Court File and Parties

Court File No.: YC-23-80000001-0000

Date: September 26, 2025

Ontario Superior Court of Justice

Between:

His Majesty the King

– and –

J.C., Defendant

Before: Justice S. Nakatsuru

Counsel:

Sarah De Filippis, for the Crown

Jordan Weisz, for the Defendant

Heard: July 19, August 6, 2024, May 27, June 13, 2025

Reasons for Judgment

[1] As a 16-year-old, J.C., you shot and partially paralyzed a young man you had just encountered by chance in the very early morning hours in the busy downtown area of Yonge Street and Dundas Avenue in the City of Toronto. After pleading guilty to aggravated assault, I must decide whether you should get an adult sentence or a youth sentence. After that, I must decide what that sentence should be.

[2] The crime happened nearly four years ago on December 12, 2021. Since your arrest on January 12, 2022, you have been in custody at the Roy McMurtry Youth Detention Center. Now a 20-year-old, having basically lost your freedom during your formative teen-age years, your future will be shaped by the law and the evidence I have heard at this sentencing hearing.

[3] This is my decision.

A. THE CRIME

[4] In the early morning hours, the victim and his friends, visiting from out of town, were at this well-known corner of our city, trying to get a taxi back to their hotel. You and a friend happened upon them. A brief conversation between the two groups became heated. Even when you crossed to the other side of Dundas Avenue, aggressive talk continued to be exchanged. As a TTC streetcar approached, you crossed back towards the victim and his friends and a confrontation began, spilling out onto the street. You took out a firearm and fired a single shot. It hit the victim in the torso. He fell to the street.

[5] You and your friend ran. In a nearby laneway, you removed items of clothing. They were later seized. The only reasonable inference from your actions is you did that to avoid getting caught.

[6] At the time of the crime, you were on youth probation with a "no weapons" condition and were also subject to a firearms prohibition under s. 51(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA").

[7] Luckily, the victim survived. But he has suffered. And continues to suffer. As Gavin Smith puts it in his victim impact statement, you have given him a life sentence. In a moment, minutes earlier having spent fun and carefree time with friends and family enjoying what the city has to offer, his life has been turned upside down. Although he continues with expensive therapy with hopes to regain more mobility and to learn to walk, he still uses a wheelchair. When asked about the emotional impact your crime has had on him, he is unwilling to put into words the obvious: the impact has been huge. He is unwilling because… and I understand this completely… he feels that revealing his vulnerability and true feelings would only give you something to "gloat" about. To say your crime has really affected the victim to his core, would be an understatement.

B. THE POSITION OF THE PARTIES

[8] The Crown seeks an adult sentence. If an adult sentence, her position is 8 to 10 years less pretrial custody along with a DNA order and a s. 109 firearms prohibition. Alternatively, if a youth sentence, the maximum youth sentence of two years custody and community supervision order under s. 42(2)(n) without any credit for pretrial custody along with a DNA order and a s. 51 weapons prohibition.[1]

[9] Your lawyer argues for a youth sentence. Given the pretrial custody you have done, he says the proper sentence is really one of time served with probation.

[10] I will now set out the legal test I must apply.

C. AN ADULT OR A YOUTH SENTENCE

The Legal Test

[11] The starting point for all sentencing decisions involving youth is a presumption of diminished moral blameworthiness. This presumption was enshrined as a principle of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3. Later, Parliament codified this presumption in s. 72(1) of the YCJA, which governs whenever the Crown seeks an adult sentence for a youth offender. Where the Crown asks for an adult sentence for a young person, it bears the onus of satisfying the test set out in s. 72(1) of the YCJA:

72(1) The youth court shall order that an adult sentence be imposed if it is satisfied that

(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

[12] In the recent cases of R. v. I.M., 2025 SCC 23, 449 C.C.C. (3d) 283 and R. v. S.B., 2025 SCC 24, 450 C.C.C. (3d) 1, the Supreme Court of Canada confirmed that, to sentence a young offender as an adult, the Crown must rebut the statutory presumption of diminished moral blameworthiness in s. 72(1)(a) of the YCJA beyond a reasonable doubt. Rebutting the presumption tends to aggravate the sentence, as it exposes the youth to the risk of a sentence that is significantly more severe than a youth sentence, so it must be proven beyond a reasonable doubt as a matter of fundamental justice under s. 7 of the Charter.

[13] The Court also clarified what factors are relevant to rebutting the presumption of diminished moral blameworthiness. The seriousness or objective gravity of the offence is irrelevant to this analysis, but factors that properly fix on the young offender's developmental age and capacity for moral judgment, such as their mental health and background, need to be considered where they are part of the record. Factors like conduct consistent with lesser maturity such as impulsiveness or bravado, and whether evidence of planning reveals an adult level of sophistication, may also be relevant.

[14] If the presumption of diminished moral blameworthiness is rebutted, then a second and distinct requirement must be met before an adult sentence can be ordered. Under s. 72(1)(b) of the YCJA, the sentencing judge must be satisfied that a youth sentence would be insufficient to hold the young person accountable for the offence. The standard at this stage, however, is not beyond a reasonable doubt; it is evaluative in nature and requires a weighing and balancing of relevant factors: I.M., at para. 169. At this stage, seriousness of the offence is highly relevant, as the analysis includes a consideration of whether a youth sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. A broad array of other factors may be considered, including the normative consequences of the offence, the impact on victims and the community, as well as the availability or lack of rehabilitative and reintegrative supports within the youth system. Social context evidence, time spent in pre-sentence custody, and post-offence conduct are also relevant at this stage.

Stage 1: Has the presumption of diminished blameworthiness been rebutted?

[15] Under this stage, I must carefully consider all relevant factors in deciding if the presumption has been rebutted beyond a reasonable doubt. I have been given substantial information about you. Counsel were hardworking and collected a lot of evidence. Although I summarize it, let there be no doubt I have considered it all carefully.

[16] Personal circumstances of the offender relevant to rebutting the presumption will be "individualized, offender-centric evidence that the young person's developmental age is akin to that of an adult." I must consider factors such as the young person's actual age, background, sophistication in thinking, capacity for independent judgement, behaviour after the offence, whether the person was living like an adult, cognitive, emotional, and mental health, and susceptibility to external influences: I.M., at para. 151.

[17] Let's start with an important and basic fact. You were 16. But three months shy of 17. So, you were not the youngest of teenagers. On the other hand, nor were you super close to being 18 and old enough to be legally treated as an adult. Obviously, there is a wide range of maturity amongst 16-year-old teenagers. It is who you are that is crucial.

The circumstances of the offence

[18] The Crown concedes that the shooting itself was an impulsive act. Also, there was some provocation.

[19] I whole-heartedly agree. There is no evidence of planning. Little evidence of any deliberation. The circumstances reveal a violent act out of all proportion to whatever the two groups of males, unknown to each other and randomly meeting at night on a downtown street corner, could have ever disagreed about. I find that your actions were impulsive, irrational, and heedless. These circumstances speak loudly about your utter immaturity that played a large role in your crime.

[20] Then there was your intoxication on drugs. This too supports the diminished moral blameworthiness of your ultimate actions. It is also a sign of immaturity.

[21] You have little recall of that night due to the opioids that you took. I am very mindful that you have not been fully consistent with how little you recall about that night. Moreover, I am aware that blackouts are not a common symptom of their use. Perhaps this is a way for you to be able to live with what you have done. I also do not put much stock in any inconsistencies about your belief at the time of the s. 34 assessment that the victim had recovered from his paralysis while you have agreed in the agreed statement of facts he was paralyzed. Again, you may have been in denial of the full consequences of your actions, or you may have been misinformed about his recovery later on. I will not speculate. But I do accept that you used a significant amount of drugs and you were under their influence at the time of the shooting. This is consistent with all the evidence about your substance abuse problem and how serious it was at the time. Indeed, you went to detox after the offence.

[22] Importantly, the use of drugs on the evening in question, was immature. The use of drugs can be neither here nor there when it comes to assessing immaturity. Many adults abuse drugs. But in your case, despite going out to sell drugs, illegal conduct that carries with it significant risk, you decided to do so in an impaired state. That was not mature thinking.

[23] These factors do not assist the Crown in rebutting the presumption. However, the Crown submits that other facts of the offence support the rebutting of the presumption. The Crown points to the fact that you deliberately armed yourself with your gun before setting out that night to sell drugs. I appreciate this fact. However, aside from having the firearm, the offence had no connection to your drug dealing: I.M., at para. 210. Moreover, your street level drug dealing was not particularly sophisticated. It does not demarcate any line into adulthood. Sadly, it is not uncommon for teenagers to traffic in illegal drugs.

[24] The Crown also makes much of your actions afterwards. Your flight, attempt to conceal your involvement, and refusal to turn yourself in to the police. The Crown submits it shows calculated conduct, problem solving to neutralize risk, and independence from others including your mother.

[25] I do not see it in that way. These acts are not particularly sophisticated. Your ability to avoid detection and arrest were limited by your personal circumstances, that of a youth who mainly lived with his mother. You did not flee the jurisdiction and were not able to evade detection for long. The acts were more motivated by juvenile fear and panic than adult calculation.

[26] All in all, consideration of the circumstances of the offence does not greatly assist the Crown.

Life up until the offence

[27] You have not had an easy life. Trauma, instability, and dislocation are the hallmarks of it.

[28] This is well documented in the Pre-sentence Report ("P.S.R."), from which the following was taken, along with the other evidence.

[29] You were born in British Columbia. Your mother is a registered member of the Whitefish River First Nation. You are a non-status Indigenous person. Your parents separated when you were two. Then your mother has had an on-and-off common law relationship with L.B. Together, they had your sister who is now 14 years old.

[30] During your upbringing, you and your mother often moved across the provinces of B.C. and Ontario before settling in Toronto. During that time, when L.B. and your mother were together, significant domestic violence and substance abuse permeated your home ultimately leading to the involvement of Native Child and Family Services of Toronto. You were in their care from ages 6 to 11. When things got better, the file was closed. But your mother and L.B. have had a complicated and strife filled relationship. Even to this day.

[31] In the P.S.R., your mother reported she feels you suffer from depression as you have felt hopeless in not being able to protect your mother from physical abuse. It got so bad that in 2018, you hurt yourself by cutting yourself and taking pills.

[32] To make things worse, you were also mentally and physically abused by those who were supposed to take care of you. In 2021, it was reported and confirmed that L.B. hit you with his car.

[33] In July of 2019, you went to live with your biological father in Calgary as your mother could not take care of you. You have spoken positively to the probation officer about your year there, but you really had no prior relationship with your father. Your mother feels that your father's absence has affected you. You have always been looking for a male figure in your life.

[34] You stated that you have a good relationship with your mother but have acknowledged that you were exposed to a toxic environment at home, including difficult times with your mother as she worked through her own trauma. This included a lack of supervision with your mom absent, terrible financial circumstances, and food scarcity.

[35] This led to your hanging out with peers, some who were involved in crime. To your credit, you now plan to cut them off and to look for better, trustworthy, and respectful friends. That is good.

[36] In terms of substance abuse, you started young. Then you graduated into harder drugs. Taking Percocets and hydro codeine for a few months before your arrest.

[37] In school, you were diagnosed with a learning disability and were on an Individual Education Plan. You were in special education. You had social work support. Significant environmental stressors were identified. You were suspended a few times for fighting. In the P.S.R., it is noted that you were subject to racism due to your heritage, lost your temper, and were suspended. In Calgary, your attendance in Grade 9 was lacking. You were unmotivated and disrespectful to the teachers. At the time of the offence, you were at Danforth Collegiate and Technical Institute in Grade 10 but doing poorly. Truancy and the lack of motivation was the main reason. Playing video games all night took precedence. Plans were made to send you to an alternative school.

[38] There were short periods of time when you lived alone. Without parental supervision. The Crown argues that this shows some maturity. I don't see it that way. It was more a result of the difficult home life you had.

[39] In sum, at the time of the offence, you were in a precarious financial situation, with no structure or supervision at home, and appeared totally lost about your future. You used drugs to get high, triggered by the lack of structure and meaning in your life.

Gladue Considerations

[40] Your Gladue report confirms all of this. But it also details a young Indigenous youth with extensive trauma, both personal and intergenerational. Like the youth in R. v. A.M., 2024 ONSC 5323, your close relatives were victims of Canada's residential schools, which have since been described as instruments of cultural genocide.

[41] Your mother is Ojibway. Her grandparents attended residential school. In today's Canada, I do not need to go on at length about the profoundly destructive effect this had on the history of this nation's Indigenous peoples far beyond those who personally attended residential school. It is well-known. Broken families. Broken culture. Broken spirit.

[42] Your mother's parents separated while she was still young. Her father was mentally, emotionally, physically and sexually abused by his older siblings and from various foster parents. Your mother was raised by a single mother who eventually became involved with a man that mentally, emotionally, and physically abused her. So badly that he hospitalized her. A man who regularly shamed her for being native. Who made her work like a Cinderella in her own home. Your mother tried to run away from her identity because of how Indigenous children were picked on at school. At age 11, she literally ran away to live on the streets of the Okanagan Valley. At age 13, she met your father, who was over a decade her senior. She became pregnant at 14 with you.

[43] Your mother's life is marked by the all too familiar consequences of intergenerational trauma. She did not complete school. Her employment history has not been great. She has been a victim of much abuse as an adult. And sadly, this trauma did not end with her generation. It has also profoundly touched your life.

[44] Your mother recalls you being present when your father tried to commit suicide twice—once by swallowing cleaning fluid, and once by stabbing himself. Further, when you were five, you were exposed to the violent details of your grandfather being severely beaten to death. Your mother said you were diagnosed with Post-traumatic Stress Disorder after this experience.

[45] Perhaps most disturbing is how you were present on multiple occasions of extreme domestic violence fueled by alcohol use between your mother and L.B., including on one occasion where you had to stop him from choking your mother. Your mother says that you had to save her life at times. I have little doubt that she is right when she believes that these experiences shut you down emotionally. Surviving such experiences can lead to maladaptive, anti-social, and self-destructive behavior including substance abuse and violence.

[46] When you were 12, your mother would leave you and your four-year-old sister alone for periods of 24 hours to go out and party. You reported that you "missed out on being a kid." It was around this time that L.B. began physically abusing you.

[47] At age 13, you were diagnosed with a learning disability. You were bullied by your classmates online. You attempted suicide by taking prescription pills and cutting your forearms, and you spent eight days in the hospital on suicide watch. You reported feeling depressed due to the domestic violence you witnessed and were subjected to. It is noteworthy that Indigenous people experience suicide at a significantly higher rate than the general Canadian population. It has been called an epidemic for Indigenous youth. Studies have accounted for it as being affected by specific cultural, historical, and political processes related to colonization and forced assimilation of Indigenous peoples.

[48] After your suicide attempt, you started getting into trouble with the law. You spent some time living with your great aunt in Sault Ste. Marie, helping her with the sweat lodge on her property. You enjoyed your time there, until you moved to Calgary to live with your father. At this time, you were "just staying home, smoking weed and playing video games." Eventually, according to your mother, your father told you that he was unable to be in your life because he needed to focus on his new family. Your mother thinks this conversation left you with a sense of abandonment and rejection.

[49] You moved back to Toronto and started Grade 10 until your arrest for the present charge.

[50] The Gladue Report referred to an influential adverse childhood experiences study, (Felitti, M.D. Vincent, J. et al, Relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults: The Adverse Childhood Experiences Study, 1998, American Journal of Preventive Medicine, 14:4 pp. 245-258) which found that many mental health problems are related to childhood toxic stress and vulnerability; the latter being cumulative and increasing with the number of risk factors present and the length of exposure to them. Of the risk factors identified, you have experienced six of the childhood exposures to harm or disadvantage in your life. Unfortunately, this increases your risk of substance abuse, depression, and suicide.

[51] In sum, the Gladue Report traces the roots of your family dysfunction and violence to historical trauma and the social realities created by those historical processes. I find that these factors, both specific to you and systemic, relating to your Indigenous identity and experiences, significantly diminishes your moral blameworthiness.

Prior criminality

[52] You have a confirmed history of committing criminal offences.

[53] On October 14, 2021, you were sentenced for three counts of break and enter, one count of armed robbery and one count of failure to comply with a recognizance and placed on probation with the weapons prohibition. In the Pre-sentence Report for these offences, you reported your actions were motivated by the temptation to acquire money. You expressed regret for breaking into homes and a business.

[54] With respect to the robbery on January 13, 2019, again your actions were motivated by greed and impulsivity. You liked the sweater the victim was wearing and felt you needed to have it by all means necessary, so you threatened the victim with a knife.

[55] Regarding the failure to comply with your curfew condition on November 6, 2018, you admitted to being out past the curfew because you wanted to hang out with your friends. You further acknowledged the commission of the offence and took responsibility for your behaviour.

[56] So, your past is not unblemished. And you did not learn from this previous experience with the youth criminal justice system. That said, these convictions too are marked with impulsivity, immaturity, and the foolish motivation of youth. Your mother told the probation officer that she believed that negative peer associations played a major contributing factor to your adoption of a criminal mentality and negative lifestyle. At the time, you had been associating with older males, most of whom were heavily entrenched in the criminal system. They served as role models.

[57] The Crown relies more on the criminal offences you were committing in and around the time of the shooting. You were a drug dealer. You have admitted to not only using drugs, but selling drugs, starting when you were 15. And continued even up to the night of the arrest. You were honest and do not claim you sold drugs to feed your addiction. You wanted money and the things that money could buy. You got a handgun for protection while you conducted your trade. The Crown emphasizes that this illegal activity shows sophistication, maturity, and relatively high executive functioning. She submits it shows the formulation of a persistent plan and the ability to make it successful, thereby demonstrating cognitive sophistication and maturity.

[58] While there is no doubt some truth to that, the activity must be seen in context. As I have previously observed, this was not a sophisticated illegal business. You were doing it by yourself. You were not doing it in a gang or a criminal enterprise. It was street level. As far as I know, it was at the lowest rung of the drug trade. You made money but were not getting rich. The handgun did not seem that hard for you to buy. It was all pretty basic and simple. It is as much a sign of youthful foolishness and poor judgment as it is of adult planning and ability.

[59] All that being said, while I have placed this factor into context with care, there is no doubt that it, along with the fact that you were on probation and on a prohibition order at the time of the offence, goes a way in rebutting the presumption.

Your time in pretrial custody

[60] You have done great in your time at the Roy McMurtry Youth Center. In custody, a different J.C. emerged.

[61] You never went for bail. In your own words, it was because you wanted to progress and succeed with the resources available to you inside. You have insight in that you know the outside environment would cause you stress.

[62] In terms of education, you enrolled at the Peel Alternative Central School, graduated high school in September of 2023, and took the initiative to find and apply for post-secondary courses. You were approved for and completed a course at the Toronto Metropolitan University. You enrolled in another: "Violence and the Family," showing insight into what has gotten you into trouble and what makes you who you are. At the time of the P.S.R., you were taking a financial course at McGill University. In my opinion, this is great success, for someone who before the offence, did not believe he would finish high school. You have a right to take pride in how well you have done in educating yourself.

[63] While in custody, you have taken trauma counselling. In February of 2022, you started with a Children's Mental Health Worker and had sessions until August of 2023, when she went on sudden sick leave. While this was upsetting, you continued on. In April of 2024, you connected with an Indigenous Wellness Worker of Native Child and Family Services of Toronto.

[64] A social worker at the Roy McMurtry Youth Center describes you as respectful, mature, doing meaningful things, getting ready to leave and resume life in the community. Your goal is to be a social worker. The case management team finds that you have positive peer and staff relations, you have learned to advocate for yourself and show leadership, and you have been at the highest incentive levels for some time.

[65] In the P.S.R., it is stated you have shown remorse and insight. You have made good use of the supports available to you. The P.S.R. focuses on your need for counselling and makes probation condition recommendations.

[66] The s. 34 assessment also outlines positive achievements while in custody. The assessment is fair and evenhanded.

[67] You were reported as having sometimes joined when other youth on the unit had fights, but you always made efforts to repair and re-establish positive relationships following the incidents. You only started a fight once. You described these fights as "in the heat of the moment…about dumb stuff." You explained that you were younger then, 17, and that you feel differently now and can walk away more easily. You now get along well with everybody, and help younger peers deal with conflict in other ways than fighting: "they are young; sometimes they listen." You like to prevent things from happening. You have also been asked to set an example by staff as you are older.

[68] Otherwise, you have generally maintained your status at the highest level of the behavioural incentive system and have taken on a leadership role in the facility by helping younger youth adjust to routines and expectations. You have been described by staff as having taken additional steps to include new youth in activities and to alert staff when there were issues on the unit. You are described as a "nice kid," and any negative behaviours are described by staff as doing what is needed to survive in a detention facility.

[69] You have made use of all programs available to you at the center, including the Circle of Change program (a group-based program twice a week), a financial literacy course, and Indigenous practices, both individually, with guidance from an Indigenous worker (monthly), as well as in a weekly group Indigenous teaching program. You are described as interested and engaged in all programming offered to you.

[70] The social worker has stated that you will likely require supports to re-integrate into the community, as you have spent a long time in a detention facility and may be anxious about the reintegration process.

[71] A probation officer noted that you did poorly during a 12-month probation order for the previous offences, exhibiting lying behaviors, being truant from school, and becoming increasingly distant. Since your detention, this probation officer has described you as a "different person," having matured significantly during your time at the detention center. You have engaged in supports and services at the facility, including psychiatry and psychology, and have also worked with a mental health worker from Native Child and Family Services and participate in Indigenous practices together, such as smudging. You have spoken of this worker as well and have been working together for almost a year. You also discuss issues relevant to reintegration when you return to the community.

[72] Sabrina Spencer, your Youth Worker from the Native Child and Family Services for the past three years, says you are the longest and most consistent program participant. Your behaviour is "exemplary" and you are a great example for your peers. During your time in Native Services you have voluntarily taken the lead or been appointed several times by Elders and staff to be the group Oshkaabewis, meaning helper or messenger, a role Indigenous cultures hold in high regard. You have successfully taken part in programing such as anger management and in cultural practices like sweat lodges. Perhaps, as important as your actions, Ms. Spencer talks about your insight and maturity saying:

In individual sessions I've seen a lot of growth during these years, namely his ability to connect with his emotions looking inward taking ownership for any poor choices he may have made as a youth and setting the framework and positive attitude for achieving new goals leading to a sustained healthy future.

[73] She believes strongly in you. She describes you as very motivated to succeed when you are released.

[74] In short, J.C., you have not just talked the talk, but have walked the walk while in custody. I am impressed. Seldom have I seen time in pre-trial custody - even a lengthy period like this - spent so well.

[75] Evidence of increased maturity at the time of sentencing is a factor to be considered on the test, if it demonstrates lower maturity at the time of the offence: I.M., at para. 158; R. v. M.W., 2017 ONCA 22, 346 C.C.C. (3d) 319, at para. 130, leave to appeal refused [2017] S.C.C.A. No. 109.

[76] In my opinion, this factor strengthens the presumption of diminished responsibility. In short, the stark contrast between the J.C. who shot the innocent victim on December 21, 2021, and the J.C. who now lives at the Roy McMurtry Youth Center, is the difference between a child and a man.

The s. 34 assessment and opinion

[77] According to the s. 34 report, J.C. takes responsibility and expresses remorse for the actions that led to his conviction. You noted your actions were of your own choice and not influenced by others. You further stated that you think about the offence often and feels sorrow and pity. You said you consider your behaviours and the charge to be serious and take responsibility for your actions. You said: "I pulled the trigger, I took the drugs. I could have stayed home." You said you feel bad for the victim and all he had to go through.

[78] Regarding your behaviour leading to your arrest, the psychiatrist noted that your "history of complex trauma and associated emotional and cognitive vulnerabilities likely contributed to [your] behaviours and [your] substance use."

[79] In the s. 34 report, you spoke further about your future goals in the community. You wish to pursue a degree in sociology at the Toronto Metropolitan University when you return to the community. At the time of the report, you were working on your third online course and have completed two courses: Indigenous Issues and Violence and Family Relations.

[80] You expressed that you would ultimately like to be a program director for programs focused on supporting and helping youth, and that having a career is important to you because you would like to earn a steady income and have stability in your life.

[81] You expressed your determination to refrain from any illegal activities moving forward. You hope to have stable employment and income and want to be busy with work and cultural activities. You added that you wanted to spend time with family, especially because you missed out on a lot already. When prompted specifically regarding the choice of peers in the community, you stated that you know you must stay away from people who break the law or use substances. You added that you have three close, long-term friends who are positive and productive, and you plan to reconnect only with these peers when you return to the community.

[82] The psychiatrist diagnosed you with opioid and cannabis use disorders, adolescent onset conduct disorder with evident desistance in a controlled setting, and other trauma and stressor-related disorder with complex trauma related to abuse, losses, and the treatment of Indigenous people (including the impact of intergenerational trauma). As well, a learning disability was diagnosed, and the report says you "would certainly benefit from supports and accommodations to support [your] learning."

[83] Regarding the question of adult vs. youth sentence, speaking generally about your growth and future needs, the psychiatrist report concluded:

To his credit, with increasing maturity over time, [J.C.]'s values appear to have shifted significantly. He has successfully engaged in academic pursuits, he has engaged with counseling (albeit he has had difficulties being open at times), and he has become future-oriented and appears to want to do well. Further, he has developed an awareness of needs and is amenable to interventions. He would likely do well during his transition into adulthood, in the context of having support, supervision structure (including school and programs), trauma-informed care, Indigenous focused-services, treatment for substance abuse, and family involvement.

[84] The report noted that it is likely that you will require about 100-150 additional hours of intervention to effectively reduce your risk for recidivism, which could take place in detention or in the community. It noted you will "require extensive services to address [your] trauma, work on preventing a relapse of substance abuse, and process the circumstances of the current offence and help [you] better understand and address the factors that led to [your] violent behaviour."

[85] The report noted that "[f]rom a clinical perspective, the IRCS option is highly relevant to [J.C.], as his significant trauma history and resulting emotional, social, and behavioural challenges that warrant a diagnosis of trauma and stressor-related disorder are certainly in keeping with the outlined clinical criteria for this program (i.e., mental illness or disorder, a psychological disorder or an emotional disturbance)."

[86] You expressed an openness to services and supports adding that culturally-grounded services are important to you. When asked what you need help with, you stated: "opening up and talking about traumas, like abuse and deaths in the family…These weigh heavy on me."

[87] The report stated: "[J.C.] appears to have a strong connection to his Indigenous culture and expressed the importance of continued culturally-grounded services, which may be more readily available to him if sentenced as a youth."

[88] The report noted a moderate risk of recidivism and suggested that in order to effectively address criminogenic needs, treatment services should be consistent with the learning profile of the individual, as well as their psychological functioning, motivation, strengths, and individual characteristics.

[89] The report notes that while an adult sentence could act as a forceful reminder of the seriousness of J.C.'s offence, and that if this helped him take a prosocial path, it could be in his and in society's best interest.

[90] However, the report says that in light of your mental health and learning needs, there is a risk that serving a lengthy sentence in an adult facility could add to your challenges and increase the risk of a negative outcome. You are described as easily influenced by those around you, which adds concern to the prospect of you spending lots of time around "antisocial adults."

[91] The report noted that you have experienced a level of stability and access to consistent supports, likely for the first time in your life, while at the center. You have made meaningful gains and improvements, demonstrating your ability to benefit from services. The report says that "continued access to such services will be imperative for his positive trajectory, and such supports are more likely to be accessed with the use of specialized sentencing options available through the YCJA (e.g., IRCS)."

[92] Dr. Vinik finally writes: "Generally, it appears that when [J.C.] is provided with stability, appropriate supports for his needs, and access to consistent schooling and programming, all of which he lacked through most of his life, he positively partakes in all available opportunities and pursues positive goals."

[93] I find that the s. 34 assessment strongly supports a youth sentence on this aspect of the test.

Similar Cases to J.C.

[94] I have looked at the case law and find there is support in imposing a youth sentence in circumstances such as yours.

[95] In R. v. A.M., 2024 ONSC 5323, the accused received a youth sentence. He was charged with second degree murder and pleaded guilty to manslaughter. He, along with another youth, chased and beat the 18-year-old victim. A.M., a young Indigenous man, had profound trauma. His father and grandfather were victims of residential schools, like J.C.'s great-grandparents. His parents were abused, like J.C.'s parents. His parents' relationship was marred with substance abuse and spousal abuse—which A.M. witnessed—and his father was often absent. He was bullied as a child and witnessed violence at a young age. He had a criminal record and spent much of his youth incarcerated. His s. 34 report revealed mental health difficulties and traumatic stress.

[96] Nieckarz J. found the presumption of diminished moral blameworthiness was not rebutted: A.M. was "a troubled youth who had endured significant trauma in his then 17 years and 11 months, had been exposed to significant levels of violence, and who abused substances to cope. He came from a community ravaged by the legacy of residential schools and poverty. Surrounded by violence and trauma, he was ill-equipped to make mature decisions" (at para. 74). She also considered that A.M. wasn't living as an adult (he was dependent on family for basic living needs), and that he had a youth record (which the judge attributed to A.M. being a "misguided and troubled youth who was easily influenced by peers"), as evidencing a youth level of maturity.

[97] In R. v. TFD, 2019 ONSC 3389, the accused received a youth sentence. He pleaded guilty to second degree murder. After a night of drinking, cannabis and cocaine, TFD shot a man once in the chest while attempting to rob him, and the man died. Ratushny J. characterized TFD as an "impulsive, immature, and troubled adolescent" who "buried his lack of self-esteem" in an attention-seeking criminal lifestyle and substance use. TFD had supportive parents and did not come from a marginalized background; he was simply "looking for trouble" and, as youth do, lacked the intellectual capacity to appreciate the consequences of his actions.

[98] I will also refer to other cases later in my reasons.

Conclusion

[99] I find that J.C., at the time of the offence, you were a troubled youth with significant trauma. Your extended family was victimized by Canada's residential schools, the trauma of which has undoubtedly rippled through your family, like so many others. You witnessed and were personally victimized by domestic violence from a very young age. After being exposed to the violent details of your grandfather's death, you were diagnosed with PTSD at age five. Your mother, whose life was also deeply impacted by trauma, left you to care for your younger sister for full days at a time. In your own words, you "missed out on being a kid," and as such, missed out on the safe, nurturing, secure environment that children need to mature. Moreover, your life circumstances including the psychiatric dysfunctions that you suffered from, further made making prudent and moral choices difficult.

[100] In short, all of this made you ill-equipped to make mature decisions. Based on the trauma, the lack of support, and mental health challenges including substance abuse, your developmental age at the time of the offence was, on a case-specific assessment, very young. Your capacity for moral judgment was impaired by all these factors in addition to factors inherent to any youth of 16.

[101] In committing the offence, you displayed immaturity, short-sightedness and a lack of sophistication or appreciation for the consequences of your actions. Said differently, I cannot find that at the time of the offence, you demonstrated the level of maturity, moral sophistication and capacity for independent judgement of an adult.

[102] Based on the whole of the evidence and considering all the appropriate factors, I conclude that the presumption of diminished moral blameworthiness has not been rebutted. Certainly, it has not been rebutted beyond a reasonable doubt.

[103] As a result, you will receive a youth and not an adult sentence.

Stage 2: Would a youth sentence hold the young person accountable?

[104] While it is not necessary to deal with this stage, were I required to go on and decide it, I would find that a youth sentence would hold you accountable. Section 72(1) requires courts to consider the purpose of sentencing under the YCJA, which 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": s. 38(1). A youth sentence could be imposed that would accomplish these goals.

[105] When examining the principles of sentencing, I must note that the offence is very serious, the harm to the victim significant, and the normative values of society call for denunciation. Nonetheless, the key consideration on this stage of the test would be the length of the pretrial custody you have done.

[106] You have done 3 years 9.5 months of real custody. Given credit for that pretrial custody on a 1.5 to 1 basis, that is an equivalent sentence of 5 years 8 ¼ months. That is a significant sentence for this offence.

[107] Section 38(3)(d) of the YCJA requires a sentencing judge to 'take into account' any presentence custody served by a young person because of an offence. The Ontario Court of Appeal has ruled that while s. 38(3)(d) means presentence custody must be deducted from a young person's sentence, sentencing judges have a discretion in how they credit presentence custody and may decline to give full credit where to do so would exhaust the custodial term available and result in a sentence contrary to s. 38. The reasoning behind this is explained at para. 11 of R. v. M.B., 2016 ONCA 760, 342 C.C.C. (3d) 34:

The reasons why a sentencing judge might choose to exercise discretion in this manner are apparent, when considering the sentencing objectives under the YCJA. Youth sentencing judge[s] are mandated under the YCJA to impose the least restrictive sentence capable of achieving the purposes expressed in the YCJA, and to impose the sentence most likely to rehabilitate the young person and reintegrate him or her into society (YCJA, s. 38(1), 38(2)(e)). Requiring youth court judges to give credit for pre-sentence custody could reduce their ability to meet these objectives because, in some instances, deducting pre-sentence custody could lead to a conclusion that the youth sentence would be of insufficient length to hold the youth accountable.

[108] Consequently, I have broad discretion to take pre-sentence custody into account in determining whether a youth should serve a youth sentence or an adult sentence. As stated in M.W., at para. 78:

Section 38(3)(d) of the YCJA requires the youth court judge to take detention "into account", but the judge is not required to actually deduct pre-sentence custody when crafting an appropriate sentence. Whether and to what extent credit is given for pre-sentence custody against a youth sentence is within a youth court judge's discretion, particularly in the context of a Crown application to sentence a youth as an adult: W. (D.), at para. 3; R. v. B. (M.), [2016] O.J. No. 5365, 2016 ONCA 760. In such cases, pre-sentence custody can be taken into account as a consideration in determining whether the young person would serve an adult or youth sentence as opposed to through an actual credit to length of sentence imposed.

[109] I exercise my discretion not to credit you for any of the significant pretrial custody you have done. Considering that, the sentence I impose will meet the requirements of stage 2. For this additional reason, a youth sentence is appropriate.

D. THE YOUTH SENTENCE

[110] Sentencing is a highly individualized process that is dependent on the unique facts of the offence and the offender, but it is also guided by several applicable legal principles.

[111] Section 3 of the YCJA carefully details the guiding principles that must be relied on when interpreting provisions in the legislation.

[112] These principles in s. 3 inform the purposes of youth sentencing that are detailed in s. 38 of the YCJA:

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; 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.

[113] In your case J.C., there are aggravating factors that center on the facts of the offence, your responsibility in it, and the harm that you have caused.

[114] The circumstances of the offence are very serious. You had armed yourself to sell drugs. When a dispute arose, you fired a shot at the victim that has caused him great harm and negatively changed his life. Such a crime needs to be condemned.

[115] Your role in the crime is significant. Yet, it is somewhat mitigated. I do not speak of the conflict that arose but the impairment of your judgment by drugs. Moreover, your substance abuse has its origins in the trauma of your life and the systemic factors involved. These were not entirely within your control.

[116] You have a prior youth record including convictions for a crime of violence: an armed robbery. Additionally, at the time of the offence, you were on probation and were also prohibited from possessing a weapon.

[117] But as I have already spelled out in my decision, there are a lot of mitigating circumstances.

[118] Before the arrest, your life was marked by abandonment, instability and chaos, abuse both as a child witness to violence and as a victim, academic challenges, loneliness, financial hardship, drug abuse, mental health challenges and the development of anti-social characteristics with its origins in trauma, both individual and systemic.

[119] Since your arrest, you have greatly matured. You are motivated. You have shown you are capable of respectful relationships with others. You have pled guilty. You have shown not only remorse but insight. You now have a purpose and strive for greater meaning in life.

[120] I find there is no need to be concerned about specific deterrence.

[121] The s. 34 assessment shows that significant counselling is still required but that can be done in the community. Given the great strides you have made, this will not endanger community safety.

[122] I cannot accept the Crown's alternative argument not to credit you for the pretrial custody and give you two more years of incarceration. Because of your age, you would serve that in an adult facility. All the evidence, including the psychiatric opinion, holds that this would be a disaster. To give you two more years will risk everything you have gained. Your rehabilitation prospect will, I am afraid, be crushed. And that will not only be of no benefit to you, but also to your family, or the community and our safety.

[123] Importantly, further incarceration is not necessary to hold you accountable and to denounce your crime. In assessing accountability and denunciation, the pretrial custody is an important factor. You have done enough jail time to pay for your crime.

[124] There is an alternative to incarceration in this case and I am required to consider it. A structured probation order will promote your rehabilitation whereas a sentence of incarceration will adversely impact your prosocial progress.

[125] While on probation, you will have access to extensive programing which will reinforce respect for societal values. You will be required to take steps to address the harm done to the victims and the community. Central Toronto Youth Services has found you eligible for the Intensive Support and Supervision Program (ISSP). I am satisfied that the test under s. 42(2)(l) of the YCJA has been met and that this should be a term of your probation. Along with other eligibility requirements, for a youth justice court to impose an ISSP, the young person needs to have some kind of psychiatric disorder or learning disability. According to the s. 34 report, you would qualify.

[126] The ISSP will give you a high level of community support and supervision in the community to assist with changing behaviour.

[127] The consequences will be meaningful for you because of your unique needs and experiences and will involve various community, educational and social agencies. The intensive counselling will be difficult but will help you and make you accountable. Given your learning disability, your academic goals will not be easy to achieve. To be the type of social worker you wish, will take a life of dedication and discipline.

[128] You have fully acknowledged the harm done and you have done everything possible to establish your potential to be a contributing member of society. I find that you are truly remorseful and fully committed to change.

[129] I acknowledge that I must also consider parity of sentencing and whether the alternatives to custody being considered by me have been used in respect of young persons for similar offences committed in similar circumstances.

[130] In R. v. Peters, 2010 ONCA 30, 250 C.C.C. (3d) 277, an Indigenous adult was sentenced to probation after pleading guilty to aggravated assault. Peters swung a beer bottle at someone, causing two serious gashes, ongoing pain and scarring. The Ontario Court of Appeal upheld the sentence, holding that custodial sentences are not a requirement for violent offences, especially not for Indigenous offenders stating at para. 19: "to say that an offender in such circumstances – particularly an aboriginal offender – must serve a custodial sentence is to state the sentiment too strongly, and is inconsistent with the Gladue jurisprudence and, indeed, the jurisprudence respecting sentencing generally."

[131] In R. v. D.T., 2020 ONCJ 542, at para. 78, a youth was found guilty of aggravated assault after luring and stabbing another youth twice in the neck and received two years of probation. D.T. had a learning disability and mental health struggles but behaved well and completed high school during his pre-sentence house arrest. The judge decided a non-custodial sentence was appropriate, finding that "a custodial sentence for D.T. is not required to assist in his rehabilitation and reintegration back into society" and that the judge had "considerable concern that it would have an adverse impact on him."

[132] As an alternative to jail, a sentence of probation will help to deal with the problem of Indigenous overincarceration: per s. 38(2)(d) of the YCJA. While your offence is serious, ISSP's have been ordered in other cases involving similar serious offences such as armed robbery and manslaughter: R. v. K.H., 2019 ONCJ 525; R. v. M.J., 2024 ONCJ 455; R. v. A.B., 2024 ONCJ 486.

[133] I find your circumstances as an Indigenous young offender with a traumatic background, mental health/learning issues, strong prospects of rehabilitation, and a long period of pre-sentence custody make probation with an assortment of strict conditions appropriate in this unique case.

[134] Taking account of the pretrial custody you have done (though you will not get pre-trial credit for it) a maximum period of probation is proportionate to the seriousness of the offence and your degree of responsibility for the offence.

[135] I do think a curfew would be appropriate, at least for a few months at the start of your probation. Curfews are a common condition of probation orders for youth: see, for example, R. v. K.D., 2025 ONSC 1479, at para. 101; R. v. E.R., 2024 ONCJ 713, at para. 69; R. v. Atkinson, 2024 ONCJ 425, at paras. 110-111.

[136] This curfew condition of probation is being imposed to rehabilitate and not punish: R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R. 399, at para. 13. Keeping you at home at night, with the supervision and support of your family, will help you avoid any possible temptation to engage in illicit activities and re-offend.

[137] You will be placed on a period of probation for two years. The terms and conditions of your probation are the following:

1. Keep the peace and be of good behavior;

2. Appear before the Youth Justice Court when required to do so;

3. Report in person to a youth worker immediately and after that, at all times and places as directed by the youth worker;

4. Live at a place approved of by the youth worker and not to move from that address without the prior permission of your youth worker;

5. You must not reside or work in a place where firearms, imitation firearms, ammunition, restricted weapons, prohibited weapons or explosive substances are kept or stored;

6. Obey a curfew for the first 12 months of your probation and be in your place of residence or on the property of your residence between the hours of 11 p.m. to 6 a.m. daily except:

• While in the direct company of your mother;
• While in the direct company of an adult approved of in advance in writing by your youth worker;
• for any medical emergency involving you or any member of your immediate family if written justification is provided to your youth worker within 72 hours of any such absence during curfew hours;
• while travelling directly to, directly from and while attending at a place of employment that has been approved of by your youth worker;
• while travelling directly to, directly from and while attending at a place of educational, vocational, counseling or treatment programs that have been approved of by your youth worker;
• while travelling directly to, directly from and while attending at a place that has been approved of by your youth worker to complete your community service hours; or
• with the prior dated written approval of your youth worker to be carried with you at all times while out of your residence during curfew hours.

7. You shall attend and comply with the terms of the Intensive Support and Supervision Program (ISSP) for a minimum of 6 months, and thereafter as directed by the youth worker and there will be a court ordered review of your progress from 4 months from the date you enter the program;

8. Attend and actively participate in all culturally appropriate assessments, counselling or rehabilitative programs as directed by the youth worker including but not limited to the programs recommended in the Gladue Report and the s. 34 assessment, and complete them to the satisfaction of the youth worker;

9. You shall sign any release of information forms to enable the youth worker to monitor your attendance at and completion of any assessment, counselling, or rehabilitative programs;

10. Do not associate or communicate in any way directly or indirectly with Gavin Smith except:

• to write a fulsome letter of apology to the victim to the satisfaction of the youth worker. The letter of apology is to be completed within two months of the start date of this probation order; and/or
• to engage in mediation with the victim that has been arranged by the youth worker with the consent of the victim;

11. Do not be within 50 metres of any place where you know Gavin Smith to live, work, go to school, or frequent except:

• to engage in mediation with the victim that has been arranged by the youth worker with the consent of the victim;

12. Attend an educational and/or vocational program approved of by the youth worker and complete them to the satisfaction of the youth worker;

13. Make reasonable efforts to seek and maintain suitable work approved of by the youth worker unless your youth worker determines that it would not be feasible considering the counseling and treatment programs;

14. Do not possess any weapon(s) as defined by the Criminal Code;

15. Do not buy, possess or consume any prohibited or controlled drug or substance unless with a valid medical prescription;

16. You shall perform 120 hours of community service work. The work is to start no later than a week from the start date of this order and shall be completed at a rate of not less than 10 hours per month. You shall complete the work as directed by and to the satisfaction of the youth worker. The community service work may include mentorship programs or leadership programs approved of by the youth worker where you share your experiences with other youths.

[138] In addition to the ISSP as part of the two years of probation, there will be the following ancillary orders:

• DNA order.
• A weapons prohibition order for life pursuant to subsection 51(1) of the YCJA.

[139] J.C., you have spoken about your goals in social work. You have spoken about your desire to help youths. To give back. To make amends for your crime. In your s. 34 report, I read the following:

"J.C. requested that the following statement be included in the report: "I just want a better chance of living."

[140] Well, J.C., I am giving you that chance. Because I believe from everything I have seen, you will do that.

[141] Nothing is certain in life. No one can predict the challenges the future brings. But I find that you have done enough time in jail. You have done enough to show that you are a different man. Not the youth who committed this terrible crime. But now a man. Who must face the future, with all its uncertainty, the very best you can. To do and become what fate has in store for you.

[142] In that, I leave you with the wise words of the philosopher Jeremy Bentham who once said: "Whatever you are in life, be a good one."

Justice S. Nakatsuru

Released: September 26, 2025

[1] In setting out the Crown's alternative position, I have considered the fact that there have been discussions about the defence agreeing to plead to another offence increasing the maximum to a 3-year youth sentence. However, this is not a concrete option before me and ultimately, does not affect the sentence I impose.