CITATION
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
A.D.
Accused
Alicia Chiesa for the Crown
Michael Smith and Nemee Bedar for A.D.
HEARD: January 13, 14, 14, 17, 2025
Oral decision given February 4, 2025
Publication Ban
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.
I. Overview
1On August 10, 2021, Creflo Tansia was hanging out with friends. A group of eight males walked up to Mr. Tansia and his friends. They were forty meters away from him when four males in the group produced handguns and opened fire. A bullet struck Mr. Tansia in the head and killed him. A second bullet struck Sammy Musoni, but he survived. Following the shooting, members of the group posted a photo which appears to celebrate their conduct, but it is unclear if they knew Mr. Tansia had died.
2Mr. Tansia was about to turn 22 years of age when he was murdered. He comes from a family of gifted writers who have filed lengthy, eloquent, and heartfelt expressions of grief and anger about his senseless death. In their victim impact statements, they describe who Mr. Tansia was as a person and what he could have become. His family described Mr. Tansia as a smart, kind, creative, thoughtful, and driven young man. On the day of his death, Mr. Tansia was enrolled as a business student at La Cite Collegial and had just collected his student number in anticipation of his attendance there in the fall. Mr. Tansia was headed to do painting and construction work on a music studio that he was about to open with his friend when he stopped by a building. He was standing amongst friends when the group of young men, including A.D., approached him and mercilessly fired shots at the group in broad daylight.
3Mr. Tansia’s death has torn apart his family. Below, I discuss in further detail, not only the tragic loss of life, but the devastating impacts of his death on members of his family individually and collectively.
4Of the group of young men that opened fire, only one person was ever apprehended by the police and that is the accused A.D. On August 25, 2021, following the release of a Canada wide warrant seeking his arrest, A.D. turned himself into the police with the support of his brother and mother. A.D. has been in custody since that time. A three-week trial was originally scheduled for January 2024, but on January 9, 2024, A.D. pled guilty to second degree murder. An Agreed Statement of Facts, set out below, was read into court.
[5] The sentencing was adjourned to allow the parties to obtain a pre-sentence report and a forensic psychiatric assessment of A.D. pursuant to s. 34 Youth Criminal Justice Act, S.C. 2002, c.1 (“YCJA”). Upon the reviewing the forensic psychiatric report of Dr. Brad Booth (hereinafter S. 34 Report or Dr. Booth’s Report) the Defence sought and obtained an Intensive Rehabilitative Custody and Supervision Suitability Assessment, commonly referred to as an IRCS Report.
6A.D. was 17 years and 10 months at the time he committed the murder. Given he is under 18, the presumption is that he would be sentenced as a young person The maximum period of custody that can be imposed for a youth convicted of second degree murder under the YCJA is seven years consisting of four years custody and three years of community supervision: s. 42(2)(q)(ii). Defence seeks a youth sentence of seven years with A.D. receiving one-year pre-trial custody credit for the 3 ½ years he has been in custody since his arrest in 2021.
[7] The Crown, on the other hand, seeks that A.D. be sentenced as an adult. Following his guilty plea, the Crown filed an application pursuant to s. 64(1) YCJA to have A.D. sentenced as an adult. The sentence for second degree murder for an adult is a life sentence. A person convicted of second degree murder who was sixteen or seventeen at the time of the offence may not apply for parole for at least seven years: s. 235 and 745.1(c) Criminal Code.
8In support of their position to have A.D. sentenced as an adult, the Crown relies principally on the serious nature of the offence, that A.D. was just shy of 18, A.D.’s prior criminal history and earlier struggles on probation, and the claim that A.D. was sufficiently mature to be making decisions akin to an adult at the time of the crime. The Crown argues that these factors are sufficient to rebut the presumption of diminished moral blameworthiness accorded to young persons. In addition, the Crown argues a youth sentence of seven years even without pre-trial custody would be of insufficient length to hold A.D. accountable for this crime.
9Defence opposes the application. They argue that the Crown has not rebutted the presumption of diminished moral blameworthiness and the grounds for sentencing A.D. as an adult are not met. They highlight Dr. Booth’s findings with respect to A.D.’s maturity and cognitive deficits as well as the fact that A.D. has excelled while in custody both with respect to programming and academics. Defence highlights the testimony of those who have been working most recently with A.D., including staff from the William Hay Institute, to illustrate the progress he has made and his potential for rehabilitation. Finally, Defence relies on the recommendations of Frances Aubertin, A.D.’s youth probation officer, and Tia Wilt, IRCS Director and Manager of Probation Services in Ottawa and Hawkesbury, who have both recommended A.D. for an IRCS sentence under the YCJA.
10If imposed, an IRCS sentence would not change the sentence calculation under the YCJA but would make available additional funding and supports for rehabilitative measures while A.D. is serving the youth sentence. A.D. has met the criteria for an IRCS order under s. 42(7) of the YCJA and an IRCS plan has been put forward by the Youth Probation Office.
[11] Additionally, if a youth sentence is imposed, A.D. will be an adult at the time of sentencing and consequently, he will be required to leave the youth detention center and serve that sentence at an adult correctional institution: s. 89(1) YCJA. Director Wilt testified that should this Court impose an IRCS sentence, she has received confirmation from the Office of the Solicitor General for Ontario that A.D. would be transferred to Ottawa Carleton Detention Center (“OCDC”), an adult provincial correctional institution, and that OCDC would work with Youth Probation Services to permit A.D. to access to the programming and services available to him under the IRCS program.
12The issues to be decided are:
a. Has the Crown met its onus in establishing that A.D. should be sentenced as an adult rather than a youth? If yes, A.D. would be sentenced to life imprisonment.
b. If no, what is a fit and appropriate sentence for A.D. under the YCJA and should A.D. be ordered to serve an IRCS sentence?
13All legislative references are to the YCJA unless otherwise stated.
II. Evidence considered
14In arriving at my decision, I considered the following evidence and information:
Agreed Statement of Facts;
Photo of accused with 4 other males;
Video compilation of timeline and events;
Curriculum Vitae of Forensic Psychiatrist Dr. Booth;
Section 34 Report dated August 21, 2024, prepared by Dr. Booth;
Records provided by Josh Torres Youth Services Bureau of Ottawa;
Pre-Sentence Report dated August 2, 2024;
IRCS Intensive Rehabilitative Custody and Supervision Suitability Assessment dated August 6, 2024;
Crowns application record on sentencing;
William E. Hay institutional records;
Victim Impact Statements;
Defence support letters;
Defence application record; and
A.D.’s statement read to the Court.
15In addition, I heard testimony from the following witnesses: Dr. Booth; Probation Officer (“P.O.”) Schmid; P.O. Frances Aubertin; Director Tia Wilt; Staff from William Hay Institution: Patricia Denis, Trevor Dikens, Campbell Douglas, and Thomas McKeowan.
III. Agreed Statement of Facts
16A.D. admits the following facts:
a. On August 10, 2021, at 8:20 p.m. Mr. Creflo Tansia was hanging out with some friends outside of 101 Beausoleil Drive. At that point, a group of eight males walked in to view 40 metres away.
b. Four of those males produced handguns and opened fire in the direction of a group of people. Mr. Tansia was standing among this group. A bullet struck Mr. Tansia in the head and killed him. Another person, Sammy Musoni, was also struck in the head by a bullet but survived.
c. The eight males then fled the scene at first together and then in two groups of five and three.
d. Ottawa Police investigators recovered videos from 101 Beausoleil and various other cameras in the Lowertown area of Ottawa where this took place. A compilation of these videos is filed as an exhibit to this plea.
e. Ottawa Police also received information that some of the people involved in the shooting were from the Donald Street area.
f. This led investigators to collect videos from the two Donald St. apartments. The analysis of those videos revealed the following:
i. On August 10, 2021, at 5:33 pm, A.D. is captured on video getting on the elevator of a building where he lives with his mother and sisters. He makes his way to the lobby and out of the apartment where he leaves the area.
ii. He is seen wearing similar clothing to one of the suspects who had fired a handgun towards Mr. Tansia and his group. Specifically, Fila branded slides, two toned shorts, short black socks with a distinctive light colored stripe across the ankle and heel with white tipped toes, and a dark Michael Kors hoodie with stripes and a logo or button on the left chest area. He is unmasked.
g. At around 8 p.m. on August 10, 2021, Lukas Normandeau saw a group of 8-10 individuals arrive in the Lowertown area of Ottawa. The group appeared to him to be overdressed for a hot summer evening. The group arrived in a gray sedan and a white SUV in the area of Augusta street and Besserer street. Mr. Normandeau eventually matched these people to the group of shooters captured on video at 101 Beausoleil.
h. Video surveillance at High Ties on Rideau Street shows a group of eight individuals walking together with their faces covered, some by surgical masks, and hoods up.
i. They walk approximately five hundred meters towards a housing project in Lowertown and focus their attention on several people gathered in front of 101 Beausoleil.
j. Four individuals pull out handguns and open fire towards the group gathered outside of 101 Beausoleil.
k. The accused can be seen pulling out a handgun, pointing in the direction of the group gathered outside of 101 Beausoleil and firing. It is unknown how many shots he fired or where they landed.
l. One of the bullets fired by the accused person and the other males in the group struck Creflo Tansia in the head and killed him. It is unknown which of the armed shooters' bullet was the one to strike and kill Creflo Tansia.
m. Another bullet struck Sammy Musoni in the head. Mr. Musoni told police and first responders that he had removed the bullet himself. He received treatment by attending paramedics and later at the Civic Hospital. He had a laceration at the back of his head which was flushed and stapled. While debris was observed in his scans, the doctors were unable to locate and remove the debris.
n. Twenty-seven shell casings were recovered from the crime scene in the immediate vicinity of where the accused and other males in the group are seen on video shooting their handguns towards the unsuspecting group.
o. There was no return fire. The only evidence of gunfire recovered from outside the housing unit where Mr. Tansia was hanging out were fragments of bullets.
p. Once they'd fired multiple rounds in seconds they flee the immediate scene together, eventually splitting up into two groups and leaving the Lowertown area of Ottawa.
q. Some of them are observed leaving in the same vehicles they had arrived in. Others, including the accused, are captured on video walking away once at a safe distance. The accused at one point can be seen with the handgun in his hand before putting it away into his pocket again.
r. The accused was later seen with a group of males at 1500 Walkley Road, the last known address of Sammy Musoni. It is unknown if the accused knew this information. They are observed gathering in front of the main entrance for approximately five minutes. The males posed with one another for a photo. The picture taken was then shared on the social media platform, SnapChat. This photo is also filed as an exhibit.
s. Several videos of this gathering are included in the compilation video.
t. The accused was captured in still images in the lobby of an apartment complex in Ottawa. on August 10th and 11th. Several witnesses recognized him in these images based on their prior interactions with him.
u. Similarly, his youth probation officer Christian Schmid recognized him from the same images.
v. The accused was bound by two probation orders at the time of this offence.
w. He was 17 years and 10 months old at the time of the offence. He was born in 2003.
x. Upon becoming aware of the Canada-wide warrant and after having his name and identity published in the media, the accused took no steps to flee. Instead, on August 25, 2021, he attended at the police station with the support of his brother and mother to turn himself in.
y. He has remained in custody since that date after being denied bail.
z. The Crown is not seeking to prove that the accused was directing this group of males on August 10, 2021.
IV. Issue 1: Should the court impose an adult or youth sentence?
[17] Pursuant to s. 64(1), the Crown may apply to have a young person serve an adult sentence. The court must hold a hearing: s. 71 YCJA.
[18] The onus is on the Crown to satisfy the court that the conditions for an adult sentence have been met: s. 71(2) YCJA.
19To sentence a youth as an adult, the court must be satisfied pursuant to s. 72(1) that:
(a) the presumption of diminished moral blameworthy or culpability of the young person is rebutted; and
(b) the youth sentence imposed is in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and s. 38 YCJA would not be of sufficient length to hold the young person accountable for his or her offending behaviour.
20Section 3(1) sets out Canada’s policy on the youth criminal justice system. The policy stipulates that young persons must be held accountable through measures that are proportionate to the seriousness of the offence and their degree of responsibility as young persons while ensuring the rehabilitation and reintegration of young persons into society: 3(1)(a) YCJA. Section 3(1)(b) emphasizes that youth and adult justice systems are distinct, and the youth system is based on the principle of diminished moral blameworthiness for youth. The provision reads:
3(1)(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:
(i) rehabilitation and reintegration,
(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,
(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,
(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and
(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;
21The principles of sentencing governing youth are further set out in s. 38.
38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.
(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:
(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;
(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;
(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;
(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;
(e) subject to paragraph (c), the sentence must
(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),
(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and
(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community;
(e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if
(i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1),
(ii) the young person will reasonably be able to comply with the condition, and
(iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and
(f) subject to paragraph (c), the sentence may have the following objectives:
(i) to denounce unlawful conduct, and
(ii) to deter the young person from committing offences.
(3) In determining a youth sentence, the youth justice court shall take into account
(a) the degree of participation by the young person in the commission of the offence;
(b) the harm done to victims and whether it was intentional or reasonably foreseeable;
(c) any reparation made by the young person to the victim or the community;
(d) the time spent in detention by the young person as a result of the offence;
(e) the previous findings of guilt of the young person; and
(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.
22These principles apply in determining whether A.D. should be sentenced as a youth or an adult, and additionally, in determining a fit and appropriate sentence under the YCJA.
23Additionally, the court is entitled to consider a broad range of factors in determining whether to impose an adult sentence under both prongs of the test. These include the age, maturity, character, background, and previous record of the young person. I discuss these factors below as they apply to A.D. both with respect to the first and second prongs of the test.
A. Has the Crown rebutted the presumption of diminished moral blameworthiness or culpability of the young person?
24The Supreme Court of Canada held in R. v. B. (D.), 2008 SCC 25 at para 41 that the presumption of reduced moral blameworthiness is founded on the premise that a young person has “heightened vulnerability, less maturity and a reduced capacity for moral judgment”.
25The focus of the inquiry with respect to the first prong of the test under s. 72(1) is the maturity of the accused. To rebut the presumption of diminished moral blameworthiness, 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: R v W.M., 2017 ONCA 22 at para 98.
26In this regard, the court must consider both the circumstances of the offence as well as of circumstances of the offender and the age, maturity, and background of the young person: R v W.M., at para 105-107; R v J.D., 2022 ONSC 7282 at para 51-52.
i. The circumstances of the offence
27The mens rea for murder incorporates a high degree of moral blameworthiness. In this case, there is a video tape of the shooting which shows A.D. among a group of young men opening fire on an innocent group of youth. Multiple shots were fired, and one shot was lethal.
28The Crown emphasizes that the offence was planned or premeditated which would attach an even higher degree of moral blameworthiness. In this regard, the Crown relies on the British Columbia Court of Appeal decision in Chol where the court lists whether an offence was planned or premediated as a factor for consideration in assessing the circumstances of the offence and imposition of an adult sentence: R v Chol, 2018 BCCA 179 at para 61.
29I agree that murder undoubtedly incorporates a significant level of moral blameworthiness, but I am not prepared to find that the murder in this case was planned or premediated for two reasons. First, A.D. has not pled guilty to first degree murder or admitted in the Agreed Statement of Facts that he planned the murder. Second, the Crown has not called evidence to establish beyond a reasonable doubt that the murder was planned or premeditated.
30In addition, the circumstances of the offence also include whether the youth took steps to follow through with or cover up the offence. The circumstances must be assessed to determine whether the actions of the young person are indicative of impulsivity, bravado, or invincibility and whether they demonstrate critical thinking and adult like judgment: R v J.D. at para 52.
31Here, I find A.D.’s lack of maturity is reflected in his post-offence conduct. Immediately following the shooting, A.D. fled with the other members of the group. Some went in cars and others, like the accused, were seen walking away from the scene. Later, the group reassembled outside the last known address of Sammy Musoni, but it is unknown if the accused knew this information. The males posed with one another for a photo which they shared on SnapChat. This conduct indicates that A.D. is not taking steps to hide his conduct. I find this conduct reflects a lack of maturity, understanding, and insight into the seriousness of his criminal conduct or its consequences which is something one would expect of someone exercising adult judgment.
ii. Circumstances of the offender
32Relevant factors related to the circumstances of the young person include the age, record, background and antecedents of the young person, the young person’s vulnerability to influence by others, whether the young person was living like an adult at the time of the offence and any cognitive limitations or emotional or mental health issues: R v. J.D. at par 53.
33The Court in Chol cautioned, however, that cognitive limitations or emotional or mental health concerns should not overwhelm the analysis because the presumption is founded on reduced moral culpability because of youthfulness: R v J.D. at para 53; R v Chol at para 61.
34A.D. is currently 21 years of age. He was born in Egypt, but his family moved to Burkina Faso shortly after. He is one of seven children in his family and has three older brothers and three younger sisters. His father passed away suddenly when he was eight, and A.D. was not comfortable speaking of his father’s death with the probation officer. Dr. Booth reviewed A.D.’s exposure to various traumas in his early years including memories of hearing gunshots in his home country, living in a home that fell on him, witnessing stabbings and people being burned alive, and finding his own father deceased. Dr. Booth reports that A.D. has symptoms consistent with PTSD from these traumas which have never been diagnosed or treated.
35As highlighted in the materials filed, A.D. came to Canada in 2017. He was 14 at the time and not long after, he became involved in the criminal justice system. He reported to Dr. Booth that he did not socialize with schoolmates and “hated people at school.” He ended up hanging out with guys from his neighbourhood. He agreed that some associates were part of a gang but would not offer names. He explained that he would not necessarily seek contact with these people, but when they came to get him after school, he would go along with them. A.D. was the youngest in the group.
36A.D. struggled academically while in Africa and was regularly beaten. Dr. Booth diagnosed him with ADHD which could also have been a factor in his struggles at school. His academic struggle continued in Canada. A review of his high school report card indicates a variety of marks that fall within a range of low scores. In addition, A.D. was bullied at school and did not fit in. He appears to have lacked confidence. His brother described him as a “follower.” Over time, he missed more school and eventually, by the fall of 2020, he stopped attending altogether.
37A.D. acknowledged that he started to drink, smoke, and vape, and was introduced to Percocets by his peers. At the time he was arrested, A.D. was addicted to Percocets and using three of four per day. Added to this fact was that A.D. lived in a residential area where young people are known to be involved in criminal activity.
38The Crown argues that the closer a young person is to the cut-off age of eighteen at the time of the offence, the lesser the impact of the statutory presumption: R v Pratt, 2007 BCCA 206 at para 57. In this case, A.D. was just 1 month and 19 days shy of his 18th birthday.
39I find, however, that age alone is not determinative. One must also consider the mental and psychological development of the young person at the time of the offence. As stated recently by the Ontario Court of Appeal, when sentencing youth or young adult offenders, judges must account for the accused’s maturity which mitigates culpability but does not excuse their dangerous actions: R v Habib, 2024 ONCA 830 at para 7. While the Court of Appeal in Habib was addressing sentence for firearms’ offences of an appellant who had just turned 19, they noted that the maturity of the offender remains a factor for consideration in sentencing both youth and youthful adult offenders: Habib at paras 7; 33-35, and 56.
40Dr. Booth testified that the human brain does not fully develop until around the age of 25. This psychological reality means that although a youth is nearing the age of eighteen and in legal adulthood, their cognitive abilities may not be fully developed. More specifically, Dr. Booth described A.D. as a person with a mild intellectual disability which made him vulnerable to negative peer influences. In his s. 34 Report, Dr. Booth found that A.D. was psychosocially immature with high susceptibility to peer pressure and increased risk-taking behaviors. Based on various testing, Dr. Booth found that A.D.’s IQ and adaptive behavior range was extremely low. Dr. Booth’s concluded that A.D.’s profile is suggestive of an intellectual disability in the mild range. Dr. Booth provided the following description of A.D. heading into the offence:
Heading into the index offences, [A.D.] had fallen into an antisocial peer group of older individuals. He has started using substances and doing lower level crime with them. He increased his substance use and likely was having ongoing struggle at school. He was very vulnerable to peer influence and likely, his intellectual disability would have caused further issues understanding and seeing the situation for what it was. He appears to have had some PTSD develop and depression, possibility prior to his arrest, which would have further caused him problems.
41Dr. Booth’s evidence establishes that A.D.’s cognitive abilities were a contributing factor in his conduct leading up to the offence. Hence, notwithstanding that A.D. was approaching the age of eighteen at the time of the offence, Dr. Booth’s findings support rather than rebut the presumption of diminished moral blameworthiness.
42The Crown argues that A.D. was making “adult choices” prior to the time of the offence because he was not attending school and choosing to live between his mother and brother’s home. I respectfully disagree. Truancy does not make one an adult. On the contrary, I agree with Defence that missing school is more suggestive of a youthful perspective where one does not fully appreciate the value of an education or apprenticeship. Furthermore, this was not a situation where A.D. was living independently but remained dependent on his mother and brother as caregivers. A.D. had no money, no bank account, and certainly no apartment of his own. He was dependent on his brother for employment and worked for him doing deliveries after he stopped going to school. The fact that he chose to go between two homes that were minutes apart is not indicative of someone choosing to live freely as an adult, but rather of dependency.
43Finally, the Crown suggests that because A.D. was able to use public transportation and take care of his personal hygiene, it is reflective of adult maturity. Again, I disagree. There are youth and children under twelve that can take the bus to school and look after their hygiene. I fail to see how this is suggestive of a well-developed adult mind.
44The youth’s conduct after the offence and growth since the time of the offence can also be a relevant factor in determining their maturity: Chol at para 61.
45Before addressing A.D.’s progress since the time of the offence, it is important to note A.D.’s prior youth record. On August 18, 2020, A.D. pled guilty to using an imitation firearm contrary to s. 85(2)(a) and was sentenced to 18 months’ probation. On December 2, 2019, A.D. was convicted of simple possession of 4.2 grams of crack cocaine contrary s. 41 of the Controlled Drugs and Substances Act, SC 1996, c. 19, and sentenced to 12 months’ probation.
46The Crown relies on the evidence of P.O. Schmid who was working with A.D. during his probationary period before the murder. P.O. Schmid testified that he made multiple attempts to engage A.D., but A.D. would not follow through on the programming or services offered. A.D. refused to share information with P.O. Schmid and at times with his own family. I find the probation reports filed for the period before the offence illustrate that A.D. was a teenager struggling socially, academically, and emotionally, had substance abuse issues, did not appear to be exercising reasoned judgment, and was not fully engaged with probation services.
47The description of A.D. provided by P.O. Schmid is in stark contrast to the description of A.D. provided by staff from William Hay Institute and P.O. Aubertin who have been working closely with A.D. during his 3 ½ years of pre-trial detention. Patricia Denis who has been employed as a case manager at William Hay for 13 years described A.D. as a resident who worked hard daily at school and was motived to graduate. Her delight in his progress was evident when she learned during examination in chief that A.D. had obtained his final two credits for his high school diploma. Ms. Denis testified that A.D. participates in programming and recreation. He is polite with staff and always says hello. She also testified that A.D. is operating on the “Achievement level” which is the highest ranking available at the institution.
48Ms. Denis noted in her Progress Report dated June 26, 2024, that A.D. has become a “leader” in his unit. He is seen as a mentor to lower functioning youth in the unit and takes the time to play cards and games with the younger residents. Ms. Denis testified that A.D. could voice his view in a productive and respectful way. For example, A.D. suggested to her that the institution develop an anger management program for the residents, and upon his initiative, they designed one together. When one compares A.D.’s behaviour, motivation, and therapeutic progress while in detention to his inferior performance on probation prior to the offence, it suggests that A.D. was not a mature young adult at the time of the offence but appears to be gradually growing into one while in detention: R v MW, 2017 ONCA 22 at para 130 to 131, leave to appeal ref’d 2017 SCC 109.
49The Crown filed evidence of the accused’ misconduct while in pre-trial detention. They argue that his continued misconduct at William Hay suggests that his youthful impulsivity and underdeveloped emotional regulation prior to the murder were not significant factors in the commission of the offence:
50I highlight below some of the incidents as testified to by the WH staff.
a. Trevor Dickens has been employed at William Hay for 26 years and has been a Coordinator for the last 4 years. On July 16, 2024, he heard code red, went to the education wing, and observed a whole lot of bodies and staff in hallways. He felt a hand over his shoulder and saw A.D. standing behind him and trying to reach over. He grabbed A.D.’s arm and pushed him back. He and another coordinator placed A.D. in a secure room. He testified he had no idea what the context of the brawl was or who amongst the ten youth involved had started it. He acknowledged A.D. did not struggle with him or any other member of staff. He did not observe any injuries and there were no further discussions about the incident.
b. Campbell Douglas has been youth worker at William Hay for 3 years. He corroborated Mr. Dicken’s account. He also could not state what the cause of the brawl was. In addition, Mr. Douglas explained that William Hay can have up to 32 youth at the detention center, but at the time they had 24. He noted that the youth come to William Hay from different neighbourhoods and have pre-existing rivalries that can escalate. Mr. Douglas testified that in his limited observations of A.D., he noted he was an older youth and well respected. He observed that if others were upsetting the balance, A.D. would speak with them and try to deescalate the situation.
c. Thomas McKeown has worked at William Hay for 3 years. He testified about an incident on May 25, 2023. A.D. came into the unit after being transferred from another facility and did not appear to be pleased about it. They were in the common area together. At one point, A.D. asked for permission to go the bathroom. Upon returning, A.D. launched at a resident who was watching tv and attempted to assault him. A.D. was unable to land a strike. Mr. McKeown intervened and told A.D. to let go. He was able to restrain A.D. Mr. McKeown testified that this was a normal occurrence in this kind of institution. He acknowledged in cross-examination that A.D. could have been upset that he was coming back and being placed in a unit that he did not want to be in. After the incident, he was in fact moved to another unit. No charges were laid.
d. The William Hay Institution records indicated that there was also an incident on March 30, 2022, where A.D. sprung from a school desk and struck another youth on the left side of the head. The victim had swelling around his left eye. A.D. accepted the consequence without issue.
e. There are also reports that while in custody in 2022 and 2023, contraband in the form of marijuana vapes was found in A.D.’s cupboard or in his unit of eight people.
51I have considered these incidents in arriving at my decision and do not find them determinative on the issue of whether he should be granted an adult sentence. I do not find that just because A.D. found himself involved in other incidents with youth, many of whom would have had challenges like A.D., undermines Dr. Booth findings with respect to A.D.’s intellectual maturity at the time of the offence. On the contrary, some of the incidents, for example the brawl of July 2024, appear to be the product of continued youth impulsivity.
52I also note that notwithstanding these occurrences which were brought to the attention of Dr. Booth, P.O. Aubertin, and Director Wilt, all three of them recommenced A.D. as a candidate for an IRCS sentence.
53In his s. 34 Report, Dr. Booth diagnosed A.D. with ADHD, dysthymia, depression, social and general anxiety. Since A.D. had not been previously diagnosed or treated, Dr. Booth recommended a trial run of medications for ADHD and counselling. Dr. Booth suggested that if counselling does not work then treatment with medication is also an option.
54The Crown highlights that A.D. has refused to sign a medical consent form while at William Hay suggesting that one, he is exercising adult judgment over decisions that affect him, and two, that an IRCS sentence would not be workable for him.
55I find the evidence in relation to A.D.’s consent and access to medical treatment is mixed. There is evidence that initially, A.D. did sign a medical consent form. Later, when he returned to William Hay after a stay at another youth detention center, A.D. refused to sign the medical consent form. Consequently, Ms. Denis understood from her management that A.D. was not entitled to obtain medical or dental treatment, but notwithstanding the absence of a consent form, she observed that A.D. received medical and treatment while at William Hay. More importantly, the absence of medical consent has not impeded A.D. from accessing therapy and programming.
56I find A.D.’s historical lack of medical consents is of little consequence. Director Wilt was aware of this issue when she spoke to A.D. about the proposed IRCS plan. She explained to A.D. that if the forensic psychiatrist ordered him to take medication as part of his rehabilitative plan, he would be required to do so as a condition of the IRCS program. A.D. informed her that he would comply. Director Wilt testified that she was satisfied that A.D. understood this condition and would comply with the request.
57Upon consideration of the whole of the evidence, I find that the Crown has not provided sufficient evidence to rebut the presumption of reduced moral blameworthiness. I find that A.D.’s choices, while severe, arose in the context of peer influence and cognitive immaturity that is consistent with diminished moral blameworthiness and culpability.
B. Would a youth sentence be insufficient to hold A.D. accountable for his behaviour?
58As already noted, s. 38(1) establishes that in sentencing youth, the court must focus on maintaining accountability for the youth in a manner that promotes their rehabilitation and reintegration into the community.
59The Crown argues that the maximum seven-year youth sentence in this case even without credit for pre-trial custody is insufficient to hold A.D. accountable for his behaviour. The Crown relies on A.D.’s youth criminal record and A.D.’s assertion that he does not believe in therapy.
60The Crown highlights that at the time of the offence, A.D. was on probation for conviction arising from the use of an imitation firearm. On July 18, 2019, A.D. pointed a pellet gun towards the ground but in the direction of the victim. The victim believed it was a real firearm and called the police. A.D. dropped the pellet gun upon police arrival. The pellet gun was not loaded except for one jammed pellet and would not have been operational at the time of his possession. A.D. pled guilty to the offence and was sentenced to 18 months’ probation.
61The Crown highlights that during a conversation with his probation officer, A.D. stated that the victim made him feel threatened when he came up behind him suggesting his unwillingness to take responsibility for his conduct. However, I find that just because A.D. proffered an explanation for his conduct does not undermine that he pled guilty and took responsibility for his conduct.
62In December 2019, A.D. was arrested for possession of two oxycodone pills, a functional cell phone, and $55 in currency. While he pled guilty to simple possession, A.D. acknowledged in his interview with Dr. Booth that that he had run drugs for a gang in/around this time.
63The Crown highlights that A.D. was unwilling to speak frankly with P.O. Schmid about his gang associations suggesting an unwillingness to take responsibility for his conduct. As already noted, while under the supervision of P.O. Schmid, A.D. was struggling at multiple levels. It comes as no surprise to me that in these circumstances, he would be unwilling to disclose to a person of authority his continued affiliations, if any, with other gang members.
64In considering the appropriateness of a youth sentence, I have also considered that A.D. has pled guilty to the offence of second degree murder and has expressed significant remorse for his conduct: Chol at para 61. During the sentencing hearing, A.D. read a five-paragraph letter he wrote to the Court and that he had prepared without the assistance of his counsel expressing his responsibility for his conduct, his remorse to the family, and his commitment to bettering himself for the future. Below I quote an excerpt of that letter:
…I’m no there to make excuses for myself, there’s no excuse for what I did, and I carry the weight on my shoulders every day. My remorse is since runs deep, I acknowledge the suffering I’ve caused and spend the rest of my life trying to make amends. I can not undo the past but I can commit to changing my future and ensuring that I never repeat the mistakes I’ve made.
65Furthermore, after reading the letter, A.D. set it aside and turned to the father of the deceased who was participating at the sentencing hearing by Zoom and apologized to him and the family for his conduct. I find that A.D.’s expression of remorse was sincere and genuine.
66The Crown highlights that A.D. stated he does not believe in therapy which suggests he is not amenable to a rehabilitative sentence. I disagree. What is ironic is that notwithstanding that A.D. has made such a statement, he has been engaging in counselling and programming which are forms of therapeutic treatment. P.O. Aubertin reports that during his time in detention, A.D.:
a. completed all the courses he needed to graduate from high school;
b. participated in a wide range of programming in detention including cooking programs, fitness programs, music programs, Trade Center program, and attendance at Muslim services;
c. has become a mentor for others and led a youth counselling meeting in his unit;
d. is attending the Ontario Justice Education Network Training;
e. while initially reluctant to engage in counselling when he entered detention, has now met with psychotherapist Scott Rickman for five sessions and is reported to be engaged in the sessions and working on general counselling and discussion of past lived experiences;
f. met with the Anger Management counsellor Fabienne Glahid of the Youth Services Bureau and completed 31 sessions;
g. worked with his case manager Ms. Davis at William Hay to design a youth specific anger management program for residents; and
h. met with Mariam Salad at the Center for Resilience and Social Development and indicated a willingness to work with his organization upon his release to the community.
67The Center for Resilience and Social Development provides programming for immigrants, refugees, and marginalized youth in the City of Ottawa and would be available to assist with the conditional supervision portion of a youth sentence.
68In his s. 34 Report, Dr. Booth found that A.D. was amenable to treatment, and it is likely that such treatment would get him off the track of future offending. In the section on treatability, Dr. Booth reports at p. 32:
It is likely that [A.D.’s risk] would be significantly mitigated by appropriate support mentoring, and rules. His SAPRO suggests some significant protective factors that could be maximized. In addition, he does not have evidence of psychopathy. He shows guilt around the offences including for the victim, victim’s family, and for the harm he has done to his own family. He has good supports with his family and is finishing school. He has also developed some insights into the fact that his peers were “not real friends” and that his substance abuse was problematic.
Given the offence and overlay of mental health issues, the Court may want to consider pursuing an Intensive Rehabilitation Custody and Supervision Order (IRCS). This would allow ongoing supervision and mentoring with provision of appropriate financial and psychosocial supports. It is likely that this would get him off the track of future offending.
69Finally, as discussed in further detail below, the IRCS Report drafted by P.O. Aubertin found that A.D. is an eligible candidate for the IRCS sentence which is indicative of the fact that he is viewed as a person amenable to rehabilitation and treatment.
70General deterrence is not a sentencing principle under the YCJA: R v B.W.P.; R v B.V.N., [2006] 1 S.C.R. 941, 2006 SCC 27 at paras 4, 22-35. While sentencing under the YCJA may have a deterrent effect, and the court must consider all relevant factors about the offence and offender, “the YCJA does not permit the use of general deterrence to justify a harsher sanction that that necessary to rehabilitate, reintegrate and hold accountable the specific young person before the court:” R v B.W.P. at para 38.
71The YCJA also does not speak of specific deterrence. Rather, the YCJA seeks to address the circumstances underlying the offending behavior by rehabilitating and reintegrating persons accountable through the imposition of meaningful sanctions related to the harm: R v. B.W.P. at paras 4, 35-41.
72Upon consideration of the whole of the evidence, I find that a youth sentence would hold A.D. accountable through meaningful sanctions. A.D. has demonstrated that he is amenable to treatment and has made considerable progress in his rehabilitation while at William Hay. P.O. Aubertin has identified proposed treatment interventions that would be available to A.D. under an IRCS sentence. These treatment and counselling interventions would respond directly to the root cause of the A.D.’s offending behaviour, some of which was identified by Dr. Booth in the s. 34 Report.
73Furthermore, a youth sentence carries with it a strong community reintegration component that is focused on ensuring the accused’s successful return to the community. A.D. would be assigned a community reintegration worker who would support him with his transition back into the community and assist him in accessing services for education, employment, and even housing. A.D. has connected with the Center for Resilience and Social Development as an additional support to assist him with his return into the community. In short, the proposed programming would allow A.D. to build skills to facilitate his reintegration into the community and thereby minimize the risk of future offending behavior.
74Finally, while sentencing is an individualized process, I note that the factors present in the case of A.D. are akin to those present in cases involving other youths who committed second degree murder and who received youth sentences.
75In R. v. T.F.D., 2018 ONSC 389, the court denied the Crown’s application to impose an adult sentence for a youth offender. T.F.D. was 15 years and 9 months old when he shot and killed a victim unknown to him. T.F.D. pled guilty to second degree murder. The Crown applied for T.F.D. to be sentenced as an adult while Defence sought a seven-year IRCS sentence. The IRCS assessment found that T.F.D. was suitable for the IRCS program.
76When T.F.D. committed the offence, he had consumed alcohol, marijuana, and cocaine. He was alone. The killing occurred around 2:30 a.m. while T.F.D. attempted to rob two adults. T.F.D. used a sawed-off shotgun to commit the offence. He and a friend had previously purchased the rifle two months prior to the shooting but had not previously used it. On the night of the incident, “he was yearning for an adrenalin rush and just wanted to do something bad, to hurst someone, and to get some money from someone:” T.F.D. at para 26.
77The s. 34 report and IRCS assessment reported that T.F.D. was healthy, had supportive parents, and no learning disabilities. Despite this, T.F.D. began using marijuana around age 11 and harder drugs by age 12-13. By age 14-15, T.F.D. drank alcohol almost daily and experienced blackouts when he consumed both alcohol and drugs. He was an A/B student in school until he started drugs in Grade 6. He was mid-way through Grade 10 at the time of the shooting. Prior to the shooting, T.F.D. had not engaged with any mental health treatment or counselling. There was a history of substance abuse on the paternal side of his family, but T.F.D. refused his parents’ efforts to connect him with professional supports.
78The IRCS assessment noted that T.F.D.’s path to improvement was not always smooth. T.F.D. engaged in self-injurious behaviours at the youth detention facility such as punching walls and windows and banging his head on a mirror. T.F.D. attempted to purchase marijuana from another youth at the facility. Despite these negative behaviours, the IRCS assessment found that T.F.D. displayed insight into his behaviour and the impacts of the offence on the victim’s family. Other positive attributes included T.F.D.’s pursuit of education and demonstration of independence and resiliency. Consequently, the court held that the Crown failed on both prongs of the s. 72(1) test and failed to rebut the presumption of reduced moral blameworthiness or culpability under s. 72(1)(a). The court stated at paras 55 and 56 as follows:
55T.F.D.’s crime was horrendous. He was looking for trouble, for his “rush”, while high on drugs and alcohol. He had been conducting himself in this way for years, since he was barely 12 years of age. He became a risk-taking youth. He buried his lack of self-esteem, as the s. 34 Report and the IRCS Report detail, in an attention-seeking criminal lifestyle where his childhood and adolescent insecurities became masked by drugs, alcohol, peer approval and depression. T.F.D. continued to live at home, no doubt leaning on his family’s support without having the maturity to understand the value of that support. By his own admission, T.F.D. was seriously impaired by drugs and alcohol on the night of the shooting.
56I agree with Defence counsel that T.F.D. did just what some immature youths do for a variety of reasons: he hung out with other young criminals; crashed at others’ apartments; used drugs and alcohol as if there were no tomorrow and no consequences; became addicted to alcohol, marijuana, and opioids without understanding their dangers and the consequences; fooled around with a gun as though it were a toy and kept it under his bed at his parents’ home; travelled with it in public; talked “big” about robbing a corner store and then hid his anger and shame at being teased for failing; and kept drinking and using drugs until he could go and redeem himself. I accept that so very sadly, these were the actions of an impulsive, immature, and troubled adolescent whose judgment was further impaired by the consumption of alcohol and drugs.
79The court found that the seven-year IRCS sentence was sufficiently long to hold T.F.D. accountable for the terrible crime he committed: T.F.D. at para 73. The court went on to impose a youth sentence to be served under the IRCS program: T.F.D. at para 54.
80In R. v. J.D., 2022 ONSC 7282, the court denied an application for J.D. to be sentenced as an adult. J.D. was involved in three separate shootings. In the first shooting, no one was injured. In the second, a victim was injured from shots to the buttocks and upper legs. In the third shooting, one of the victims was killed and a second victim was wounded. At the time of the offences, J.D. was 17 years old. He pled guilty to second degree murder and aggravated assault.
81The court considered a s. 34 report, a pre-sentence report, institutional records from youth detention facilities, the video surveillance compilation showing aspects of the offences, Victim Impact Statements, letters of support for J.D., and a letter from J.D. during sentencing. The court considered several factors when deciding whether the Crown had rebutted then presumption of diminished moral blameworthiness. These factors included the seriousness and circumstances of the offence and the age, maturity, and background of J.D.
82The court found that J.D. attended the three locations of the shootings with a gun and was armed with ammunition. This behaviour demonstrated premeditation and planning. After the offences, J.D. took steps to change, dispose of his clothing, and avoid detection. The court accepted portions of the s. 34 report that indicated J.D. was pressured into participating in the shootings by older criminal peers and that he consumed a combination of marijuana, alcohol and Percocets before the offences. The court concluded that J.D. was vulnerable to the influence of others at the time of the offences. The court also accepted portions of the s. 34 report that indicated that J.D. experienced cognitive limitations, addictions, and mental health issues. Although, J.D. exhibited concerning behaviour while in custody such as physical aggression and anger, he also demonstrated relative stability and improved emotional self-regulation due to counselling and prescribed medication.60 Further, J.D. expressed remorse and took responsibility for his actions. The court concluded that although J.D. was an active participant in the shootings, his conduct was “consistent with the characterization in the s. 34 report of a youth who struggled with addiction, depression and cognitive limitations and who turned to older criminal peers because he lacked support and structure at home.”
83The court found that the Crown failed to rebut the presumption of reduced moral blameworthiness and had not shown that a youth sentence would be insufficient to hold J.D. accountable for the offences. The court found that the gravity of the offences committed by J.D. was “profound” and the consequential harm of the offences was “devastating and far-reaching:” J.D. at para 76. Nevertheless, the court found a youth sentence of four years in custody and three years under community supervision was sufficient to hold J.D. accountable because the community supervision addressed public safety concerns while also facilitating J.D.’s rehabilitation and reintegration into society: J.D. at paras 76-81. The court noted that the programming available through the community supervision was designed to meet J.D.’s identified issues: J.D at para 81.
84In R. v N.W. 2018 NSPC 14, N.W. was found guilty of first degree murder after trial for having shot and killed a victim. The court found that the murder was planned and deliberate, committed up-close, and with the only apparent motive being to “catch a body” to establish status within an associated group. Notwithstanding the seriousness of the crime, the court held that the Crown had not rebutted the presumption of diminished moral blameworthiness or satisfied the court that a youth sentence would be insufficient to hold N.W. accountable.
85N.W. was African Nova Scotian. He was 17 years old and living at home at the time of the offences. N.W. had learning disabilities which the author of the s. 34 report felt impacted his ability to make decisions. Furthermore, N.W. was found to have been immersed in a violently anti-social group comprised of adults and criminalized youth. Further, the court heard evidence that N.W. was raised in a community where male violence was normalized. Although N.W. held disturbing beliefs about male-female relationships, many of the beliefs were found to be ill-informed and immature: N.W. at paras 184-186. On the other hand, the court noted that during his period of pre-trial detention of 20 months, N.W. had engaged in school, counselling, and employment and had not engaged in significant behaviour problems: N.W. at para 3. N.W. demonstrated that he was open to discussing even difficult topics, open to having his beliefs challenged, and capable of working hard and learning: N.W. at para 186.
86The court found that N.W. committed a terrible act and for 18 months was living a life that was profoundly anti-social. However, for the first 15 years of his life, he was of good character and the 20 months in pre-trial detention showed signs of “promise”. His background, including the impact of his racial background, reduced his moral culpability. In these circumstances, the court found that despite the seriousness of the offence, the Crown did not rebut the presumption of diminished moral responsibility.
87In addition, the court found that a youth sentence, particularly one involving the IRCS program, would sufficiently hold N.W. accountable for his offence. In this regard, the court characterized the IRCS program as an “onerous sentence … which holds people accountable in ways that a strictly custodial sentence cannot:” N.W. at para 191. The court noted that there was no guarantee that N.W. would be rehabilitated by the youth, but the court only needed to conclude that there was a reasonable assurance that N.W. would be rehabilitated to the point where he could be safely reintegrated into society. On that basis, the court found that the youth sentence could better rehabilitate and foster reintegration than an adult and strictly custodial sentence: N.W. at para 195.
88In conclusion, upon consideration of the whole of the evidence and the relevant jurisprudence, I find the Crown has not rebutted the presumption of moral blameworthiness or satisfied me that a youth sentence would not be of sufficient length to hold A.D. accountable for his offending behaviour. The Crown application for A.D. to be sentenced as an adult is denied.
V. Issue 2: What is the appropriate youth sentence under s. 38 and should an IRCS sentence be imposed in this case?
89Where the court finds a youth is not liable to an adult sentence, a youth sentence must be imposed: 64(1.1) YCJA.
90As already discussed, the purpose of sentencing under the YCJA is to hold the young person accountable for the offence while also promoting their rehabilitation and reintegration into society. The court must consider the principles set out in s. 38(1) discussed above.
91In this case, I find there are aggravating factors that warrant the maximum sentence of seven years. First, the accused has committed second degree murder. A.D. opened fire on a group of youth in broad daylight placing people, including children, at serious risk of bodily harm. A.D.’s conduct contributed to the death of at least one person, Creflo Tansia, and harm to a second person Mr. Musoni.
92Second, Mr. Tansia’s death has devastated his family. His father J.C.T. expressed his immense sadness upon learning of his son’s death. The death, he says, destroyed a part of him. As expected, he has had difficulty getting over it. He was proud of his son who he noted had recently taken steps to pursue further studies. J.C.T stated that his son’s death has also damaged his children and their family dynamic. The children and family members, pierced with grief, barely communicate with another.
93V.T. is the older brother of the deceased and filed a Victim Impact Statement. He had just finished college and was looking forward to spending more time with his brother who he adored. But this vision he had of his life with his brother was robbed. His brother’s death left him feeling vulnerable and unable to make clear decisions about his future.
94B.T. is the deceased’s oldest brother. His heart stopped when he heard the news of his brother’s death. While he is in no way responsible for what happened, it is clear from his statement that he wishes he could have been more available for his little brother. I note that these are feelings that are common for family members to experience in these stages of grief. B.T. spoke about his brother’s life and his struggles in his early and late teens but explained that his brother was never unhinged or violent. Rather, his brother was caring towards his family, often making breakfast for them, or attending to them when they were ill. Like his father, B.T. refers to the devastating impact his brother’s death has had on their family. He notes that he is uncertain if his parents will manage through it.
95Finally, I turn to H.T., the deceased’s sister. She provided a 2 ½ page single spaced statement about what she has gone through since her brother’s death. At the time, H.T. was in law school. While she was able to graduate, her grief made it difficult for her to complete her bar exams. H.T. was also working at the time but found herself unable to focus and ended up losing her job and then moving from one job to another and even one residence to another. In short, her mental health completely collapsed after her brother’s death. She feels chronic brain fog, insomnia, irritability, and anxiety. She has stress and panic attacks which have affected both her personal and professional life. H.T. has been unable to afford therapy and is also not confident that it will serve to erase the fact that her little brother’s life was stolen by a group of young people. She notes that the experience has left her hypervigilant and fearful of young males from the Black community. Like her siblings, H.T. was proud of her brother’s talents in multiple areas and his drive for further education.
96Section 38(3) requires the court to consider the harm done to victims and whether it was intentional or reasonably foreseeable. In this regard, I am grateful for the time and effort the deceased’s family members took to prepare their statements and to attend portions of these proceedings. Their participation has enabled me to consider the impact of the crime in fashioning an appropriate sentence. In addition, I find their input and participation is an important piece of the accountability process for A.D. in understanding the consequences of his actions.
97It is my sincere hope that the deceased’s family members will be able to access the funds and resources from the Victim Services Fund to assist them in their own healing process.
98In determining a fit sentence, I must also consider the circumstances of the offender which I have detailed already. While A.D. did actively participate in the shooting, there is evidence that his cognitive deficits and lack of maturity made him vulnerable to peer influence. Nonetheless, he has taken full responsibility for his conduct through his guilty plea. Dr. Booth reports that A.D. has displayed insight into his behavior and the impacts on the victim’s family. This was also apparent to me in A.D.’s expression of remorse to the deceased’s family which I found to be sincere and genuine. While in detention, A.D. has pursued further education and engaged in programming. Notwithstanding that he participated in incidents while in custody and was also found with contraband, P.O. Aubertin has proposed, and Director Wilt agrees, that A.D. is a viable candidate for an IRCS sentence.
99I have also considered that A.D. has the support of his family. Dr. Booth states, and it was corroborated in the pre-sentence report, that A.D. has good supports through his prosocial family. A.D.’s mother was present during the sentencing hearing and expressed her remorse to the deceased’s father for the loss of their son. A.D.’s other family members also attended the proceedings to support A.D. Many family members filed support letters which I have considered.
100Counsel also filed letters of support from friends and community members, but I have put little weight on these as it was unclear to me in reading them who precisely these people were, their ages, and their precise relationships with the accused.
101In sentencing A.D., I must consider the impact of social and systemic issues that may have influenced A.D.’s choices. In R v Morris, 2009 ONCA 563, [2009] O.J. No. 2908 (Ont. C.A.), the Ontario Court of Appeal held that anti-Black racism should inform sentencing. As a young Black male, A.D. was and remains a part of a population that is overrepresented in the criminal justice system and policed at a higher rate than their proportion of the population.
102In November 2021, the Canadian Civil Liberties Association published a fact sheet on anti-Black racism in Canada’s criminal justice system. One fact reported was that in 2011-2012, Black youth accounted for almost one quarter of the admissions into custody in Ontario but represented only 3% of the youth population at the time. While the incarceration rates for young men declined after the introduction of the YCJA, Black youth have not benefitted from this decline: Canadian Civil Liberties Association, “Anti-Black Racism in Canada’s s Criminal Justice System (November 2021), online: https://ccla.org/wp-content/uploads/2021/12/Anti-Black-Racism-Fact-Sheet-2021.pdf at p.8.
103In this case, I find that a sentence of seven years with four years to be served in custody and three years to be served under conditional community supervision is a fit and appropriate sentence that holds A.D. accountable for the offence while also maintaining the principles of rehabilitation and reintegration set out in the YCJA.
104Pre-trial detention under the YCJA is at the discretion of the court. I find that A.D. should be credited in part for the 3 ½ years he has spent in pre-trial detention. It is my understanding that the credit is distributed against the whole of his sentence and not just the custodial portion.
105In addition, I order that A.D. should serve this youth sentence as an IRCS sentence.
106In her IRCS plan, P.O. Aubertin indicates that an IRCS sentence would provide programming to A.D. including individual treatment or therapy, family treatment, group counselling for anger management, substance abuse, and anti-criminal thinking, individual counselling for PTSD, community reintegration, and skills development.
107Director Wilt reviewed the IRCS plan and supports it. She testified that the IRCS sentence was developed for youth who meet the criteria in s. 42(7) and who are committed and open to making changes in their lives. The consequence of breaching an IRCS sentence term is that the sentencing becomes converted to straight jail and the youth lose their access to IRCS funding which, I infer, would impact the programming available to them both during the custody and conditional supervision portions of their sentence. Failing to take medications as prescribed would constitute a breach of the IRCS sentence. Ms. Wilt explained the review processes involved in an IRCS sentence including for alleged breaches.
108As part of her delegated authority, Director Wilt interviewed A.D. to determine his agreement and voluntary consent to the IRCS plan. She testified about the nature of their meeting during which time she asked probing questions to determine if he understood what she was saying and his obligations. Director Wilt testified that an IRCS sentence provides culturally responsible programming both during and after the custodial portion of the sentence, but that the cornerstone of the IRCS plan is to have the youth work with a psychiatrist. In this regard, she had an obligation to ensure that A.D. would voluntarily consent to the therapeutic process. During the interview, she was satisfied that A.D. was willing to try the therapeutic process and understood his obligations in following through with the program.
109Director Wilt testified that she reviewed the IRCS assessment paragraph by paragraph with A.D. She made inquiries and was satisfied that he was committed to the IRCS program and understood his obligations under it. Her IRCS Assessment Report confirms that he has met the criteria for the program as set out in s. 42(7).
110When pressed in cross-examination of how Director Wilt could be so sure of A.D.’s commitment, Dr. Wilt testified that it is not simply about the youth “saying the right things.” Rather, she assesses whether “as a whole” the person is being genuine and is motivated to do the program. She found in the case of A.D. that he was.
111Furthermore, as Defence counsel points out, it is important to keep in mind, that A.D. is not a “jedi” that can manipulate experienced professionals like Director Wilt, P.O. Aubertin, and Dr. Booth and say what he needs to say to achieve a better sentence. These professionals are well experienced with dealing with young offenders as well as their responsibilities in reporting to their court the accuracy and basis for their recommendations.
112Director Wilt testified that as A.D. approaches his release date from custody, the caseworker would develop the treatment plan for him under conditional supervision. IRCS funding would continue to be available to him for this portion of his sentence. The funding can include obtaining therapy services, getting a doctor, applying for school, obtaining identification cards, and accessing agencies that assist him with finding housing and employment.
113I find the IRCS sentence is consistent with the principles of youth sentencing which emphasize the importance of imposing the least restrictive sentence while promoting accountability for youth and ensuring their rehabilitation and reintegration into the community. Finally, as with other youth sentences, there is an annual review of the IRCS sentence where A.D. will be required to return before me for review of his progress and conditions.
114Director Wilt testified that now that A.D. is 20, he has maxed out in terms of his age to be able to continue to serve a youth sentence at a youth facility. Consequently, he will transfer to OCDC, an adult provincial institution here in Ottawa. It is not lost on me that this will be a significant adjustment for A.D. who will go from residing at a youth detention center where he has become a leader and mentor to being amongst the youngest persons within an adult institution. Furthermore, OCDC is traditionally a remand facility with limited programming. Nonetheless, by serving an IRCS sentence, A.D. will be able to continue with his rehabilitative goals and access to education and programming that might not otherwise be available to him.
115Director Wilt acknowledged that there will be challenges for Youth Probation in running the IRCS program for the first time in an adult institution. Access to programming may be logistically difficult, and there are also lockdowns that may impede programming. However, Director Wilt confirmed that the Solicitor General for Ontario has identified OCDC as a suitable placement institution for the IRCS program for A.D. and that OCDC is committed to facilitating the IRCS program in its facility. Having said this, Director Wilt cautioned that the institutional placement could change but that the IRCS funding would follow A.D. wherever he goes.
116Finally, I note that allowing A.D. to serve his IRCS sentence at OCDC in Ottawa permits him to maintain closer ties with his family and to connect with the community supports and agencies that will form part of his reintegration plan when he commences conditional supervision. Having said this, I am mindful that it will be up to the correctional authorities to determine A.D.’s placement for the custodial portion of his sentence.
VI. Order
117A.D. please stand up. You are ordered to serve a seven-year (2,555 days) Intensive Rehabilitative Custody and Supervision Order consisting of secure custody of 1,460 days and conditional supervision 1,095 days. However, I am granting you one year of credit (365 days) for the 3 ½ years you spent in pre-trial detention which will be distributed equally between the custodial and conditional supervision portions of the IRCS sentence.
118This means you are ordered to spend 1,277 days in custody and 913 days in conditional supervision as part of your IRCS sentence.
119Your conditions during the community supervision program will be influenced by the programming and rehabilitation work that you undertake while in custody and the recommendations of the IRCS probation officer on what conditions are required to keep the community safe and to keep you on a rehabilitative path.
120In addition, as you have heard during the submissions in court, you will return before me or another judge of this Court for an annual review of the IRCS sentence.
121In addition, you will be subject to the following ancillary orders:
a. A lifetime weapons prohibition pursuant to s. 109 of the Criminal Code.
b. A mandatory DNA Order pursuant to s. 487.051(1) of the Criminal Code.
c. A no contact or communication order with respect to the deceased’s family members J.C.T., V.T., B.T., and H.T. as well as Sammy Musoni, pursuant to s. 743.21 of the Criminal Code.
122Your counsel and Crown will receive a written copy of my decision. Should there be any discrepancy between my oral and written decision, the written decision will prevail.
Somji J.
Released: April 15, 2025
CITATION
COURT FILE NO.: 21-M15584
DATE: 2025/04/15
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
A.D.
Accused
REASONS FOR Sentence
Somji J.
Released: April 15, 2025