] held that the presumption of reduced moral blameworthiness is founded on the premise that a young person has "heightened vulnerability, less maturity and a reduced capacity for moral judgment".
[50] In R. v. W.(M.),[^6] the Ontario Court of Appeal explained that, "In order to rebut the presumption the Crown must satisfy the court that, at the time of the offence, the evidence supports a finding 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."
[51] The factors to be considered in determining whether the Crown has overcome the presumption of diminished moral blameworthiness include the seriousness and circumstances of the offences and the age, maturity and background of the young person.[^7]
[52] Relevant factors related to the circumstances of the offence include whether the offence was planned, the motive for the offence, the role played by the young person, whether the young person made a choice to be involved in the offence and steps taken to follow through with or cover-up the offence. The circumstances of the offence must be assessed to determine whether the actions of the young person are indicative of impulsivity, bravado, or invincibility and whether they demonstrate critical thinking and adult-like judgment[^8].
[53] Relevant factors related to the circumstances of the young person, identified in R. v. Chol[^9] and other appellate court decisions, include the age, record, background and antecedents of the young person, the young person's vulnerability to influence by others, whether the young person was living like an adult at the time of the offence and any cognitive limitations or emotional or mental health issues. The Court in Chol cautioned, however, that cognitive limitations or emotional or mental health concerns should not overwhelm the analysis because the presumption is founded on reduced moral culpability as a result of youthfulness.
[54] The focus must be on the "age, maturity, character (including sophistication, intelligence and capacity for moral reasoning), background, and previous record of the young person."[^10] Cognitive limitations and mental health concerns may, however, inform the inquiry into the sophistication, intelligence and capacity for moral reasoning.
[55] The shootings in this case occurred over a three-hour time span in three different locations. J.D. attended those locations armed with a gun and clearly had an ample supply of ammunition. He accessed the locations in a car that was later burned. There had to be a level of planning and premeditation by at least one participant in the shootings. Even if J.D. was not the person who planned the shootings, he had to be aware of the nature of the activity by the end of the first shooting at 6:25 p.m. He remained a part of the plan for the next several hours.
[56] After the offences were complete, J.D. took several steps to change and dispose of his clothes and to avoid detection.
[57] J.D. was an active participant in each of the three shootings. The level of participation by J.D. is inconsistent with J.D. being an unwilling or reluctant participant. I reach this conclusion after closely examining the video evidence of the shootings. J.D. was one of the two shooters in the first shooting, having exited the car and fired his gun. At the second shooting, J.D. leaned out of the car and shot at the person walking in the area. Even after the car began moving to escape the scene, J.D. continued to shoot. This conduct is simply not consistent with someone who did not want to be part of the attack or who did not want to harm anyone. J.D. was present and an active participant in the final shooting that killed Mr. Martin and wounded Mr. Salmon.
[58] Although J.D. was an active and apparently willing participant in the shootings, I cannot conclude that he was a leader or a planner. His conduct is equally consistent with someone who was recruited to participate and followed the direction of others.
[59] In the s. 34 assessment, J.D. reported that he was pressured into participating in the shootings by older criminal peers and that he consumed a combination of marijuana, alcohol and Percocet before the offences. Although J.D. regularly consumed substances, he reported that he consumed more than usual the night of the offences. I accept that J.D. was somewhat intoxicated at the time of the offences but that he was aware of his actions and their potential consequences and chose to participate.
[60] The three shootings in this case, culminating in the murder of Mr. Martin and wounding of Mr. Salmon, involved random attacks on residents of particular neighbourhoods. The evidence before me discloses J.D.'s involvement in a gang at the time of the offences and that the motive for the offences was gang-related.
[61] J.D. was 17 years old at the time of the offences. He was three and a half months from his eighteenth birthday. He had no prior findings of guilt. J.D. had always lived with a parent or guardian.
[62] I have concluded that J.D. was vulnerable to the influence of others at the time of these offences. I reach this conclusion not only on the basis of J.D.'s self-report to the s. 34 assessor. There is also compelling evidence of cognitive limitations, addictions and mental health issues in J.D.'s history. J.D. lacked a father, or father figure, and he was inadequately parented by his mother who was a teenaged single mother when J.D. was born. J.D. lived in the Jane and Finch neighbourhood where he came under the influence of older peers.
[63] According to the psychological evidence before me, J.D. even today, as a 19-year-old, is significantly cognitively compromised. His verbal and non-verbal reasoning abilities are well below expectations for his age. His ADHD symptomatology contributed to his conduct in committing the offences. Those symptoms include impulsivity, limited decision-making skills and risk-taking behaviours.
[64] Considering all of the circumstances, I cannot conclude that J.D.'s actions in participating in the offences exhibited critical thinking or adult-like judgment. J.D.'s unstable upbringing and cognitive limitations made him vulnerable to the influence of older peers who drew him into gang activity. J.D.'s mental health challenges and addictions made him more vulnerable to direction by older peers. While I find that he made the choice to participate in the offences and followed the directions of the others willingly, I find that his actions were not indicative of sophisticated, independent or mature thinking.
[65] The conduct of the young person after being charged is also relevant to the determination of whether the Crown has rebutted the presumption of diminished moral culpability. Taking responsibility and demonstrating remorse are important factors in this assessment. Personal growth after the offence (or the lack thereof) may also be significant in determining this issue.[^11]
[66] J.D.'s conduct initially on entering custody was extremely concerning. The incidents of anger and aggression were severe and frequent. I have considered that at the time of the most severe issues, J.D. was both using and withdrawing from substances including opioids. It also appeared from the incidents reported in his first eight months in custody that he remained part of the gang culture in which he had been entrenched at the time of the offences.
[67] In the last year, J.D. has had a period of relative stability. He has had only four incidents of physical aggression since June of 2021 and none in the last seven and a half months. His emotional self-regulation has improved with counselling and prescribed medication. His drug-seeking conduct has mostly ceased although there is some indication that cannabis use continues. He is committed to treatment and change. His family has noticed a clear change in his conduct and maturity. The reports from Arrell Youth Centre confirm that J.D. has completed programming, engaged in counselling and has gotten along well at the facility recently.
[68] J.D. has expressed remorse and taken responsibility for his actions.
[69] In R. v. W.(M.)., Epstein J.A. described the circumstances of one of the appellants as a young person "who resided in a community of disadvantaged youth and was influenced by a peer group that condoned pro-criminal activities and devalued pro-social conduct".[^12] The young person in W.(M.) showed exemplary behaviour in custody. He furthered his education and demonstrated leadership. Epstein J.A. observed in that case: "The contrast between TF at the time of the offence and TF at the time he was sentenced demonstrates two things. First, his evolving maturity while in the provincial system highlights the lesser degree of TF's maturity in 2010 when Tyrone was murdered. Second, TF has demonstrated that he is motivated to learn, is open and amenable to treatment, and is capable of developing leadership skills when placed in an environment with customized programming and well-managed support."[^13] Epstein J.A. concluded in that case that the Crown had not overcome the presumption of diminished moral blameworthiness.
[70] J.D.'s conduct in custody cannot be described as exemplary. However, in the last year, J.D. has demonstrated that he is motivated to learn and to change. He has applied himself to school. He has engaged in counselling. He has been compliant with prescribed medication. Although he has had four incidents of anger and aggression, J.D.'s conduct over the last year is in marked contrast to his conduct at the time of the offence and immediately following his arrest and detention. His progress over this past year demonstrates that he has matured. It also supports the inference that J.D. lacked maturity at the time of the offence.
[71] J.D. was an active participant in a series of serious offences. His conduct was consistent with the characterization in the s. 34 report of a youth who struggled with addiction, depression and cognitive limitations and who turned to older criminal peers because he lacked support and structure at home. His capacity for critical thinking and moral reasoning was not that of an adult.
[72] I have therefore concluded that the presumption of diminished moral blameworthiness has not been rebutted and that J.D. must be sentenced as a youth.
- Has the Crown shown that a youth sentence would be insufficient to hold J.D. accountable for this murder?
[73] Given my conclusion with respect to the presumption, it is not necessary to address the issue of accountability. However, even if I am wrong in my conclusion with respect to the presumption, I would have found that the Crown had not shown that a youth sentence, imposed in accordance with the principles set out in the YCJA, would be insufficient to hold J.D. accountable for the murder.
[74] The fundamental purpose of a youth sentence is to hold a young person accountable by imposing sanctions that have meaningful consequences for the young person and that promote his rehabilitation and reintegration into society. (s. 38(1) YCJA)
[75] Accountability in the youth context is the equivalent to retribution in the adult context. Retribution represents a measured determination of the appropriate sanction that reflects the moral culpability of the offender and the gravity of the conduct but incorporates the principle of restraint.[^14]
In R. v. Ferriman,[^15] McCombs J. said that for a sentence to hold a young person accountable it must achieve two objectives: It must be long enough to reflect the seriousness of the offence and the offender's role in it, and it also must be long enough to provide reasonable assurance of the offender's rehabilitation to the point where he can be safely reintegrated into society. If the Crown proves that a youth sentence would not be long enough to achieve these goals, then an adult sentence must be imposed.
[76] The gravity of the offences committed by J.D. is profound. J.D. intentionally took the life of Mr. Martin and recklessly endangered the lives of others. The consequential harm was devastating and far-reaching. Mr. Martin lost his life; Mr. Martin's family lost their loved one; Mr. Salmon's life has been forever altered; and, the community in which the offences occurred has been impacted. The s. 34 Report before me notes the traumatic effect of gun violence on J.D.'s emotional and mental well-being. J.D.'s actions have now traumatized many others.
[77] A just and appropriate sentence must reflect the gravity of the offences but it must also take into account the moral culpability of the young person and his background, age and character. J.D. had no record before these offences. His involvement with older criminal peers and his substance abuse played a central role in his conduct. His risk of reoffence is assessed as moderate. This is his first significant period of time in a structured and supportive setting and he has demonstrated improvement in such a setting.
[78] While the gravity of the offences weighs in favour of the conclusion that a youth sentence would be insufficient to achieve accountability, the circumstances and background of J.D. weigh in favour of the sufficiency of a youth sentence.
[79] The period of custody that is available for J.D. if sentenced as a youth is four years, followed by three years of supervision and support.
[80] With the 25 months already served by J.D., and depending on the consideration for his time in custody, if sentenced as a youth he could serve over six years before being released with community supervision.
[81] He will be subject to supervision for three further years after release from custody. This period of supervision will address public safety concerns and will also facilitate J.D.'s rehabilitation and reintegration into society. The programming available as part of the community supervision portion of a youth sentence is designed to meet the identified issues facing J.D.
[82] The onus is on the Crown to show that a youth sentence would be insufficient. In all of the circumstances, I am not satisfied that a youth sentence is insufficient to hold J.D. accountable.
- What is the appropriate sentence to be imposed under the YCJA, taking into account the time that J.D. has already spent in custody?
[83] Having concluded that the Crown has not overcome the presumption of diminished moral blameworthiness or shown that a youth sentence would be insufficient to hold J.D. accountable, I will sentence J.D. as a youth. I must now consider the amount of credit, if any, to be given for the time that J.D. has spent in presentence custody.
[84] I must consider pre-sentence custody in sentencing a young person, but the treatment of the pre-sentence custody is discretionary.[^16] The Court of Appeal for Ontario has held that "a sentencing judge's discretion includes the ability to award no credit for pre-sentence custody against a youth sentence, particularly in the context of an application made by the Crown to sentence a youth as an adult."[^17]
[85] The sentence that I impose must be one that holds J.D. accountable. The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender. It must be the least restrictive sentence capable of achieving accountability and the most likely to rehabilitate J.D., reintegrate him into society and promote in him a sense of responsibility. Subject to proportionality, the sentence may serve the objectives of specific deterrence and denunciation.
[86] In this case, I have concluded that the maximum youth sentence must be imposed. J.D. has shown steady progress while he has been detained at the Arrell Youth Centre. That progress is recent and incremental. J.D.'s behavioural issues have only recently improved. J.D.'s addiction issues are serious and long-standing. His insight into the role of substance abuse in his offending behaviour is developing but limited. He has stopped using opioids but has continued to seek cannabis. J.D.'s risk for future violence has been reduced by the supports and structure of custody but J.D. requires the benefit of that structure and support for four years to address his needs and risks. This length of sentence is also required to properly reflect the seriousness of his offences and the harm that he caused.
[87] I am cognizant of the fact that while I am imposing a youth sentence, this does not mean that J.D. will serve this sentence in the Arrell Youth Centre or in any other youth facility. J.D. will soon turn twenty. Pursuant to s.93(1) of the YCJA, he will be transferred to a provincial correctional facility unless the provincial director orders that he continue to serve the sentence in a youth facility. It will be clear from these reasons that my view is that it would be in the best interests of J.D.'s continued rehabilitation and reintegration that he remain in the Arrell Youth Centre. I recognize however that the Provincial Director must consider other factors in making the placement determination. The interests of the other youth in the facility are no doubt central to that determination. J.D. must clearly understand that it is his conduct past, present and future that will determine where he serves this sentence. Any misconduct, failure to engage in programming or negative impact on other younger peers will have consequences for J.D.
Conclusion
[88] On the charge of second degree murder, I therefore impose a youth sentence of seven years of custody and supervision pursuant to s. 42(2)(q)(ii) of the YCJA.
[89] Four years of the seven-year sentence are to be spent in secure custody. The remaining three years are to be served under conditional supervision in the community.
[90] On the charge of aggravated assault, the maximum sentence under the YCJA is a custody and supervision order of two years with one year in custody and one year under supervision in the community. That is the sentence that I impose. That sentence is to be served concurrently with the sentence for the murder.
[91] There will be an order that J.D. have no contact with Taswrell Salmon or any member of the family of Anthony Martin while in custody and while under supervision in the community.
[92] There will also be an order pursuant to section 487.051(1) of the Criminal Code, authorizing the taking of bodily substances for the purpose of DNA analysis.
[93] There will be a further order pursuant to section 42(2)(j) and section 51(1) of the Youth Criminal Justice Act prohibiting J.D. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for life. The reasons for this order are that there was an illegal firearm used in these offences and the order is necessary to maintain public safety.
[94] Pursuant to s.105(1) of the YCJA, J.D. must be brought before the youth court at least one month before the expiry of the custodial portion of his sentence to set the conditions of his conditional supervision.
[95] I also make an order releasing the s.34 report to J.D.'s probation officer Melissa DeSouza and to appropriate service providers working with J.D.
Forestell J.
Released: December 30, 2022
COURT FILE NO.: YC-22-80000001-0000
DATE: 20221230
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
J.D., A YOUNG PERSON
REASONS FOR SENTENCE
Forestell J.
Released: December 30, 2022
[^1]: Section 745.1(c) of the Criminal Code, R.S.C., 1985, c. C-46 [^2]: R. v. W.(M.), 2017 ONCA 22, at para. 98 [^3]: R. v. O.(A.), 2007 ONCA 144, at para. 46 [^4]: W.(M.), supra, at paras. 105-107 [^5]: 2008 SCC 25, at para. 41 [^6]: 2017 ONCA 22, at para. 98 [^7]: W.(M.), 2017 ONCA 22, at paras. 105-107 [^8]: R. v. Chol, 2018 BCCA 179, at para. 61 [^9]: Chol, supra, at para. 61 [^10]: W.(M.), at para. 105 [^11]: Chol, supra, at para. 61 [^12]: W.(M.), at para. 120 [^13]: W.(M.), at para. 130 [^14]: R. v. M. (C.A.) (1996), 1996 (SCC), 46 C.R. (4th) 269, at para. 80 [^15]: [2006] O.J. No. 3950, at para. 38 [^16]: R. v. S. (D.) (2008), 93 O.R. (3d) 211, [2008] O.J. No. 4231, 2008 ONCA 740, at para. 26; R. v. W. (D.), [2008] O.J. No. 1356, 2008 ONCA 268, at para. 3; R. v. B.(M.) 2016 ONCA 760, at para. 9 [^17]: B.(M.), at para. 10```