Restriction on Publication

Pursuant to subsection 110(1) of the Youth Criminal Justice Act, 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 having been dealt with under this Act. This judgment complies with this restriction so that it can be published.

Reasons for Sentence

Justice M. Fuerst

Introduction

K.D. pleaded guilty to being an accessory after the fact to the offence of discharge firearm with intent to wound, maim, disfigure, or endanger the life of Michael Ferdinand. K.D. admitted that he assisted the shooter, T.N-S., for the purpose of enabling T.N-S. to escape.

K.D.’s offence arose from the tragic and senseless shooting of Mr. Ferdinand, who was carrying out his duties as a security officer at the Pickering Casino Resort early in the morning on Thanksgiving Day, 2023.

K.D. did not participate in the shooting itself. But, knowing that T.N-S. had shot and wounded Mr. Ferdinand, K.D. drove T.N-S. away from the Casino, as police officers began to arrive at the property.

The Circumstances of the Offence

In the early morning hours of Monday, October 9, 2023, K.D. was with T.N-S., Seth Mondesir, Tahje Newton, and others. Some of their activity that morning was captured on surveillance camera footage.

K.D. met the group at Club 44 in Toronto. Just before 3:15 a.m., as they loitered outside the establishment, they became involved in a confrontation on the street with another group of patrons. T.N-S. and K.D. followed that group to the front door of the club. When security guards prevented T.N-S. from entering the premises, he got into a dispute with them. As K.D. stood over the left shoulder of T.N-S., the latter brandished a black firearm and pointed it at the mid-section of a security doorman.

T.N-S. and his group, including K.D., left the area of the club. As they did so, a member of the group ripped a necklace from the neck of a male on the street. Although K.D. did not participate in the robbery, he was standing directly behind his associate when it happened. T.N-S., while walking backward, pulled up his shirt and flashed his handgun. It is not clear whether K.D. saw him do so.

The group went on to the Pickering Casino Resort in Pickering. K.D. drove a stolen Honda Civic, which he parked in the Casino parking lot around 3:50 a.m. He joined T.N-S., Mr. Mondesir, Mr. Newton, and other associates in the Casino. A few minutes later, he left the Casino and went back to the Honda. He joined two associates there. He changed from jeans into sweatpants, and also changed his footwear. Then he and his associates returned to the Casino lobby, around 4:00 a.m. The group loitered in the Casino lobby for about an hour.

Just after 5:00 a.m., T.N-S. and a female went into the lobby washroom together. Security was notified. T.N-S. then became involved in a verbal altercation with Michael Ferdinand, who was working as a Casino security guard.

As Mr. Ferdinand tried to escort T.N-S. out of the Casino, the two men got into a physical altercation. T.N-S. removed a firearm from his waistband. He pointed it at Mr. Ferdinand. Mr. Ferdinand grabbed T.N-S.’s arm to secure the handgun, but the two men fell to the ground in the lobby.

As they lay on the ground, Mr. Ferdinand tried to disarm T.N-S. T.N-S. discharged the firearm at Mr. Ferdinand, firing two rounds. One of the rounds hit the ceiling of a Starbuck’s kiosk. The other struck Mr. Ferdinand in the chest while the men were still on the ground.

K.D. had been across the lobby, about 25 metres away. After he heard the shots fired, he ran over to the struggle. He stood over the parties, watching them closely. Mr. Mondesir and Mr. Newton joined him. Mr. Mondesir obtained the firearm from T.N-S., as T.N.S. continued to struggle with Mr. Ferdinand. Mr. Newton assisted T.N.S. by physically separating Mr. Ferdinand from him. Mr. Ferdinand was bleeding profusely from his gunshot wound. Some of the blood transferred onto T.N.S.’s clothing.

Mr. Newton, T.N.S., Mr. Mondesir, and K.D. fled from the Casino. K.D. went to the Honda Civic. As he drove it in the parking lot, he saw T.N.S. and Mr. Mondesir. He stopped the car to allow them to get in, to assist in their escape. T.N.S.’s white t-shirt had a large transfer stain of blood from Mr. Ferdinand on the back.

K.D. drove out of the parking lot and onto the roadway, fleeing the scene. As he did so, he passed three marked police cruisers that were heading to the Casino, with their lights activated.

Mr. Ferdinand was rushed to Sunnybrook Hospital, where he was pronounced deceased around 6:00 a.m.

K.D. was arrested on December 11, 2023. He has been in youth custody since his arrest.

The Victim Impact Information

Victim Impact Statements were provided by Mr. Ferdinand’s spouse, his mother, and his sister-in-law.

Mr. Ferdinand’s spouse describes her entire existence being “rocked to the core” by the death of the person who was her “happily ever after”. She feels overwhelming sadness over Mr. Ferdinand’s death. She lost not only her life partner, but also half of herself. She does not sleep or eat properly, her body is in a constant state of pain, and she suffers anxiety and fear for her own safety. She has needed weekly psychotherapy. Because she has been unable to return to work her financial well-being has been impacted, as well as her emotional and physical health.

Mr. Ferdinand’s mother wrote that she is still in shock and unable to accept that her son is gone. She was robbed of the opportunity to say goodbye to him. She does not have the drive to remain positive about anything. She does not sleep normally, has had to take time off work, and needs intensive therapy.

Mr. Ferdinand’s sister-in-law wrote that the loss her sister has had to deal with is incomprehensible. It has adversely affected the entire family as they try to support her.

The Circumstances of K.D.

K.D. is a young black male. He was 16 years of age at the time of the offence. He is now 17 years old. He has no previous youth record.

Information about K.D. and his background were provided in a s. 34 assessment report and a pre-sentence report.

K.D. was raised primarily by his mother. His parents separated when he was about two years old. Prior to his arrest, K.D. lived with his mother, maternal grandmother, and older half-brother. He has a good relationship with all of them. K.D. speaks to his mother from the youth facility every day. Currently his mother works in an office. She had a personal training business, but put it on hold because of the impact on her of K.D.’s situation. K.D. will return to his mother’s home on his release from custody.

K.D.’s father has been in and out of jail throughout K.D.’s life. K.D.’s mother wanted him to have a relationship with his father, but his father has been inconsistent about spending time with his son. K.D.’s mother believes that her son missed having his father around him, especially because he was aware that his half-brother’s father played an active role in his half-brother’s life. K.D. acknowledges that he would like to have more of a relationship with his father.

K.D. has eleven half-siblings on his father’s side. His relationship with most of them is good.

K.D. attended an elementary school where he was the only black child in a predominantly white student population. He was sometimes picked on, and called a racist name by other students. K.D. had some counselling for depression when he was nine years old. The school suggested that he be assessed for ADHD, but his mother did not follow up on that suggestion.

K.D. says that he began using cannabis daily when he was in grade six, and that his mother was aware of this. He started using percocets in grade eight, and lean in grade ten. By the time he was 15 or 16, he was using cannabis daily. He feels that the cannabis made him become lazy.

K.D. completed grade nine. He was enrolled in grade ten at the time of the offence, but had stopped attending school.

K.D. was very active in sports in elementary and high school, including team sports. He excelled at football and basketball.

K.D. told the author of the pre-sentence report that he had close friends who went to school, did not use drugs, and were not involved in the justice system or gangs. However, when some of them left to play basketball in the United States, he started associating with individuals who were negative influences.

In late 2022, K.D.’s father went back into custody. Around that time, K.D.’s mother noticed changes in K.D.’s behaviour and mental state. She was suspicious that he was using drugs. The school principal told her it was suspected that K.D. was smoking marijuana in school. K.D. told his mother he was taking percocets. His mother also noticed that his friend group changed. In January 2023, the police came to the home because K.D. had allegedly stolen a pair of shoes from a peer. At the same time, K.D. was cut from his basketball team because of issues with the coach.

K.D.’s mother required him to perform household chores, and to abide by a curfew. He was compliant up until the summer of 2023, when he started to spend time away from home.

K.D. told the s. 34 assessor that he was not in a gang, but before his arrest he was becoming more acquainted with peers who were part of a gang.

While in custody, K.D. completed several high school credits. He also took a carpentry program, which he enjoyed. To some extent, his ability to pursue his education has been impeded because he has been transferred between different youth facilities. Currently he is in grade 12.

K.D. was assaulted by peers several times during the months he was held at Roy McMurtry Youth Centre. He was not the instigator of the assaults.

K.D. told the s. 34 assessor that he is sad because he is in custody and cannot see his family. He is frustrated that he cannot go home. He started counselling in January 2024, to work on his emotions, goals, and how he wants to change. He feels that the counselling has been helpful. He also described getting closer to the Christian faith while in detention.

K.D. wants to continue counselling after he is released from custody. He does not want to use cannabis or other substances in the future. He is willing to take counselling for substance abuse. He no longer wants to associate with gang-affiliated peers. He plans to join a basketball team, and focus on completing school. He would like to become a youth worker.

K.D.’s mother describes him as smart, ambitious, giving, compassionate and empathetic. She believes that he still struggles with depression. On his release from detention, she wants him to attend counselling, continue playing basketball, finish high school, and go on to post-secondary education. She feels a lot of shame about his offence and that he is in custody. She wants to be a better mother to him. The s. 34 report describes her as a consistent parent in K.D.’s life, and a strength for him.

With respect to the offence, K.D. told the s. 34 assessor that his charge is serious. He feels remorse and sadness about Mr. Ferdinand’s death. He thinks about the victim’s family, and wishes that he was never at the Casino to begin with. He told the pre-sentence reporter that he was under the influence of drugs and alcohol at the time of his offence.

The s. 34 assessor described K.D. as respectful and polite. He has a likeable personality, and many strengths. But, he needs to stay away from negative peer influences, and focus on achieving his goals. He would benefit from on-going counselling to support the exploration of his feelings and thoughts related to his charge and other interpersonal relationships. She recommended that on his release from custody, he enrol in school as soon as possible.

K.D.’s Reintegration Counsellor indicated that he knows right from wrong, and is receptive to participating in counselling.

K.D. was seen by a consulting psychologist for the purpose of the s. 34 report. The psychologist found that K.D. appears to meet the criteria for diagnosis of adjustment disorder with mixed anxiety and depressed mood. This suggests that he is experiencing an anxious and depressed mood based on his current involvement in custody and with the justice system. K.D. also was seen by a consulting psychiatrist. According to the s. 34 assessor, the psychiatrist diagnosed generalized anxiety disorder. She recommended that K.D. have therapy to learn more successful prosocial skills and behaviours, receive treatment for substance abuse, and continue in academic programs. She suggested that K.D.’s cannabis use might have aided in the relief of his anxiety symptoms in the past. She recommended that he consult with a medical practitioner on his release from custody, to discuss appropriate medication.

K.D.’s mother addressed me on the sentencing hearing. She said that she visits her son in custody every weekend. He looks a lot healthier than he did before his arrest. She has seen change and personal growth in him, as well as a lot of remorse. She will support whatever recommendations I may make for counselling or therapy for K.D.

K.D. also addressed me on the sentencing hearing. He apologized to Mr. Ferdinand’s family. He said that he has spent a lot of time reflecting, and he deeply regrets the consequences of his behaviour. While in custody he has learned about accountability and making choices. He is dedicated to making better decisions in the future.

The Positions of the Parties

The Crown applies to have K.D. sentenced as an adult, to a five year custodial sentence. Mr. Hart on behalf of the Crown submits that it has met the test in s. 72(1) of the Youth Criminal Justice Act (“YCJA”). In the alternative, if a youth sentence were to be imposed, the Crown seeks a two year custodial disposition, with Mr. Hart noting that it must be composed of two-thirds custody and one-third supervision in the community. Mr. Hart submits that K.D.’s time in pre-disposition custody should not be deducted from that two years.

Mr. Hart acknowledges the mitigating factors. K.D. was 16 years old at the time of the offence, he had no prior youth record, he pleaded guilty and did so at an early opportunity, he has family support especially from his mother, and the s. 34 and pre-sentence reports are fairly positive. The aggravating factors, however, are numerous. K.D. saw that T.N-S. was armed with a handgun outside the club in Toronto, but continued to associate with him. K.D. was present when T.N-S. shot Mr. Ferdinand. Outside the Casino, K.D. stopped the car and allowed T.N.S. to get in. There is no evidence of coercion of K.D. by T.N.S., nor was he more than a friend or acquaintance of K.D. This offence of being an accessory after the fact involved a victim, but was also a crime against the administration of justice. It enabled T.N.S. to avoid apprehension immediately following the shooting.

Mr. Hart seeks a weapons prohibition order, and a DNA order.

On behalf of K.D., Mr. Zbarsky submits that the Crown has not met the onus required for imposition of an adult sentence. Initially, Mr. Zbarsky took the position that I should impose a youth sentence of a deferred custody and supervision order, which could be followed by probation. He emphasized that while K.D. watched the struggle between T.N.S. and Mr. Ferdinand, he was not involved in it. He ran to the car of which he had possession, and was leaving the parking lot when he saw T.N.S. He made a bad decision to let T.N.S. into the vehicle. He let him out soon after. This was an immediate reaction, made without time to reflect. It indicated that K.D. was thinking as a 16 year old teenager, and not like an adult. Mr. Zbarsky emphasized that K.D. does not have a record for violence, he pleaded guilty as early as he could, he has done well in pre-disposition custody, he has family support, and the s. 34 and pre-sentence reports are positive. Further, the nature of the accessoryship in this case is at the low level.

Subsequently, I asked both counsel for further submissions about the requirements of s. 39(1) as well as the basis for a deferred custody and supervision order. Mr. Hart clarified that the Crown relies on s. 39(1)(d) of the YCJA as the route to a custodial sentence. The Crown opposes a deferred custody and supervision order, but Mr. Hart and Mr. Zbarsky agree that a deferred custody and supervision order is a custodial sentence. Thus, s. 39(1)(d) of the YCJA must apply before a deferred custody and supervision order could be imposed in this case. Mr. Zbarsky, however, now submits that the appropriate sentence is not a deferred custody and supervision order, but rather a period of probation.

Mr. Zbarsky voiced no objection to the ancillary orders requested by Crown counsel.

The Offence of Being an Accessory After the Fact

The gravity of the offence of being an accessory after the fact is well-established. In R. v. Wisdom, [1992] O.J. No. 3110 (Ont. Gen. Div.), Watt J. (as he then was) described the offence as one that constitutes an interference with the administration of justice. This is because the accessory interferes with the investigation of crime and the detection of offenders. Because of the accessory’s actions, there is the potential for serious crimes to go unsolved, and criminals left at large to reoffend. Accordingly, in the context of adult offenders sentenced in accordance with the principles set out in the Criminal Code, the offence of accessoryship usually attracts a sentence of incarceration, albeit the range of sentence is wide.

Sentencing Under the YCJA

Section 3(1)(a) of the YCJA delineates that the youth criminal justice system is intended to protect the public by holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person; promoting the rehabilitation and reintegration of young persons who have committed offences; and supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour.

Section 3(1)(b)(ii) provides that the criminal justice system for young persons must emphasize fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity.

Section 38(1) specifies that the purpose of sentencing under the YCJA is to hold the young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for them, and that promote their rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

Section 38(2) sets out a number of principles that a sentencing judge must apply to determine the appropriate sentence for a young person. They include that, subject to the requirement the sentence be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence, the sentence must be the least restrictive sentence that is capable of achieving the purpose set out in s. 38(1); be the one that is most likely to rehabilitate the young person and reintegrate them into society; and promote a sense of responsibility in the young person and an acknowledgment of the harm done to victims and the community. Section 38(2) also provides that the sentence must not result in a punishment greater than would be appropriate for an adult convicted of the same offence in similar circumstances.

Subsection (3) lists factors that the sentencing judge must take into account.

Analysis

Issue #1: Should an Adult Sentence be Imposed?

Under s. 72(1) of the YCJA, I must order that an adult sentence be imposed if I am satisfied of both of two requirements, or “prongs”. The first, known as the presumption prong, is that the presumption of diminished moral blameworthiness or culpability of the young person is rebutted. The second is that a youth sentence imposed in accordance with the purpose and principles in ss. 3(1)(b)(ii) and 38 would not be of sufficient length to hold the young person accountable for their offending behaviour.

The onus of satisfying me of both prongs is on the Crown.

In R. v. M.W., 2017 ONCA 22, the Court determined that the two prongs must be analyzed separately.

(a) The Presumption Prong

The presumption prong means that I am required to presume K.D.’s diminished moral blameworthiness: see, M.W., at para. 23. To rebut the presumption, the Crown must satisfy me that the evidence supports a finding that at the time of the offence, K.D. “demonstrated the level of maturity, moral sophistication and capacity for independent judgement of an adult such that an adult sentence and adult principles of sentencing should apply” to him: see, para. 98.

Both the seriousness of the offence and the circumstances of K.D. must be considered: see, R. v. C.R., 2024 ONSC 3363, para 74.

The death of Mr. Ferdinand by gunshot at his place of employment, as he carried out his duties as security personnel, was horrendous. It may well be that the circumstances in which he was killed would constitute at least manslaughter, and perhaps murder. But, tragic as the death of Mr. Ferdinand is, it is important to bear in mind that K.D. is not before me as the shooter. He is not before me as a party to murder or manslaughter. He is not before me as an accessory after the fact to murder or manslaughter. He cannot be sentenced on the basis of culpability that is not his.

I agree with Crown counsel that K.D.’s offence of accessory after the fact to discharge firearm with intent is a serious crime. But, it does not necessarily follow that the presumption of diminished moral blameworthiness is rebutted in this case.

When T.N-S. got into a struggle with Mr. Ferdinand and discharged his firearm, K.D. was 25 metres away, standing in the Casino lobby. The struggle and the discharge of the firearm occurred suddenly. It was in that context that K.D. approached the men and watched as they struggled on the ground. The fact that he did not try to summon help for Mr. Ferdinand attracts a degree of moral blameworthiness, but K.D.’s conduct was consistent with a young person’s less developed ability for critical thinking in an emergent situation. It is relevant that unlike some of his associates, he did nothing to assist T.N.S. in the struggle, or to impede Mr. Ferdinand. He did not give anything to T.N.S., or take anything from him.

With the knowledge that T.N-S. had shot Mr. Ferdinand, but not knowing the ultimate consequence of Mr. Ferdinand’s death, K.D. ran from the Casino back to the Honda, got into the driver’s seat, and started the vehicle to leave the parking lot. All of this occurred very quickly. He was already in the process of leaving the parking lot when he saw T.N-S. He stopped the Honda for a matter of seconds to let T.N.S. get in. He then drove out of the parking lot, and onto the main road, letting T.N.S. out of the vehicle soon after. K.D.’s conduct as an accessory after was reactive, not planned. It occurred alongside his own flight from the scene. The time period involved was a matter of minutes. The events do not reflect a weighing of the pros and cons that is indicative of adult judgement. The fact that K.D. passed three police vehicles and kept on driving rather than stopping points to a reduced level of moral sophistication. It is not suggested that he took steps of a highly deliberative nature, such as disposing of or concealing evidence, or lying to the police.

I agree with Crown counsel that while it is not part of the offence itself, the fact that K.D. continued to associate with T.N.S. and the others notwithstanding their behaviour outside the club, and in particular even though he knew that T.N.S. was carrying a handgun, is an aggravating circumstance. However, I do not agree that it shows “the level of maturity, moral sophistication and capacity for independent judgement of an adult”. It demonstrates extremely poor judgement and lack of foresight on K.D.’s part, qualities common to young people as opposed to adults, as referenced in M.W. at paragraph 97.

I also consider K.D.’s personal circumstances. He was 16 years old at the time of the offence, a black youth who was raised by his mother for the most part as a single parent. His father has had minimal involvement in his life.

K.D. has no prior youth record. He was not on probation or bound by any kind of court order when he committed the offence. His mother ensured that he was involved in sports as he grew up, which no doubt helped to keep him out of trouble.

K.D. experienced racism in elementary school. He had counselling for depression as a child. It was suggested to his mother that he may have ADHD. Unfortunately, this was never investigated.

K.D. began to use drugs, particularly cannabis, at a young age. It is posited that this may be linked to issues with anxiety. His drug use interfered with his motivation to attend high school classes. He became involved with negative peers who were connected to a gang. By the summer of 2023, there were times when he did not come home. He was, however, still living at home. He was not independent of his mother.

With respect to his conduct since the offence, K.D. has taken positive steps while in pre-disposition custody. He completed additional high school credits. He participated in counselling. He has not had behavioural problems while in custody, notwithstanding that he was assaulted by other youths. His mother, who is in constant contact with him, said that she has seen signs of his growth as a person. Both the s. 34 assessor and his Reintegration Counsellor had positive things to say about him, although they emphasized that he needs to stay away from negative influences and from drugs. K.D. is prepared to continue in counselling, including for substance abuse, and to attend school. He expressed his intention not to associate with negative peers going forward. In the courtroom, in addition to his guilty plea, he expressed remorse for his behaviour. He said that he has learned about accountability and making choices. He is dedicated to making better decisions in the future. All of this reflects a maturity that he did not have at the time of the offence.

I conclude that the Crown has not rebutted the presumption of K.D.’s diminished moral blameworthiness.

(b) The Accountability Prong

Notwithstanding my conclusion about s. 72(1)(a), I will also address s. 72(1)(b), the accountability prong.

The Crown has failed to satisfy me that a youth sentence would not be of sufficient length to hold K.D. accountable for his offending behaviour, for the following reasons.

Under this second prong of s. 72(1), I am to consider whether a youth sentence would be proportionate to the level of moral blameworthiness to hold the young person accountable: see, R. v. Chol, 2018 BCCA 179. While many of the factors I have already addressed apply, they apply differently under this prong.

For a sentence to hold a young person accountable, it must be long enough to reflect the seriousness of the offence and the offender’s role in it, and it must be long enough to provide reasonable assurance of the offender’s rehabilitation to the point where they can be safely integrated into society: see, R. v. H. (C.T.), 2015 MBCA 4. If a youth sentence would not be long enough to achieve both of these goals, an adult sentence must be imposed.

Under s. 42 of the YCJA I can impose a sentence that would place K.D. under custodial and/or community supervision for up to two years.

K.D, a 16 year old first offender, has been held in pre-sentence custody since December 11, 2023. This is a period of almost 15 months. While I must, under s. 38(3)(d), consider the time that he has spent in pre-sentence custody, unlike the sentencing of an adult offender I need not credit that time against the sentence imposed. The effect is that it can amount to time spent in custody that is additional to the youth sentence ordered. See, R. v. D.W., 2008 ONCA 268.

I also consider that K.D. has made positive progress in the youth facilities where he has been detained, even though he has been the victim of physical assaults, and notwithstanding challenges posed by his transfers between facilities.

I conclude that a youth sentence would be of sufficient length to hold K.D. accountable for his offending behaviour. It would be long enough to reflect the seriousness of the offence and K.D’s role as an accessory after, and it would be long enough to provide reasonable assurance of K.D’s rehabilitation to the point where he can be safely integrated into society.

I dismiss Crown counsels’ application for imposition of an adult sentence.

Issue #2: What is the Appropriate Youth Sentence?

Under the YCJA a custodial sentence can be imposed only if the circumstances fall within one of the four exceptions set out in s. 39. In seeking a custodial sentence for K.D., Crown counsel relies on s. 39(1)(d). Crown counsel does not assert that this specific offence of accessory after the fact meets the definition of “violent offence” as would be necessary for s. 39(1)(a) to apply. Sections 39(1)(b) and (c) have no application in this case.

Section 39(1)(d) permits a court to impose a custodial sentence in “exceptional cases” where the young person committed an indictable offence the aggravating circumstances of which are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles in s. 38. In R. v. R.E.W., para 44, 46, 53-54, the Court of Appeal for Ontario set out the following conclusions about the interpretation of s. 39(1)(d):

• The provision must be narrowly applied, because Parliament’s intention in enacting the YCJA was to reduce the over-reliance on custodial sentences for young people that resulted under the predecessor legislation.
• Section 39(1)(d) can be invoked only because of the circumstances of the offence, not the circumstances or history of the young person.
• By its reference to “exceptional cases”, the provision “is intended to describe the rare non-violent cases where applying the general rule against a custodial disposition would undermine the purpose of the YCJA.”
• “Exceptional cases” are “limited to the clearest of cases where a custodial disposition is obviously the only disposition that can be justified.”

The Court endorsed the determination in R. v. J.E.C., 2004 BCSC 1341, para 64, that the function of s. 39(1)(d) is to “introduce a sense of proportionality in exceptional cases where the circumstances of the offence are so aggravating that they outweigh what otherwise would be relevant considerations, such as the offender’s background or other forms of disposition.”

The aggravating circumstances of this offence are such that, for the purpose of imposition of a youth sentence, it is an exceptional case where only a custodial sentence is consistent with the purpose and principles set out in s. 38.

First, the objective gravity of the offence is a relevant consideration: see, R.E.W., at para 46. The seriousness of being an accessory after the fact to the offence of discharging a firearm with intent to wound, maim, disfigure, or endanger the life of another person is substantial. As discussed in Wisdom, a case concerning an adult offender, because accessoryship constitutes an interference with the administration of justice, adult offenders run a substantial risk of loss of liberty for a significant period of time. In fact, an adult found guilty of being an accessory after the fact to this offence would face a maximum sentence of seven years in jail. This underscores the objective seriousness of the offence.

Second, the circumstances of this offence of accessoryship render it serious. K.D. was present in the Casino lobby when the shooting occurred. He heard the gun discharge, and he saw the immediate aftermath. He knew that T.N.S. was the person who discharged the gun. He also knew that Mr. Ferdinand was significantly injured as a result. He did nothing to summon help. Notwithstanding his direct knowledge of what had occurred, K.D. assisted T.N.S. to escape from the Casino grounds and avoid immediate apprehension. It was K.D. and no-one else who operated the vehicle that took T.N.S. to safety as the police began to arrive.

Third, the factual context in which the shooting occurred is very aggravating. Although he was only 16 years old, K.D. was hanging around a Toronto club with a group of young men, at 3:15 in the morning. The behaviour of those with whom he was associating included confrontation with another group of individuals outside the club, forcibly ripping a necklace from the neck of a person on the street, and in the case of T.N.S., brandishing and then pointing a firearm at security personnel stationed outside the club. None of this prompted K.D. to leave the group and head home. Instead, he drove from Toronto to Pickering, in a vehicle that was not his. Then, knowing that T.N.S. had a handgun, K.D. joined him and other members of the group inside the Casino. He loitered there in the lobby for no apparent purpose, until 5:00 a.m. when the shooting occurred.

Fourth, the shooting of Mr. Ferdinand has had a profound impact on his family. While K.D. was not the shooter, the fact that he assisted T.N.S. to escape apprehension at the Casino has contributed to the distress experienced by those closest to Mr. Ferdinand.

I note that s. 39(2), which mandates consideration of alternative sentences before custody is imposed, does not expressly apply where s. 39(1)(d) is involved. Section 39(1)(d) itself requires a finding that a non-custodial sentence would be inconsistent with the purpose and principles of sentencing set out in s. 38.

To be clear, I am satisfied that the alternative to custody sought in this case by the defence, that of probation, would not be consistent with the purpose and principles of sentencing set out in s. 38(1). In particular, a non-custodial sentence would not be proportionate to the seriousness of the offence and the degree of K.D.’s responsibility for his offence. A custodial sentence is the only sentence that would promote a sense of responsibility in K.D. and an acknowledgement of the harm done to victims and the community.

Even though I have determined that this case is exceptional and falls within s. 39(1)(d), as the Court of Appeal pointed out in R.E.W., I must still consider the option of a deferred custody and supervision order under s. 42(5): see, R.E.W., at paras. 53-54.

Section 42(5) provides that a deferred custody and supervision order is available where the young person is found guilty of an offence other than one in the commission of which a young person caused or attempted to cause serious bodily harm; and it is consistent with the purpose and principles set out in s. 38 and the restrictions on custody set out in s. 39.

K.D.’s offence of accessoryship is not one in the commission of which a young person caused or attempted to cause serious bodily harm.

In deciding whether a deferred custody and supervision order is consistent with the purpose and principles set out in s. 38 and the restrictions on custody set out in s. 39, it is appropriate to look at the circumstances of the offender: see, R.E.W., at para. 54. I have already addressed the circumstances of the offence.

In the period leading up to the offence, K.D. was using drugs, was not attending at school, and was associating with persons who had gang affiliation. He ignored his mother’s curfew and stayed away from home at times. It seems that his mother could not control his behaviour. However, he has no youth record. He was not bound by any court order at the time of this offence. While in custody, he has matured, as already mentioned. He recognizes that his offence is serious, and he regrets the consequences of his behaviour. When he is released from detention, he intends to return to school, to take counselling, and to return to playing basketball. He will live with his mother, who has kept in constant communication with him. She is well aware of his offence and its circumstances. She told me that she will support any counselling recommendations that I make for K.D. She expressed that she wants to be a better mother to him.

I take into account that K.D. has been in custody for almost 15 months, which is a lengthy period for a first offender with no record. He was assaulted several times by other detainees, through no fault of his own. That should not have happened to him. It is unacceptable that a youth held in pre-trial custody is exposed to any degree of physical harm. Additionally, because K.D. was moved between different youth facilities, again through no fault of his own, it was difficult for him to complete high school courses. The psychological report indicates that his stay in custody has contributed to an anxious and depressed mood.

I find that in light of the progress K.D. has made in pre-sentence custody, a deferred custody and supervision order followed by a period of probation would be sufficient to promote a sense of responsibility in him and also an acknowledgement of the harm done to victims and the community. It will hold him accountable, promote his rehabilitation and reintegration, and prevent crime by referring him to programs and community agencies such as those referenced in the s. 34 report in order to address the circumstances underlying his offending behaviour. It is a sentence that it is consistent with the purpose and principles set out in s. 38 and the restrictions on custody set out in s. 39.

Conclusion

K.D., please stand.

I impose a 6 month deferred custody and supervision order, followed by 12 months of probation.

The conditions of the deferred custody and supervision order are the mandatory conditions and in addition, subject to comment by counsel, the following:

1. Reside with your mother.
2. Be in your residence from 10:00 p.m. to 6:00 a.m. daily except for any medical emergency involving you or a member of your immediate family, or for any other reason approved by the provincial director in writing in advance.
3. Attend school, or any other place of learning or training approved by the provincial director. This includes virtual attendance.
4. Remain within Ontario.
5. Not attend at 888 Durham Line, Pickering.
6. Attend such assessment, counselling, or rehabilitative programs as recommended by the provincial director, including for substance abuse, and not stop them without the provincial director’s prior written permission.
7. Sign any release of information forms to enable the provincial director to monitor your progress in programs.
8. Have no contact direct or indirect by any means with the persons named in the formal Order.

The conditions of probation are the mandatory conditions and in addition, subject to comment by counsel, the following:

1. Report to a youth worker within 2 working days of completing your deferred custody and supervision and after that as required.
2. Reside with your mother.
3. Be in your residence from 12 midnight to 6:00 a.m. daily unless in the presence of your mother, or for any medical emergency of yourself or a member of your immediate family, or for any other reason approved by the youth worker in writing in advance.
4. Attend school, or any other place of learning or training approved by the youth worker. This includes virtual attendance.
5. Not attend at 888 Durham Line, Pickering.
6. Attend such assessment, counselling, or rehabilitative programs as recommended by the youth worker, including for substance abuse, and not stop them without the youth worker’s prior written permission.
7. Sign any release of information forms to enable the youth worker to monitor your progress in programs.
8. Have no contact direct or indirect by any means with the persons named in the formal Order.
9. Not possess any weapons, ammunition, prohibited ammunition, prohibited device, or explosive substance.

There is a DNA order, and a weapons prohibition order for two years.

I order release of the s. 34 report and the pre-sentence report to the provincial director, and anyone involved in your supervision.

Released: March 7, 2025

NOTE: As noted in court, on the record, this written decision is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record in the event of any discrepancies between the oral and written versions.