Publication Ban Warning

WARNING Information that would identify the young person in this proceeding is subject to a publication ban under the Youth Criminal Justice Act. This version of the Reasons for Sentence has been edited to comply with that prohibition and may be published.

This is ordered in accordance with

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

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

111. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court File and Parties

COURT FILE NO.: YCJA (P) 373/22 DATE: 20240823

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Mr. P. Maund, for the Crown

- and -

D.T. Mr. S. Dimitrijevic & Mr. J. Yuen, for the Young Person

HEARD: October 17, 2023, November 15, 2023, May 6, 2024, and June 14, 2024

REASONS FOR SENTENCE

Stribopoulos J:

Introduction

[1] D.T., a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA), pleaded guilty to a charge of first degree murder in the death of Uchenna Achioso.

[2] On December 17, 2020, two men, referred to in these proceedings as "Individual 1" and "Individual 2" shot Mr. Achioso in his basement apartment in Brampton. At the hospital the next day, Mr. Achioso died from his injuries. He was only 23 years old.

[3] At the time, D was 17 years old. In pleading guilty, he admitted to attending Mr. Achioso's apartment with the shooters and a fourth person ("Individual 3") to assist in carrying out their shared plan to murder him.

[4] These are the court's reasons for sentencing D for his gravely serious offence.

Circumstances of the Offence

[5] The events that led to Mr. Achioso's death began with a disagreement over the drug trade. In December 2020, both Mr. Achioso and D were selling drugs in downtown Brampton and were familiar with one another.

[6] Mr. Achioso and D exchanged text messages between December 8th and 14th, 2020. During the exchange, Mr. Achioso suggested that D should buy the cocaine and crack he was selling from him. However, D responded that he was not interested and criticized the quality of Mr. Achioso's drugs. This led to a brief feud between them that appears to have culminated in Mr. Achioso's murder.

[7] On the evening of December 17, 2020, several people, including D and Individual 1, were at an apartment in Brampton, which was used as a "trap house" a location where people congregated to buy, sell and use drugs. Mr. Achioso had previously sold drugs at that location.

[8] Individual 1 announced to those present that he "ran this block" and offered $300 and a quantity of crack to anyone who could show him where Mr. Achioso lived; he referred to him by his street name. Hailey McVicar, who had previously bought drugs from Mr. Achioso and D, accepted the offer. She then called Mr. Achioso and confirmed he was home.

[9] Aliyah Rosen, who had a rental car, was then called and asked to attend the trap house so that she could give several people, including D, a ride. She arrived at the location at 7:26 p.m. Almost three hours later, at 10:17 p.m., she left the trap house in her car with D, Ms. McVicar, and Individuals 1, 2, and 3. Neither Ms. Rosen nor Ms. McVicar knew that the purpose of this trip was for the men to locate Mr. Achioso and murder him.

[10] Ms. McVicar directed the way to Mr. Achioso's apartment, and Ms. Rosen parked just down the street. The group instructed Ms. Rosen to wait while they went to "do something quick."

[11] After they exited the car, Ms. McVicar attended Mr. Achioso's apartment. Mr. Achioso let her in because he knew her, as she had purchased drugs from him before.

[12] While Ms. McVicar was inside Mr. Achioso's apartment, D and the other three assailants positioned themselves outside his door. D stood to one side of the door along with Individuals 1 and 2, while Individual 3 was on the opposite side.

[13] Upon entering his apartment, Ms. McVicar bought drugs from Mr. Achioso and briefly smoked them. Afterwards, he accompanied her to the door, unlocked it, and let her out. As Ms. McVicar exited, D and Individuals 1 and 2 all donned masks before forcing their way inside. Individuals 1 and 2, who each had firearms, then shot Mr. Achioso as he stood in the stairwell of his apartment.

[14] D did not have a gun. As noted above, he admits that he was present to assist the shooters in carrying out their plan to murder Mr. Achioso.

[15] After the shooting, D, the two shooters, and Ms. McVicar all ran back to Ms. Rosen's vehicle and drove away. They dropped off Ms. McVicar at a gas station in Brampton after threatening her that if she said anything about what they had done, they would harm her.

[16] The group then proceeded to an apartment in Brampton, where D ordered an Uber for Ms. Rosen so that she would not have to drive the same car they had just used to flee the scene of Mr. Achioso's murder.

[17] Emergency responders took Mr. Achioso to the hospital shortly after the shooting, but he succumbed to his injuries the next day.

Impact of the Murder

[18] The court received victim impact statements from members of Mr. Achioso's family. These statements detailed his close bonds with his father, sister, and extended relatives. His murder has profoundly impacted everyone who loved him, negatively affecting every aspect of his family's lives. That is especially the case as it concerns his father and sister, who also lost Mr. Achioso’s mother not very long before his murder. It is difficult to imagine that his family will ever fully recover from Mr. Achioso's senseless murder.

Circumstances of the Offender

[19] As noted, D was 17 years old at the time of Mr. Achioso's murder. He was born in Brampton and is the youngest of three siblings; he has two older sisters.

[20] D's father is from Jamaica, and his mother is from Newfoundland. A maternal great-grandmother is reportedly Mi'kmaq, but D waived his right to a Gladue report and noted that he identifies as Black.

[21] D experienced a fair bit of instability growing up. Although his parents have enjoyed greater financial security in recent years because his mother now operates her own cleaning business where both his sisters work, the same was not true during his formative years.

[22] For much of his childhood, D's mother worked as a cleaner in the evenings, while his father, a carpenter, experienced periods of unemployment due to health issues. His father also struggled with substance abuse, which D witnessed as he was growing up. In addition, there were instances of domestic violence, with his father spending time in jail and on probation for assaulting his mother on at least two occasions. During D's early childhood, reports of corporal punishment by his father led to the involvement of the Children's Aid Society with the family. However, the Society worked with the family, and neither D nor his sisters ended up in care.

[23] The family had difficulty making ends meet and regularly defaulted on their rent, necessitating frequent changes in residence. They changed addresses at least ten times, and D attended as many as eight schools. At times, the family had to live with relatives, and they spent a few months living at a motel when he was in grade nine.

[24] The number of schools D attended was partly due to his frequent suspensions and expulsions. Before the age of six, he suffered two separate and serious head injuries that resulted in prolonged hospital stays. He was subsequently diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and was prescribed medication, which he did not like taking because of its side effects. He was also diagnosed with a learning disability in language and numeracy skills.

[25] D was disruptive at school and faced frequent discipline for his angry, defiant, and sometimes violent behaviour. He was regularly removed from class because school officials suspected he had not taken his ADHD medication, and he would spend long periods in the principal's office until one of his parents could attend and provide him with his medication.

[26] Eventually, D's behaviour at school led to his expulsion by the Peel District School Board. After that, he attended an alternative school in Mississauga. However, before his arrest for Mr. Achioso's murder, D had only managed to complete two high school credits.

[27] During his childhood and early adolescence, D's parents struggled to deal with the challenges his behaviour created. His father, who was more of a disciplinarian, would respond angrily to his misbehaviour. Although his parents undoubtedly loved and cared for him, they proved incapable of meeting his needs because of the instability they faced in terms of housing, employment and his father's substance abuse struggles.

[28] By the time D was in his early teens, his parents had lost most of their parental authority over him. From a young age, he gravitated towards people older than him who engaged in antisocial and criminal activities. By the age of 13, he was stealing cars, shoplifting, and selling drugs, including crack cocaine. Throughout his teens, he habitually used marihuana, consumed a mixture of codeine and MDMA, and drank alcohol regularly. D did not come home for days, weeks, or even months at a time. By age 15, he was no longer willing to obey his parents' rules and left home.

[29] D regularly faced charges because of his criminal behaviour. When he did, his parents would help him secure bail. His mother occasionally withdrew as his surety when he was not abiding by the terms of his release. D regularly faced charges for breaching the terms of his release orders.

[30] Despite the numerous charges he faced, D managed to avoid any findings of guilt on his youth record. Despite his behavioural issues, he always fulfilled the requirements to secure diversion or extrajudicial measures. As a result, Mr. Achioso's murder will represent the first finding of guilt on D's youth record.

[31] D's criminal lifestyle exposed him to many of its negative aspects. He had frequent and often negative interactions with the police, during which he reported that white police officers used racial slurs towards him. In addition, he found himself in dangerous and life-threatening situations, such as witnessing his best friend being shot. He also reports that three of his friends were victims of murder.

[32] D was arrested and charged with Mr. Achioso's murder on March 2, 2021. Since then, he has remained in custody. Before the end of August 2023, he was incarcerated in secure and then open-custody youth facilities.

[33] While in youth custody facilities, D benefitted from the available rehabilitative programs and services. He completed all his outstanding credits and earned his Ontario Secondary School Diploma. He received numerous certificates for his positive attitude and efforts while working toward his diploma. Additionally, D took advantage of available programming. He completed various multi-stage certificate programs addressing anger management, substance abuse, financial literacy, and employment skills. He also earned his forklift certificate and his G1 driver's license. Finally, while at an open custody facility, he gained employment experience by working for a landscape company.

[34] On August 29, 2023, D left an open custody youth facility without permission to consume marihuana. The following day, he was arrested and charged with being unlawfully at large. By then, he was an adult. As a result, he spent 42 days at the Toronto South Detention Centre before being transferred to the Toronto East Detention Centre, where he has remained incarcerated.

[35] Records from the Toronto East Detention Centre filed at the sentencing hearing suggest that the conditions of his incarceration there have been especially harsh due mainly to short staffing and overcrowding. There have been regular lockdowns. Additionally, D has spent four out of five nights triple-bunked in a cell designed for only two inmates. Finally, he has only had access to the outdoors through visits to the "yard" on about a third of his days at the Toronto East Detention Centre.

[36] While at the Toronto East Detention Centre, D reports participating in weekly Bible studies and meeting regularly with the chaplain. However, he also incurred two misconducts while at the facility. On one occasion, there was a brawl on his range, and everyone became involved, including D. A second fight involved him and another inmate and stemmed from a dispute over the phone. The Crown advised that there was video surveillance of that incident, which shows D to have been the aggressor.

[37] Thankfully, D has managed to reconnect with his family since his incarceration. His mother and father are supportive of him and optimistic about his future. Upon his release from custody, his family plans to relocate out of Brampton to get D away from the negative peer group he associated with in the past, and he supports that plan. D aspires to attend college and enter a skilled trade. Seneca College has extended an offer of admission to him for a program commencing this fall.

[38] D is currently in a romantic relationship with a young woman he met while he was in open custody. According to him, she is educated, employed, and entirely prosocial. He reports that she is a positive influence on him.

[39] In June 2024, Dr. Jeffrey Wong prepared a Psychological Assessment Report concerning D in response to a court order under section 34 of the YCJA. Dr. Wong interviewed D and administered tests that measured his cognitive abilities, emotional and social functioning, general personality functioning, and risk of reoffending.

[40] Dr. Wong acknowledged that there are, at present"no empirically validated actuarial instruments" for measuring "the risk of adolescent violent recidivism." Nevertheless, using the Structured Assessment of Violence Risk in Youth (SAVRY) test, Dr. Wong assessed D's risk for violent recidivism using various recognized risk factors. In Dr. Wong's opinion:

... D presented at High Risk of violent or aggressive reoffending due to the identified risk factors: i) a history of violent and non-violent offending behaviours, ii) past supervision failures, iii) association with antisocial adults, iv) anger management issues, v) risk taking behaviours, vi) exposure to domestic violence, vii) parental criminality, viii) poor academic achievement while residing in the community, ix) stress and poor coping, x) substance use, and xi) low empathy/remorse.

D presented with several protective factors such as strong personal support, strong attachment to family, positive attitude towards intervention and authority, strong commitment to school, and positive personality traits (e.g., some demonstrated growth/maturity while incarcerated).

[Underlining in original]

[41] In Dr. Wong's opinion, at least at the time of the murder, D met the criteria for the DSM-5 diagnosis of Conduct Disorder - Adolescent-Onset Type. In his view, D has cognitive weaknesses, including head injuries suffered during early childhood, his impulsivity, which is a symptom of ADHD, and his learning disability. Given D's "cognitive weaknesses and susceptibility to being impulsive or reactive" Dr. Wong opined that he "may not have fully processed his situation at the time of his offence" or "have thought through the consequences of his offence for himself and his victim."

[42] Regarding D's prospects for rehabilitation, Dr. Wong noted that his cognitive strengths, notably his nonverbal abilities, are protective factors that will assist in his rehabilitation. While incarcerated, D's demonstrated ability to complete his schooling and desire to enroll in college to learn a skilled trade suggests, in Dr. Wong's opinion, a concrete pathway toward his eventual rehabilitation.

[43] However, Dr. Wong believes that D will need counselling and programming to reduce his risk of reoffending in the future. He is optimistic about D's prospects for doing so, given that he demonstrated some maturation while incarcerated and appears open and willing to engage in opportunities to enhance his personal development. In that regard, Dr. Wong recommends further counselling to address D's anger and substance use. In that regard, Dr. Wong noted that:

The court may consider a period of secure custody to consolidate stabilization of his behaviour and skills, provide opportunity for rehabilitation, and develop a plan for reintegration into his home community. Upon release into the community, D may benefit from a structured and adult supported environment that assists in sustaining prosocial behaviours and activities and adaptive coping strategies.

[44] D is remorseful for his crime. He told Dr. Wong he was "sorry" and acknowledged that he committed "a senseless murder." Similarly, he expressed his remorse to a social worker, who prepared a report filed by the defence at the sentencing hearing. Finally, in his comments to the court at the end of the sentencing hearing, D indicated he was remorseful, took responsibility for what he did, and indicated that he would deeply regret his role in Mr. Achioso's murder for the rest of his life.

Positions of the Parties

[45] There is no dispute between the parties concerning the ancillary orders the court should make as part of sentencing. First, a DNA order, given that murder is a primary designated offence: see Criminal Code, R.S.C. 1985, c. C-46, s. 487.04; 487.051(1). Second, a weapons prohibition order for life under section 51 of the YCJA.

[46] In contrast, the parties sharply disagree concerning the carceral component of the sentence the court should impose on D.

[47] On behalf of the Crown, Mr. Maund submits that the appropriate sentence is nine years of imprisonment, with five years of secure custody and four years subject to a supervision order. He argues that the cases recognize ten years as the appropriate sentence for young persons who commit first-degree murder (which is the maximum sentence permitted under the YCJA), along with a well-established practice of not crediting their time spent in pre-trial custody. In urging the court to impose a nine-year sentence, Mr. Maund concedes that D should receive credit for the year he has spent at the Toronto East Detention Centre, but not on any enhanced basis.

[48] Given his age, D must serve any custodial sentence the court now imposes in an adult facility. However, Mr. Maund has confirmed that if D receives a custodial sentence of greater than two years, the provincial director would likely apply under section 89(2) of the YCJA to have him serve it in a penitentiary. Mr. Maund submits that D could benefit from the extensive programming available to offenders in federal custody and notes that Dr. Wong expressed the view that he needs counselling and programming.

[49] Ultimately, Mr. Maund submits that the sentence the Crown proposes, given the aggravating and mitigating factors in this case, is necessary to hold D accountable for his offence and to promote his rehabilitation and reintegration into society.

[50] In contrast, on behalf of D, Mr. Dimitrijevic submits that a global sentence of seven years imprisonment is appropriate in all the circumstances. Further, he argues that D should receive credit for his time spent in pre-sentence custody, including enhanced credit for the year he has spent at the Toronto East Detention Centre, where the conditions have been especially harsh.

[51] Mr. Dimitrijevic disputes that there is any hard and fast rule that young persons sentenced for first-degree murder must receive the maximum ten-year sentence and not be credited for their time spent in pre-sentence custody. He argues that each decision relied on by the Crown, where sentencing judges took that approach, is distinguishable.

[52] Mr. Dimitrijevic submits that several mitigating factors in this case, not present in the cases relied upon by the Crown, lessen D's degree of responsibility for his crime and warrant a sentence of the duration he urges. Further, he emphasized the substantial inroads D has made toward his rehabilitation, including the programming he has already completed that Dr. Wong appears not to have been aware of.

[53] Ultimately, Mr. Dimitrijevic submits that the court should give D full credit for his time spent in pre-sentence youth custody at a rate of 1.5 to 1 and enhanced credit at a rate of 2 or even 3 to 1 for his year at the Toronto East Detention Centre. If the court agrees, Mr. Dimitrijevic argues that D has already served most of what would constitute an appropriate sentence and that any modest period that remains (391 days at the time of the sentencing hearing on June 14, 2024, by his calculation) should be the subject of a supervision order.

[54] Any further time in an adult correctional facility, argues Mr. Dimitrijevic, would only hamper D's rehabilitation and reintegration, which are preeminent objectives when sentencing young persons.

Law and Analysis

[55] Sentencing under the YCJA is, by its very nature, highly discretionary. There is no set formula that a sentencing judge can follow to arrive at the appropriate sentence for a young person. Instead, the YCJA reminds judges of the purpose of the Act and directs their attention to key animating principles, and relevant sentencing objectives and factors they must consider when exercising their broad discretion.

[56] Subsection 3(1) of the YCJA sets out the purposes and principles underlying the youth criminal justice system, including the principle that young persons have diminished moral blameworthiness or culpability for their actions.

[57] Section 38(1) identifies the purpose of sentencing under the YCJA: to hold young persons accountable for their offences by imposing just sanctions that serve as a meaningful consequence for them and promote their rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

[58] Section 38(2) identifies the principles the court must consider in fashioning an appropriate sentence. In that regard, the court may impose a sentence with the objectives of denunciation and specific deterrence, subject to the court's preeminent obligation to impose a sentence proportionate to the seriousness of the offence and the degree of responsibility of the young person in committing it.

[59] Further, subsection 38(3) identifies factors the court must consider in fashioning an appropriate sentence, many of which are relevant here. These include the degree of the young person's participation in the offence, the harm done to any victim, any previous findings of guilt of the young person, and any other aggravating or mitigating circumstances related to the young person or the offence: see YCJA, ss. 38(3)(a), (b), (e) and (f).

[60] Additionally, subsection 38(3)(d) requires that the sentencing judge consider "the time spent in detention by the young person as a result of the offence." As the Court of Appeal has recognized, under that provision, the sentencing judge enjoys broad discretion: see R. v. M.B., 2016 ONCA 760, 342 C.C.C. (3d) 34, at para. 9.

[61] For example, the sentencing judge may decide not to give any credit for pre-sentence custody, which is often the case after the Crown has unsuccessfully applied to have a young person sentenced as an adult: see M.B., at para. 10. That is not at all surprising. In such cases, the court's ability not to credit time spent in pre-sentence custody could prove the decisive consideration under section 72(1) of the YCJA when deciding whether the court can fashion a youth sentence of sufficient length to hold a young person accountable: see, for example, R. v. M.W., 2017 ONCA 22, 134 O.R. (3d) 1.

[62] With the governing considerations now summarized, these reasons turn next to their application to the circumstances of this case.

[63] It is difficult to overstate the gravity of the offence D committed. First degree murder is the most serious crime known to our law. Given this, it is the offence for which the court may impose the longest sentence contemplated under the YCJA. Up to ten years, composed of custody for a period not exceeding six years, followed by a period of conditional supervision in the community: see YCJA, s. 42(2)(q)(i).

[64] In deciding on the appropriate sentence, the court must impose a sentence similar to the sentences imposed on similar young persons found guilty of the same offence committed in similar circumstances: see YCJA, s. 38(2)(b). In this case, respecting that principle is made challenging because there are (thankfully) only a handful of sentencing decisions for first-degree murder involving young persons.

[65] The Crown identified five such decisions. [^1] In each, the court imposed the maximum sentence of ten years and, in most, gave no credit for time spent in pre-sentence custody. However, each of these cases is distinguishable; four involved young persons who were found guilty after trial and who the Crown unsuccessfully applied to have sentenced as adults. In the one case that involved a guilty plea (J.R.-S.), the sentence imposed resulted from a joint submission—further, unlike D, that young person had an extensive youth court record, including for crimes of violence.

[66] As a result, the principle of parity is not especially helpful in fashioning a proportionate sentence in this case. Instead, arriving at a sentence that reflects the seriousness of the offence and D's degree of responsibility in its commission requires careful consideration of the aggravating and mitigating factors in this case. I will begin with the aggravating factors before turning to the mitigating.

[67] First, D played a central role in the events that culminated in Mr. Achioso's murder. A dispute between him and Mr. Achioso concerning the drug trade in downtown Brampton began the events that led to this senseless crime. Further, based on the admitted facts, it appears that D was directly involved in planning and carrying out the murder of Mr. Achioso. These are significant aggravating factors. They demonstrate that D bears a high degree of responsibility for Mr. Achioso's murder.

[68] Second, beyond senselessly snuffing out a young life, this crime has had a profound impact on Mr. Achioso's family. The effect of his murder on them, as noted, is something that they will continue to deal with for the rest of their lives. The significant and lasting impact of this crime is an aggravating factor.

[69] Third, the location where the crime took place is an aggravating factor. D and his accomplices murdered Mr. Achioso in his home, the place where everyone is entitled to feel most secure and safe.

[70] Finally, the murder involved the use of firearms. The lethal combination of drugs and guns is a scourge in our community, and their presence in this case is an aggravating factor.

[71] At the same time, several significant mitigating factors exist in this case that the court must consider in crafting an appropriate sentence for D.

[72] First, although, as noted, D played a central role in the events that culminated in the murder of Mr. Achioso, I recognize that he was not a principal but a party to the crime. He did not fire the shots that killed Mr. Achioso. The Crown alleges two adults are responsible for that; their trial is scheduled for the fall. It is also notable that D was the only young person involved; all the others were adults considerably older than him.

[73] Individual 1's comment at the trap house, as he attempted to enlist someone to lead them to Mr. Achioso, that he "ran this block" combined with the fact that he and a second adult took the lead in carrying out the shooting, suggests that D was subordinate to these individuals in the drug trade and the murder. In short, D appears to have followed the lead of older individuals who wielded at least some authority over him.

[74] Second, D pled guilty and took responsibility for his role in the murder of Mr. Achioso. Although it was not an early guilty plea by any measure (it came after the defence had unsuccessfully argued some pre-trial applications), it has nevertheless saved scarce prosecutorial and judicial resources and still deserves consideration as a significant mitigating factor.

[75] Third, I accept that D is remorseful for the role he played in Mr. Achioso's murder. Although D has some distance to travel toward his rehabilitation, including gaining greater insight into his risk for reoffending and the steps he will need to take to prevent that, I accept that he is genuinely sorry for what he has done and committed to not reoffending.

[76] Fourth, D does not have a prior youth record. Of course, the evidence at the sentencing hearing makes it abundantly clear that D was by no measure leading a law-abiding and prosocial life before the murder of Mr. Achioso. Nevertheless, he had never received a youth sentence that might have assisted in righting the course of his young life.

[77] Fifth, D has already made substantial inroads toward his rehabilitation. While held in youth facilities, he completed his high school diploma—no small feat, given that he had only completed two credits before he entered custody. Additionally, he completed numerous programs that will undoubtedly help to address the underlying causes of his criminal behaviour, including programs in anger management and substance abuse.

[78] Sixth, D has the love and support of both his parents. As noted, they intend to relocate out of Brampton to separate D from the negative peer influences that contributed to his pursuit of a criminal lifestyle that led directly to his involvement in this crime. His family is an essential support for D and will undoubtedly positively influence his rehabilitation.

[79] Seventh, there is Dr. Wong's opinion that because of D's cognitive weaknesses, including his head injuries, his impulsivity, which is a symptom of ADHD, and his learning disability, he was prone to acting impulsively and may not have fully appreciated the consequences of his actions for him and others. All that somewhat lessens his degree of responsibility for his crime.

[80] Notably, Dr. Wong also recognized that given some of his cognitive strengths, his maturing while in custody, and the efforts he has already made, there is reason for optimism for D's eventual rehabilitation with further counselling and programming.

[81] Finally, D is a young Black man. Unfortunately, his background and upbringing closely track the very sort of circumstances that courts have come to recognize as resulting from the effects of systemic anti-Black racism. As the Court of Appeal has acknowledged, these can lessen an offender's moral blameworthiness in committing an offence: see R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641.

[82] Despite the absence of an Enhanced Pre-Sentence Report (EPSR), the court has considerable insight into D's background and circumstances through the combination of the reports prepared by the social worker and Dr. Wong. These reports, combined with details from the EPSR before the court in Morris, together support a finding that at least some of D's formative experiences have a connection to systemic anti-Black racism.

[83] The disruptions in D's schooling, his parents' employment challenges, the family's precarious housing situation, the failure of the Children's Aid Society to do more to help right the course of his life during his formative years, and his negative interactions with the police all reflect the well-documented and pernicious effects of anti-Black racism. According to the Court of Appeal in Morris at para. 42, these matters can be the subject of judicial notice.

[84] Although the effects of anti-Black racism do not excuse D's horrendous crime, they assist in putting his offence in context and assessing his degree of responsibility in its commission. In short, I am satisfied that anti-Black racism played at least some role in narrowing D's worldview, influenced his choice of peers, and contributed to putting him in the position that led him to commit his crime.

[85] As a result, I am satisfied that there is a connection between D's life experience, anti-Black racism, and his commission of the offence for which I am sentencing him. While D is undoubtedly responsible for his crime, these social realities somewhat mitigate his level of responsibility.

[86] Having carefully considered the aggravating and mitigating factors in this case, I have concluded that an eight-year sentence, consisting of five years in custody and three years under community supervision, is appropriate in all circumstances.

[87] That is the least restrictive sentence capable of holding D accountable for his gravely serious crime and serving as a meaningful consequence for him. A sentence of that length is almost equal to half of D's age at the time of Mr. Achioso's murder. When he finishes his sentence, it will represent almost a third of his life. Given D's age, eight years is a very long and meaningful sentence. It is also of sufficient duration that it will have the added benefit of denouncing his gravely serious crime while specifically deterring him from engaging in criminal behaviour in future.

[88] At the same time, a sentence of that duration is not so long that it would be counterproductive to D's rehabilitation and reintegration into society. That is especially so because a significant portion of it will be spent under conditional supervision in the community, subject to conditions that will help D stay on track and continue to take the rehabilitative steps he has already begun, and that Dr. Wong says he needs.

[89] The final consideration I must address is whether to credit D for his time in pre-sentence custody. Had D not undertaken several significant steps toward rehabilitation while in custody, I might have acceded to the Crown's submission not to credit him for any portion of his time in pre-sentence custody. However, that is not the case.

[90] At least while he was in youth custody, D worked hard to finish high school and completed a considerable amount of programming to address the underlying causes of his criminal behaviour. It would be unfair to ignore those efforts. In this case, not crediting his time in pre-sentence custody would be unduly punitive and wrongly prioritize denunciation over D's rehabilitation and reintegration into society, which the YCJA prescribes as preeminent sentencing objectives.

[91] At the same time, I reject Mr. Dimitrijevic's submission that D should receive enhanced credit for his time in pre-sentence youth custody for two principal reasons.

[92] First, there was nothing about the conditions of his detention in those facilities to warrant enhanced credit. After all, D could attend school, take programming and even work while in youth custody. As already noted, these are opportunities that D took full advantage of while in youth custody.

[93] Second, giving D enhanced credit for his time spent in youth pre-sentence custody would potentially consume much of the appropriate sentence and result in a sentence ill-suited to maximizing his chances for rehabilitation and reintegration into society.

[94] In contrast, I accept that the conditions of D's detention at the Toronto East Detention Centre justify granting him enhanced credit for the year he has spent confined there. During his time at that facility, there have been regular lockdowns with all that that entails. Further, D has had to sleep in a cell with two other inmates on most nights, even though the cell was designed to accommodate only two inmates. Finally, there has been limited access to the outdoors and little by way of programming.

[95] Conditions such as these make the experience of pre-sentence custody especially harsh. They should have a mitigating effect on the custodial sentence that would otherwise be appropriate to account for that reality: see R. v. Duncan, 2016 ONCA 754; R. v. Bristol, 2021 ONCA 599, at paras. 10-12.

[96] Accordingly, D shall be granted one-for-one credit for his time spent in youth facilities before sentencing from March 2, 2021 to August 30, 2023, essentially 30 months. Additionally, the one-year D has spent at the Toronto East Detention Centre subject to unduly harsh conditions shall mitigate the custodial portion of the sentence he shall receive going forward.

Conclusion

[97] For these reasons, the court shall register an eight-year sentence consisting of five years in custody and three years under community supervision.

[98] However, due to credit for D's time spent in pre-sentence custody, the court sentences him to six further months of custody, followed by three years of community supervision.

[99] Additionally, a DNA order and a lifetime weapons prohibition order under section 51 of the YCJA shall be issued.

Signed: "Justice J. Stribopoulos" Released: August 23, 2024

[^1]: The Crown relied on R. v. D.M., 2023 ONCJ 475; R. v. J.R.-S., 2022 ONSC 4619; R. v. M.W., 2017 ONCA 22, 134 O.R. (3d) 1; R. v. S.M., 2012 ONSC 5078; R. v. C.K., 2006 ONCJ 283, 211 C.C.C. (3d) 426.