Court File and Parties
COURT FILE NO.: CJ-10099 DATE: 20230404 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. PETER BOUCTSIS
BEFORE: Justice D.A. Broad
COUNSEL: Vlatko Karadzic and Alyssa Bain, for the Crown Steven Stauffer, Steven Safieh and Kate Zadorozhnya, for the Defendant
HEARD: May 18, 19, 20, September 6, 7, 8, 9 2022, February 6 and 7, 2023
Reasons for Sentence
(Orally)
Background
1On December 22, 2021, the defendant Peter Bouctsis was convicted following a judge-alone trial of second-degree murder of Bradley Pogue. A lengthy sentencing hearing comprising 9 days commenced on May 18, 2022 with evidence led by both the Crown and the defence, and concluded with final submissions on February 6 and 7, 2023.
2At the time of the commission of the offence on November 19, 2018, Peter Bouctsis was 17 years and 5 months old. He was tried as a youth and has been incarcerated primarily at a youth facility, Ray of Hope, since his arrest on November 20, 2018. He has served 1,596 days or 4 years, 4 months and 16 days in pre-sentence custody.
3The Crown brought an application pursuant to s. 64(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”) for an order that Peter Bouctsis is liable to an adult sentence. The question of whether Peter Bouctsis should receive a “youth sentence” or an “adult sentence” was the main issue on the sentencing hearing.
4If a youth sentence is found to be appropriate, subparagraph 42(2)(q) of the YCJA provides for a maximum sentence of seven years, comprised of a maximum four-year period in custody with the remainder to be served in the community under conditional supervision. Credit for pre-sentence custody is within the discretion of the sentencing judge.
5If an adult sentence is found to be appropriate, s. 745.1(c) of the Criminal Code, R.S.C. 1985, c. C-46 provides for a mandatory minimum sentence of life imprisonment with parole eligibility after seven years, given that Peter Bouctsis was 17 years of age at the time of the offence. As provided in s. 746(a) of the Criminal Code, the seven-year period of parole ineligibility is counted from the date that Peter Bouctsis was arrested and taken into custody in respect of the offence.
6The Crown submits that Peter Bouctsis should be sentenced as an adult, with the result that he would be sentenced to life imprisonment with parole eligibility seven years after his arrest on November 20, 2025. He would remain subject to community supervision for life.
7The defence argues for a youth sentence and submits that no credit should be given for Peter Bouctsis’s pre-sentence custody. In the result, Peter Bouctsis would serve a custodial term of four years to April 4, 2027 and would thereafter be subject to community supervision until April 4, 2030.
8It will be seen that, if sentenced as an adult, Peter Bouctsis would be eligible for parole approximately one year and four and one-half months earlier than he would be released from custody subject to community supervision under a youth sentence. The important difference between a youth and an adult sentence in this case relates to the question of community supervision. Under a youth sentence, Peter Bouctsis would cease to be subject to any community supervision on April 4, 2030, whereas under an adult sentence, Peter Bouctsis would remain subject to community supervision for life under the control of the National Parole Board following his release on parole.
9A Pre-Sentence Report (“PSR”) was prepared pursuant to s. 40 of the YCJA on January 28, 2022.
10The sentencing hearing was delayed in order to permit a pre-sentence psychiatric assessment of Peter Bouctsis, requested by the defence, to be undertaken by Dr. Lisa Ramshaw. Dr. Ramshaw was assisted by a psychologist, Dr. Wright, who carried out a number of psychological tests on Peter Bouctsis Dr. Ramshaw’s report was dated August 19, 2022. The hearing was adjourned to February 6, 2023 for Dr. Ramshaw and Dr. Wright to give evidence on behalf of the defence and to be cross-examined by counsel for the Crown.
11In a scheduling case conference on January 17, 2023, defence counsel advised that they would not be calling Dr. Ramshaw or Dr. Wright to testify and would not be relying upon their reports. Defence counsel confirmed this on the record upon resumption of the sentencing hearing on February 6, 2023. During the scheduling conference, defence counsel also advised that they would not be seeking an order for Intensive Rehabilitative Custody and Supervision (“IRCS”). The Order for preparation of a Suitability Assessment for IRCS previously made by the court at the request of the defence was therefore withdrawn.
12On the return of the hearing on February 6, 2023, counsel for the Crown confirmed on the record that they similarly would not seek to rely upon the reports of Dr. Ramshaw or Dr. Wright. In the result, neither Dr. Ramshaw nor Dr. Wright testified at the hearing.
Facts relating to the commission of the offence
13The facts related to the offence were set out in my written reasons dated December 22 2021 and reported at 2021 ONSC 8443. It is not necessary to repeat the facts in their entirety. The following is a summary of facts and findings pertinent to sentencing derived from my written reasons.
14On November 19, 2018, through a cell phone exchange, Adam De Gannes (“De Gannes”) and Bradley Pogue (“Bradley”) arranged to meet at Brierdale Plaza in the City of Cambridge later that evening to transact a sale by Bradley of approximately one pound of marijuana to De Gannes for $1,700.
15After Bradley had arranged the meeting, his brother Codi Pogue (“Codi”) offered to accompany him to Brierdale Plaza to meet De Gannes.
16Upon their arrival at the plaza in the early evening of November 19, 2018, Bradley and Codi encountered De Gannes and another person, later identified as Peter Bouctsis, standing near a convenience store with hoods over their heads.
17Neither Bradley nor Codi were acquainted with Peter Bouctsis, and Bradley had not been told by De Gannes that he would be accompanied by any other person.
18The meeting was part of a plan by Peter Bouctsis and De Gannes to carry out a drug rip-off of Bradley whereby De Gannes would arrange to meet Bradley, ostensibly to pay $1,700 in exchange for one pound of marijuana, and the marijuana would be taken from Bradley without payment.
19Peter Bouctsis attended the arranged meeting armed with a concealed and loaded 9 mm handgun.
20Bradley was carrying a plastic bag containing marijuana.
21At Codi's suggestion, the four individuals entered the nearby Double Double Pizza store in the plaza. Bradley and Peter Bouctsis bickered about where to conduct the marijuana deal. Peter Bouctsis took a bundle of paper currency from his pocket and showed it to Bradley, however, Peter Bouctsis did not give any of the money to him. Peter Bouctsis suggested that they leave the restaurant.
22The four individuals left the pizza store in succession, walked to the side of the plaza and stood by a wall. Peter Bouctsis and Bradley stood facing each other. Codi stood beside Bradley.
23Bradley handed the bag of marijuana to Peter Bouctsis who turned the opposite way from Bradley and Codi to look in the bag. Bradley stated "it is all there buddy." Codi could not recall if Peter Bouctsis said anything in response.
24Peter Bouctsis turned back around to face Bradley and Codi, pointing a 9 mm handgun initially at Codi and then at Bradley. Peter Bouctsis stated to Bradley"what is worth more a pound of weed or your life?"
25Very shortly after Peter Bouctsis made this statement, Bradley moved toward Peter Bouctsis in a downward fashion while moving his arm crossways in an attempt to knock the handgun out of Peter Bouctsis's hand. Bradley's hand did not make contact with the gun or with PETER Bouctsis's hand.
26Immediately after Bradley moved towards him, Peter Bouctsis fired the handgun at Bradley twice in quick succession. One bullet hit Bradley in the head and the other hit him on the upper left buttock.
27Following a post-mortem examination, the examining forensic pathologist formed the opinion that Bradley's death was caused by a penetrating gunshot wound to his head. Death would have occurred within seconds to minutes of the shot to his head.
28The forensic pathologist was unable to offer an opinion on the order in which the two wounds were sustained.
29Immediately after the shooting, Peter Bouctsis and De Gannes each fled the scene.
30After fleeing, Peter Bouctsis contacted two associates requesting to be driven, along with De Gannes and another male, first to a residence in Cambridge and then to a motel in Cambridge where the group remained until the next morning. Peter Bouctsis and De Gannes were apprehended by police later that day.
[31] Peter Bouctsis was charged with three offences alleged to have taken place on November 19, 2018: Count One: second degree murder on the person of Bradley Pogue, contrary to s. 235(1) of the Criminal Code; Count Two: using a firearm while robbing Bradley Pogue, contrary to s. 344(1)(a) of the Criminal Code; Count Three: possessing a loaded, restricted firearm and not being the holder of an authorization or license under which he may possess the said firearm in that place, or a registration certificate for the firearm, contrary to s. 95(1)(a) of the Criminal Code.
32Prior to the trial, Peter Bouctsis pleaded guilty to counts two and three. The trial proceeded on with respect to the first count only, namely that he committed second degree murder of Bradley Pogue.
[33] The parties entered into an Agreed Statement of Facts at trial whereby Peter Bouctsis admitted to the following: (a) he possessed a loaded restricted firearm on November 19, 2018 without being the holder of a license under which he could possess such a firearm and without being the holder of a registration certificate for the firearm; (b) he knew the firearm was loaded when he possessed it; (c) he robbed Bradley Pogue of a pound of marijuana on November 19, 2018 while armed with that loaded restricted firearm; and (d) he acknowledged shooting Bradley Pogue thereby factually causing his death.
34The defence agreed that the sole issue for determination at trial was whether the Crown had proven beyond a reasonable doubt that Peter Bouctsis had at the relevant time the required specific intent to commit second degree murder of Bradley Pogue. The defence position was that the Crown had failed in that respect and that the correct result on the evidence was a finding that Peter Bouctsis committed the offence of unlawful manslaughter.
35Following a review of the evidence led at trial, I found that the Crown had satisfied its onus of proving that Peter Bouctsis had, at the time of the shooting, the intent to cause Bradley Pogue bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not and found him guilty of second degree murder.
Victim Impact Statement
36Bradley’s mother, Hayley Ann Schultz, read an eloquent and heartfelt victim impact statement describing the devastating impact Bradley’s death has had on her and her family, including the life-changing impact on Bradley’s young daughter who has been robbed of the opportunity to grow up with her father in her life. Ms. Shultz’s statement included the following poignant and insightful passage directed towards the offender Peter Bouctsis:
“My granddaughter’s innocence was robbed at the day her father was shot and killed by you. She will grow up having known this fact and having to eventually process that traumatic loss in her life. This will be a lifelong journey for her, as it is for all of us. Gun violence robs communities of their sense of safety. The ripple effect one incident has had on so many is astounding. It is not just my impact it is a collective impact caused by your actions.”
Facts Relating to the Offender
(a) Pre-Sentence Report
37As indicated previously, Peter Bouctsis was 17 years and five months old at the time of the commission of the offence. He is currently approximately 21 years and four months old.
38The PSR disclosed that Peter Bouctsis was the youngest of three siblings, with two older sisters. Both of his sisters testified in the sentencing hearing, as did each of his parents.
39Peter Bouctsis grew up in what was described by the author of the PSR as a “loving, supportive and very strong” family with both his parents being family- and friends-oriented. The family enjoyed each other’s company, going on outings, trips, eating meals with one another, maintaining extended family relationships and participating extensively in sports. Peter Bouctsis played hockey from five years of age to grade eight. His father was an acting coach on his teams. Peter Bouctsis also loved “BMX’ing,” “scootering,” snowboarding and swimming.
40At the age of 13, Peter Bouctsis began to befriend older students who were abusing substances. Some of them were involved with the criminal justice system. By age 14 and 15, Peter Bouctsis was using cannabis, alcohol, Xanax, and preferring drugs in the benzodiazepine family. Despite his family’s efforts, he continued on a destructive path. At age 15, he sustained a Xanax-induced seizure, ran away from home for a short duration, and was eventually directed with the assistance of his parents to a six-month residential treatment/therapy program offered by Ray of Hope from December 2016 to May 2017.
41In conjunction with Peter Bouctsis’s program at Ray of Hope, his parents also participated in an eight-week parent/family support program. Peter Bouctsis disclosed that he was not inclined to stop selling drugs, only to stop using substances. He followed this course for two months once released back into the community, however, he quickly succumbed to abusing substances.
42Between the ages of 15 and 17, when he was in grades 10 and 11 from 2016 to 2018, Peter Bouctsis’s relationships at home became more strained. His parents maintained a supportive approach, connecting with neurologists and therapists in an effort to assist Peter Bouctsis.
43Peter Bouctsis’s release back into his parent’s care was a short reprieve until he again involved himself with a negative lifestyle. For the most part, he attended school and acquired credits until he ran away from home in August 2018. His whereabouts were unknown until the events of November 2018 when he was arrested.
44The author of the PSR reported that following his arrest in November 2018, Peter Bouctsis’s initial stay at Ray of Hope was positive in his choices, actions and experiences. For the first half of his stay, Peter Bouctsis moved “upwards and downwards” on a roller coaster of challenges and successes. He was aloof and disengaged at times, he had several difficulties meeting program goals, and there were a number of incidents and contraband infractions. By March 2021, however, the author noted that Peter Bouctsis’s actions and decisions had become positive, with many encouraging reports from Ray of Hope personnel noting that he was engaged in various areas of the facility’s programs.
45Peter Bouctsis graduated from high school while at Ray of Hope. While in the facility, he acquired a college credit through Conestoga College and also acquired several certificates. He volunteered in various capacities including working with the facility chaplain to start a Bible study for other residents.
(b) Peter Bouctsis’s involvement in dealing in drugs and weapons
46Evidence led by the Crown, which was not seriously challenged by the defence, confirmed that in the years and months leading up to the murder of Bradley Pogue, Peter Bouctsis engaged in a lifestyle of involvement with guns, drugs and violence. He established himself in a criminal network of drug and weapons dealing.
47On or about June 10, 2018, Peter Bouctsis was charged in Toronto with multiple offences as part of a larger drug and weapons project of the Toronto Police Service entitled “Project Patton.” He was charged with unauthorized possession of a prohibited firearm, possession of a firearm knowing its possession is unauthorized, unauthorized possession of a loaded prohibited firearm, possessing a firearm obtained by crime, careless use of a firearm, knowingly occupying a motor vehicle containing a prohibited firearm, and possessing a schedule one substance for the purpose of trafficking. He was released on June 12, 2018 on a recognizance of bail with his mother and father as sureties, and subject to strict conditions. The conditions required him to reside with his parents as sureties at the family home and remain in the residence at all times except while at work or school and unless in the direct and continuous presence of one of his sureties.
48On August 25, 2018, Peter Bouctsis’s mother found a quantity of money in Peter Bouctsis’s room. When questioned, he told his parents that he owed money to a person. His father went with him purportedly to meet with the person to return the money. After his father dropped him off, Peter Bouctsis disappeared and fled. Peter Bouctsis’s father reported Peter Bouctsis’s disappearance to police and he was charged with failing to comply with a recognizance. A warrant for Peter Bouctsis’s arrest was issued by Waterloo Regional Police Service (“WRPS”) on September 12, 2018.
49Despite diligent efforts by Peter Bouctsis’s parents to locate him they were unable to do so until his arrest on November 20, 2018.
50Upon his arrest on November 20, 2018, Peter Bouctsis was found in possession of approximately 30 pills of clonazepam, 22 g of crack cocaine and 12 g of fentanyl, $1,955 in Canadian currency, a functioning digital scale and approximately 28 g of marijuana.
51Although the charges in Toronto had not been disposed of at the time of the murder, Peter Bouctsis has subsequently been convicted of those offences and sentenced as a youth.
52Just prior to his arrest, Peter Bouctsis destroyed a cell phone in his possession in an effort to thwart recovery of evidence by police.
53During the sentencing hearing, Peter Bouctsis admitted to having previously set up other individuals to be robbed by associates in a fashion that was similar to the plan he launched to rob Bradley Pogue. As evidenced through photographs and videos extracted from his operative cellphone seized by police, Peter Bouctsis was in possession of numerous firearms between August and November 2018. During this period, Peter Bouctsis arranged to procure firearms for other community members. He also recorded videos threatening members of the community.
54Digital communications extracted from Peter Bouctsis’s seized cellphone disclosed that Peter Bouctsis had developed a network of addicted adult members of the community who were dependent upon him for their supply of drugs, and from whom he procured shelter and transportation as he carried on his drug and weapons dealing enterprise. He acknowledged in testimony making between $8,000 to $10,000 per week dealing in drugs and weapons.
55Numerous photos and videos of Peter Bouctsis posing with, handling, operating and pointing weapons were extracted from his cellphone covering the period of August to November 2018.
(c) Crown evidence of Peter Bouctsis’s misconduct while in custody at Ray of Hope
56During his custodial stay at Ray of Hope, Peter Bouctsis acquired several misconduct occurrences including physical altercations, possession of contraband, drug use and drug trafficking within the institution. He was also found to have surreptitiously corresponded with two adult inmates incarcerated at Maplehurst Correctional Facility.
57On May 22, 2020, PETER BOUCTSIS was arrested and charged with assault in relation to an incident within Ray of Hope directed at a resident youth. On July 27, 2021, he was again arrested and charged with assault in relation to an incident within Ray of Hope directed at a different resident youth.
(d) Bribery charge against Peter Bouctsis on November 1, 2022
58A very concerning incident was brought to the court’s attention in reply evidence of the Crown upon resumption of the sentencing hearing on February 6, 2023.
[59] As disclosed in an Agreed Statement of Facts entered into by the Crown and Peter Bouctsis, the following facts were established: (a) on September 27, 2022, staff at Ray of Hope seized a contraband cellular phone from a young person detained at Ray of Hope secure custody; (b) a member of the WRPS Robbery Unit attended at Ray of Hope and seized the cellular phone, as they were investigating the young person for offences that had occurred in August 2022 when the young person was out of custody; (c) on September 28, 2022, Peter Bouctsis requested a meeting with the program manager Orlando Jackson, which was facilitated on that day via telephone from within the institution. Mr. Jackson put his phone on speaker so that youth worker Sarah Aiken could be witness to the conversation; (d) from subsequently speaking to Mr. Jackson and Ms. Aiken, who provided written statements, police learned the following: (i) Peter Bouctsis indicated that he had used the seized phone and that the information on the phone will incriminate him when he goes to court in the future; (ii) Peter Bouctsis indicated that he had used the phone to work on gun and drug deals and that if the information is retrieved, he will be sentenced as an adult in upcoming court proceedings; (iii) Peter Bouctsis indicated that if the court decided to sentence him to life in prison as an adult, he has plans to escape Ray of Hope because it is easy; (iv) Peter Bouctsis offered Mr. Jackson money for information regarding the police investigation into the seized phone or if there were any charges relating to his placement at Ray of Hope Secure; (v) Mr. Jackson indicated in his statement that he was unsure of the specific amount offered in exchange for that information as he “shut it down right away” and “ended the call.” Ms. Aiken indicated in her statement that Peter Bouctsis offered $3,000 in exchange for that information before Mr. Jackson “notified Peter Bouctsis that the comments were inappropriate and ended the conversation.” Peter Bouctsis denies offering any specific amount of money in exchange for the information; (vi) Peter Bouctsis was transferred to Roy McMurtry Youth Centre on September 28 2022 as a result of the incident. He was charged with bribery in relation to the incident on November 1, 2022; (vii) WRPS obtained a search warrant for the seized phone and the investigation into the contents of the phone is ongoing. A short report was prepared regarding any call and message logs from the phone. A review of the contents of the logs demonstrated that the phone was likely not within the institution for very long, having entered at some point between September 23 and 24, 2022; Peter Bouctsis does not appear to be the primary user or owner of the phone; and the only contents of the phone that the Crown would suggest can be attributed to Peter Bouctsis’s use of the phone were 5 outgoing text messages, 2 incoming text messages and 2 call logs, the only ones of note being the following text exchange on September 25, 2022: Outgoing: “Yo it’s b I’m putting that in the bank jus now n sending it.” Outgoing: “resend your Et.” Incoming: “[email address] and ok thank you broski and hey I just got a 3000 drone can carry things.”
60The content of the exchange of these texts suggests Peter Bouctsis’s continued involvement in the illicit drug trade from within Ray of Hope.
61This development is particularly concerning given Peter Bouctsis’ prior testimony in the sentencing hearing that he had turned a corner and renounced his previous criminal lifestyle involving drugs and guns. At the conclusion of his cross-examination on September 9, 2022, 16 days prior to his use of the cellphone on September 25, 2022, he had the following exchange with Crown counsel:
Peter Bouctsis: I was a young criminal. I lied. I was a liar; Crown: Right, but it’s your position that when you say you’ve turned a corner and yet now you’ve disavowed that prior lifestyle that you had, now you’re telling the truth, right? Peter Bouctsis: I am telling the truth.
Statutory Framework and Guiding Principles
[62] Section 72(1) of the YCJA establishes a two-prong test for determining when an adult sentence may be imposed on a young person. The section provides that the 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 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.
63Although the two prongs address related but distinct questions, and although similar factors are applicable to both, there is not a complete overlap. The court is required to undertake a separate analysis of each prong of the test. Not every factor relevant to an assessment of whether a youth sentence would hold a young person accountable is relevant to the question of whether the Crown has rebutted the presumption of diminished moral blameworthiness or culpability: see R. v. W. (M.), 2017 ONCA 22, 134 O.R. (3d) 1, at paras. 95, 106.
64The Crown bears the onus of showing that the presumption of diminished moral culpability has been rebutted and that a youth sentence would not be sufficient to hold the offender accountable for his or her criminal conduct: see W.(M.), at para. 93.
65The YCJA does not place a heavy burden on the Crown to establish that the requirements for an adult sentence have been met. The court must be satisfied that both prongs of the test are met. The issue is not cast in accordance with the concepts of the criminal standard of “proof beyond a reasonable doubt” or the civil standard of “on a balance of probabilities,” but rather, the question is whether the court is satisfied, after weighing and balancing all of the relevant considerations, that an adult sentence should be imposed: see R. v. O. (A.), 2007 ONCA 144, 84 O.R. (3d) 561, at paras. 32, 34, 38.
[66] Sentencing judges are required to consider the following categories of factors which are relevant to both prongs, as outlined in R. v. Ellacott, 2017 ONCA 681, at para. 18: (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.
67The presumption of diminished moral culpability is not rebutted simply by the seriousness of an offence, but it is a relevant consideration, along with the circumstances of an offender, in considering whether the presumption has been rebutted. The level of moral judgment or sophistication demonstrated in the planning and implementation of the offence are also relevant considerations, along with the young person’s role in carrying out the offence: see Ellacott, at para. 18; W.(M.), at para. 112.
68The presumption of diminished moral culpability recognizes that, because of their age, young persons generally have heightened vulnerability and reduced capacity for moral judgment when compared to adults. The focus of the first prong of the test must necessarily be on the issue of maturity: see W.(M.), at para. 97, 163.
69In order to rebut the presumption of diminished moral culpability, 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 or her”: see W.(M.), para. 98.
70Section 38(1) of the YCJA stipulates that accountability is achieved by imposing sanctions that have meaningful consequences and that promote the young person’s rehabilitation and reintegration into society.
71To hold a young person accountable, a sentence 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: see R. v. Ferriman, at para. 38; O.(A.), at para. 50.
72Meaningful consequences are not synonymous with rehabilitation and reintegration. Accountability in the YCJA context is equivalent to the adult sentencing principle of retribution. For a sentence to hold the young offender accountable in the sense of being meaningful, it must reflect, as does a retributive sentence, 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: see O.(A.), at paras. 45, 47.
First Prong – Has the Crown rebutted the presumption of diminished moral blameworthiness or culpability?
73The Crown’s position is that the presumption of diminished moral culpability in reference to Peter Bouctsis has been rebutted.
74Respecting the issue of the seriousness and circumstances of the offence, it is axiomatic that the offence of murder is one of the most serious offences within the Criminal Code. The Crown points out that the murder of Bradley occurred in the context of a planned robbery in which Peter Bouctsis played the lead role. Peter Bouctsis utilized the connection between one of his adult drug customers, De Gannes, and Bradley to arrange a supposed “transaction” with an unwitting marijuana dealer. The robbery was arranged and initiated by Peter Bouctsis in a manner designed to shield him from potential consequences, either through street justice or through the criminal justice system. There existed no trail of communications between Peter Bouctsis and Bradley. Communications were made through De Gannes, keeping Peter Bouctsis anonymous to an unwitting Bradley. Peter Bouctsis’s plan was to flee from the robbery without his identity being disclosed to the subject of the rip-off.
75Peter Bouctsis arrived at the arranged location of the planned robbery with a concealed and loaded 9 mm handgun. It was Peter Bouctsis who prompted Bradley to exit the well-lit pizza shop in favour of a darkened corner in a parking lot to conduct the “transaction” out of the view of any witnesses or surveillance video.
76As the party who took the primary role in the robbery, Peter Bouctsis’s actions were neither impulsive nor spontaneous. He determined how the robbery would be conducted, how to preserve his anonymity, how he would make his escape after the robbery, and how he would avoid detection. He arrived at the robbery wearing a hoodie in order to maintain his anonymity. He arranged for transportation to and from the location of the robbery. In the pizza shop, Peter Bouctsis showed Bradley a stash of money in furtherance of the subterfuge of a drug transaction and to entice him to move outside to the parking lot to conduct it.
77In the process of fleeing the scene following the shooting, Peter Bouctsis dropped a cell phone but returned to retrieve the phone before fleeing again, again demonstrating his efforts to evade detection. The Crown submitted that, upon review of Peter Bouctsis’s planning of the robbery, his conduct in carrying out the robbery and in shooting Bradley when he resisted, as well as his post-offence actions, clearly demonstrate that Peter Bouctsis had a level of maturity, moral sophistication, and capacity for independent thought of an adult.
78Defence counsel advised the court that he was placing most of his emphasis on the second prong of the test relating to the question of accountability. However, in reference to the seriousness and circumstances of the offence, defence counsel pointed out that the murder victim, Bradley, was an adult who was proposing to sell drugs to a minor. The defence submitted that, although Bradley attended the planned transaction expecting to meet De Gannes who was an adult, when Peter Bouctsis appeared with De Gannes and proposed to move outside to conduct the transaction himself, Bradley could have waited or could have advised De Gannes that he would deal only with him. The defence argued that Bradley was wilfully blind to Peter Bouctsis’s age and deliberately engaged in dangerous activity.
79The defence also submitted that Peter Bouctsis’s planning of the robbery and the way in which he attempted to execute it lacked sophistication. The defence acknowledged that there were elements of the plan which were sophisticated, such as the planning to get to the scene, involving De Gannes and planning the escape, but Peter Bouctsis was unable to contemplate all of the possible results of his dangerous behaviour. Peter Bouctsis planned no protection to avoid being apprehended, which the defence says goes to the immaturity of the act. The offence was committed rashly by Peter Bouctsis without any coherent thought as to how he was going to get away.
80I am unable to accept the defence submission that Bradley’s conduct in proposing to transact a drug deal with Peter Bouctsis who was a minor at the time is a factor bearing upon the first prong of the test relating to the presumption of diminished moral culpability of Peter Bouctsis I agree with Crown counsel’s reply submission that the sentencing process is the result of Peter Bouctsis having being found to have committed second degree murder of a human being, and that the court need not reflect on the background, antecedents or other aspects of the victim. As indicated previously, the focus is on Peter Bouctsis’s maturity.
81I am also unable to accept the defence submission that Peter Bouctsis’s conduct lacked sophistication because he demonstrated that he was unable to contemplate all of the possible results of his dangerous behaviour.
82At para. 163 of W.(M.), Epstein J.A. observed that because of their age, young people tend to act without foresight and may lack empathy for those who may be victims of the wrongful acts, with the result that young persons who act out of immaturity or impulsiveness should not be dealt with as if they were proceeding with the same degree of insight into their wrongdoing as adults.
83In my view, Peter Bouctsis was not without foresight in planning the robbery. He understood the need to conceal his identity from Bradley, he brought a loaded firearm to the robbery in order to deal with any resistance which might be put up by Bradley. The fact that Peter Bouctsis may not have planned an effective getaway does not equate to a lack of sophistication and maturity.
84Moreover, Peter Bouctsis did not act out of impulsiveness. As the sentencing judge observed in R. v. F.O., 2016 ONSC 7654, at para. 42, aff’d 2021 ONCA 417, a case involving a 17-year-old who attended a house party armed with a loaded firearm, and when he was ordered to leave by someone with a gun, pulled his gun and began shooting, Peter Bouctsis’s decision to draw his gun and shoot when Bradley resisted was likewise the “antithesis of spontaneity” or impulsiveness.
85Peter Bouctsis was not influenced by any adult to plan and execute the robbery. Indeed, the involved adult De Gannes was under Peter Bouctsis’s influence and control rather than the other way around.
86The defence took no issue with the evidence relied upon by the Crown on the first prong of the test relating to Peter Bouctsis’s age, maturity, and character (including sophistication, intelligence and capacity for moral reasoning), and background.
87At the time of the offence, Peter Bouctsis was seven months shy of his eighteenth birthday. There was no evidence that Peter Bouctsis suffered from any cognitive impairments or of any psychological diagnosis which may have impacted his decision-making on the night of November 19, 2018.
88Respecting his educational history, despite issues that presented themselves at various times, Peter Bouctsis was able to successfully complete each school grade through to June 2018. Indeed, following his arrest on June 10, 2018 for firearm and drug offences in Toronto, he was able to return to school, write and complete exams and finish out his grade 11 year prior to the end of that month.
89While residing with his parents under house arrest in the summer of 2018, Peter Bouctsis was accepted into a program to permit him to take college courses along with his grade 12 curriculum. He was required to complete an application and an interview and was accepted into the program commencing in September.
90In each of the summer of 2017 and the summer of 2018, prior to breaching his bail conditions by leaving his parents’ home, Peter Bouctsis was continuously employed. With his parents’ assistance, he obtained employment at a restaurant in Turkey Point in the summer of 2017 and at his father’s place of employment in the summer of 2018 while on house arrest. Peter Bouctsis’s parents received positive reports from both employers, which supports a finding of some maturity and capacity for independent judgment of an adult.
91The Crown submitted that, having engaged in the drug subculture for several years prior to November 2018, Peter Bouctsis had perfected the ability to live a duplicitous life. On the one hand, he lived with his family in Cambridge enjoying a lifestyle which was the picture of privilege and opportunity. Despite challenges related to drug use and questionable peer influences, Peter Bouctsis’s parents steadfastly supported him, setting him up with rehabilitation options, petitioning schools to ensure his education was uninterrupted, and moving him for the summer of 2017 to another community to separate him from negative influences and to allow for an employment opportunity. Even after his June 2018 arrest in Toronto, Peter Bouctsis’s parents continued to extend to Peter Bouctsis their unwavering support.
92Despite all of the opportunities and support afforded to him by his family, Peter Bouctsis repeatedly chose to forgo a pro-social life modelled by his parents and siblings, and returned time and again to a life of crime.
93Peter Bouctsis’s home environment and upbringing contrast sharply with that experienced by other young offenders referred to in the jurisprudence who come from disadvantaged communities and backgrounds, making them vulnerable to falling prey to criminal influences and ill-equipped to make mature decisions, being surrounded by a culture of violence and crime. Peter Bouctsis was raised in the opposite environment, having been afforded every opportunity of support, mentorship, advocacy, structure and discipline.
94During the sentencing hearing, Peter Bouctsis admitted to being very skilled at leading a double life and deceiving those closest to him. The Crown submits that it is his duplicitous actions in the face of clear privilege and opportunity that demonstrate Peter Bouctsis’s moral sophistication and capacity for independent thinking of an adult.
95The circumstances surrounding Peter Bouctsis’ arrest in Toronto on June 10, 2018, including being found in possession of a .45 calibre firearm, a magazine for the firearm loaded with seven rounds and 12 g of crack cocaine, together with 8 ounces of cocaine being found in the vehicle in which he was situated, demonstrate the very elevated nature of the offences for which he was arrested and released on bail. He had, through his sophistication and maturity, established connections with upper-level drug dealers and gun traffickers in Toronto, allowing him to obtain these products.
96The Crown submits that his arrest and subsequent release on bail afforded Peter Bouctsis with an opportunity to reflect on his decision-making within the safety and comfort of his family home. Despite the structure and strict supervision of his parents, he re-entered a world of crime.
97Peter Bouctsis’s persistence in disobeying the court order and the rules of his family provide evidence of his level of moral sophistication and capacity for independent judgment of an adult.
98The evidence led by the Crown of photos, videos, and text communications extracted from Peter Bouctsis’s cell phone paint a clear picture of Peter Bouctsis’s character when he committed the murder. He was regularly organizing drug deals, threatening drug purchasers for non-payment, attempting to broker firearm purchases, possessing numerous types of firearms and communicating with others to set up robberies.
99The Crown submits that Peter Bouctsis’s involvement in the drug dealing environment was not one to be characterized as at the lower end. He was an active and successful drug dealer acknowledging making between $8,000 and $10,000 per week. In his communications with addicted customers and other associates, he set a tone demanding respect.
100Peter Bouctsis admitted in his evidence in the sentencing hearing that he dealt drugs primarily to adults and used those adults to obtain homes for him to sleep while he used and dealt drugs as well as the use of vehicles. Rather than being influenced by adults, he acknowledged in his testimony that he took advantage of these addicted adults by selling them drugs.
Conclusion on the first prong
101On the basis of the evidence led by the Crown, and in the absence of any serious dispute by the defence except in reference to the defence submissions respecting the circumstances of the offence itself and the conduct of the victim, I am satisfied that the presumption of an absence of moral blameworthiness or culpability has been rebutted by the Crown. At the time of the offence, Peter Bouctsis was a morally sophisticated individual who was capable of independent judgment of an adult.
Second Prong – will a youth sentence not be of sufficient length to hold Peter Bouctsis accountable for his offending behaviour?
102The Crown submits that Peter Bouctsis presents with a high degree of moral culpability in the commission of the murder. His planning of the robbery was driven by greed and he attended the planned robbery with a loaded firearm. The shooting took place in a Cambridge neighbourhood just shortly after 8 PM on a Monday evening when pedestrian traffic may have been possible. Peter Bouctsis demonstrated reckless disregard for community safety and in the minutes and hours following the killing, Peter Bouctsis showed little to no remorse in the multiple text messages extracted from his cell phone. The Crown submits that the seriousness of the offence demands a longer sentence than would be provided by a youth sentence in order to provide for rehabilitation and reintegration of Peter Bouctsis and safety of the public.
103The reports emanating from Ray of Hope demonstrate that Peter Bouctsis continued to engage in drug use and drug trafficking while in the youth facility.
104The agreed statement of facts referred to above referenced an e-transfer of funds to an outside person in September 2022. The recipient referred to having obtained a drone capable of carrying things. In the context of Peter Bouctsis’s testimony during the hearing in which he admitted picking up drugs at the perimeter of the facility, this points to Peter Bouctsis remaining involved in drug dealing from within the facility within two weeks of having assured the court that he had turned away from his involvement in the drug subculture.
105The Crown relies upon two additional factors relating to Peter Bouctsis’s character and conduct in reference to the issue of accountability, and in particular, the promotion of his rehabilitation and reintegration into society and the long-term protection of the public.
106The first factor concerns Peter Bouctsis having been charged with three adult offences while in custody at Ray of Hope. The first related to Peter Bouctsis’s involvement in an assault inflicted by Peter Bouctsis with another individual on a young person on May 24, 2020. The second charge related to an assault which took place on or about July 26, 2021 in which a number of adult residents, including Peter Bouctsis, assaulted a young person in a gathering room.
107The Crown and the defence agreed that the circumstances of the two assaults would be presented to the court in aggravation during the sentencing hearing and their prosecution would not be proceeded with upon completion of the sentencing.
108The third charge resulted from the September 2022 incident described in the agreed statement of facts in which Peter Bouctsis is alleged to have bribed the Ray of Hope program manager in relation to the contraband cell phone obtained through another resident and turned over to police.
109The Crown submits that these adult charges relate to Peter Bouctsis’s prospects for rehabilitation and reintegration by showing his continued engagement with the criminal justice system, raising concerns for public safety.
110The remaining factor relates to Peter Bouctsis having corresponded from Ray of Hope with two adult inmates known to him through his drug trafficking involvement. There were five incidents of such correspondence during the period of December 12, 2019 to March 11, 2020.
111The Crown submits that in relation to the second prong of the test, a youth sentence would not be of sufficient duration to hold Peter Bouctsis accountable. The Crown maintains that an adult sentence is required to provide for his rehabilitation and safe integration into society. The Crown submits that Peter Bouctsis’s conduct in September 2022 demonstrates that, despite the efforts made through programming offered at Ray of Hope, the road to any sort of meaningful rehabilitation of Peter Bouctsis will be long. Measures will need to be in place to ensure that he safely reintegrates to the community and does not return to the criminal lifestyle he was involved in prior to the murder and has continued to be involved in while in custody at Ray of Hope.
112The Crown submits that Peter Bouctsis’s conduct has demonstrated an inability to abide by, comply with and engage with authorities in a meaningful and productive way. Peter Bouctsis has a history of duplicity, engaging positively with some parties, while maintaining his connections in a criminal subculture that led to the death of Bradley Pogue in 2018.
113The defence acknowledged that, as exemplified by the events of September 2022 recited in the agreed statement of facts, Peter Bouctsis is not currently ready to be reintegrated into society. However, the defence maintains that Peter Bouctsis does have good prospects for rehabilitation. He has a very good family who love him, he has completed high school while at Ray of Hope, has completed some college courses, and has participated in construction-related courses. If he receives an adult sentence and has to carry the stigma of a conviction for second degree murder, his prospects for rehabilitation will be diminished.
114The defence submits that once Peter Bouctsis has completed the custodial and supervision part of a youth sentence, he will be much older, his brain will be more fully developed and the chances for his succeeding would be much improved.
Conclusion on the second prong
115I am satisfied that a youth sentence will not be of sufficient length to hold Peter Bouctsis accountable for his offending behaviour.
116Although Peter Bouctsis has taken some positive steps during his time in custody including making educational progress and involving himself in programs, including the chaplaincy program, in consideration of all of the evidence, there remains serious concern about his level of insight and appreciation for what he has done and what he needs to do to work towards rehabilitation and reintegration. Moreover, despite the supports afforded to him by staff at Ray of Hope and by his parents and other family members and the opportunities available to him, Peter Bouctsis has been unable or unwilling to resist the draw that the criminal drug subculture, in which he was immersed prior to the murder of Bradley Pogue, has on him. This was exemplified by the shocking and perplexing recent events of September 2022 while the sentencing hearing was ongoing, which resulted in Peter Bouctsis being charged with bribery.
117I adopt the observation of Charbonneau J. in the case of R. v. M.(K.), 2017 NWTSC 26, at para. 178 that the paramount consideration in terms of Peter Bouctsis’s rehabilitation, reinsertion into the community and the protection of public safety is the requirement of long-term monitoring.
118Notwithstanding Peter Bouctsis’ placement in secure custody at Ray of Hope for almost four years at the time of the September 2022 events, Peter Bouctsis continues to adhere to the criminal lifestyle by engaging in drug transactions from within the facility and seeking out contact with criminal associates. Peter Bouctsis has been unable control his draw to the criminal lifestyle for four years, despite the clear incentive to do so through the sentencing process. It is difficult for the court to have confidence in his ability to resist this draw when the incentive is removed by the hard date under a youth sentence following which he will be free of any form of supervision.
119Upon being sentenced as an adult, the National Parole Board will have the ability to decide when Peter Bouctsis can safely reintegrate into society and on what terms. If there are concerns about renewed risk while Peter Bouctsis is at large, due to substance abuse for instance, there will be mechanisms available to control that risk: see M.(K.), at para. 174.
Disposition
120In consideration of the factors described above, the Crown’s application to have Peter Bouctsis sentenced as an adult is granted. Having granted the application, the sentence to be imposed is mandated by law.
121Peter Bouctsis would you please stand.
122I sentence you to life imprisonment without eligibility for parole for seven years counted from the date that you were arrested and taken into custody in respect of the offence on November 20, 2018.
123You shall submit to the giving of a sample of bodily fluids for forensic DNA analysis pursuant to section 487.051 of the Criminal Code on the basis that all three counts on which you have been found guilty are primary designated offences.
124You shall be subject to a weapons prohibition pursuant to section 109(2)(b) of the Criminal Code for life.
125Your convictions on counts 2 and 3 of the indictment are stayed, on consent, pursuant to the Kienapple principle.
126You may be seated.
127I wish to direct a few brief remarks to Bradley’s mother and other members of his family who may be in attendance.
128I am acutely aware of the devastating impact that Bradley’s death and its aftermath have had on his daughter, his mother and his entire family, and the upheaval and pain that the circumstances of his tragic death have caused, and which will no doubt persist into the future.
129It should be remembered that, regardless of the period of parole ineligibility that is mandated by the Criminal Code, the sentence remains that of life imprisonment. I echo the observations of Justice Hambly in the case of R. v. Hill, 2011 ONSC 4382 at para. 41 that because Peter Bouctsis will become eligible to apply for parole after serving the required period this does not mean that he will be necessarily granted parole. This will depend on whether he meets the criteria set by the National Parole Board. If he is granted parole, it will be subject to conditions, and he will remain under the supervision of parole officers. If he violates any of the conditions, he will be in jeopardy of being re-incarcerated. Life imprisonment for Peter Bouctsis means life imprisonment, even if he is released into the community subject to conditions.
Placement
130Pursuant to s. 76(1) of the YCJA, upon determining that an adult sentence is to be imposed, the trial judge is statutorily obligated to consider the young person’s placement, whether that be in a youth custody facility, a provincial correctional facility for adults, or where, as here, the sentence is for two years or more, in a penitentiary.
131I invite submissions from counsel on Peter Bouctsis’ placement or on whether a date should be set for pertinent evidence to be led on this issue and for submissions.
D.A. Broad, J.
Date: April 4, 2023