Court File and Parties

Court File No.: YC-23-30000006-0000

Date: October 17, 2025

Ontario Superior Court of Justice

Between:

His Majesty the King

and

I.T., Defendant

Counsel:

Bryan Guertin and Rhianna Woodward, for the Crown

Monte McGregor and Amanda Worth, for the Defendant

Heard: August 5-6, 2025

Justice: S. Nakatsuru

Reasons for Sentence

Introduction

1This is a hard decision. One of the hardest in my many years as a judge.

2It was not made any easier when two weeks before I.T.'s sentencing hearing for the very serious crimes of second-degree murder and the illegal firing of a handgun, this country's highest court changed the law in deciding when it is right to sentence a young person to an adult sentence rather than a youth sentence. See: 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.

3The Supreme Court of Canada made it harder to do that.

4The murder was shocking in its brutality. A vulnerable, unsuspecting, elderly taxi driver shot many times. By you, I.T., riding as a passenger in the back of his cab.

5Why? To this day, no one knows.

6I have thought long and hard about your sentence.

7This is what I have decided.

A. THE CRIMES

1. The Murder

8At the start of the jury trial, you pled guilty to manslaughter. The Crown did not accept that plea. The trial was all about whether you had the intent to commit murder or manslaughter. You testified how intoxicated you were by drugs and alcohol. The jury did not believe you.

9We can all agree about the basics of what happened the evening of October 24th, 2021. You were at a convenience store on Queen Street West, Toronto. On surveillance video, we saw you walk into the store shortly after 8:00 p.m., talk a bit to the store clerk and use your phone to make two calls to Beck Taxi. Mr. Christopher Jung was dispatched to the call.

10Mr. Jung picked you up and drove you to Eglinton Square Plaza in Scarborough. Mr. Jung's taxi entered the parking lot. He stopped briefly outside the Metro Grocery Store before he drove through the lot, back onto a road towards a set of stop lights at Pharmacy Avenue. At this time, you reached under a COVID 19 plastic shield separating the back seats from the front and fired eight shots. At close range. Mr. Jung was struck seven times. The taxi proceeded through the intersection and came to rest against the chain link fence on the east side of Pharmacy Avenue. There, Mr. Jung's life tragically ebbed away.

11No evidence led at trial shows any motive. Valuables including quite a bit of cash were left in the cab. There was no evidence of any provocation by Mr. Jung. Even yourself, in the materials collected for sentencing said there were no problems in the cab.

12Before the taxi crashed, you rolled out of the moving vehicle as it crossed the intersection. On video, you are seen doubling back and picking up something, likely the gun you had dropped when you hit the roadway. As you made your way through the plaza parking lot, a witness saw you cradling something in your arms. Again, likely the gun. You then headed quickly and directly back to 90 Parma Court, where a friend of yours lived. It took just over seven minutes to do that.

13When you entered through the south stairwell of 90 Parma Court, you covered your face with your shirt. You crossed over to the north stairwell. You walked up to the 4th floor apartment of your friend, Mr. Baird. You changed your clothes. Your foster-brother, D.C., who was there at the time, ordered an Uber for you to a residence in Brampton. You and D.C. left in the Uber just before 9 p.m.

14After that, you fled to British Columbia with Mr. Baird. Cell phone records for your phone show that there was no activity on your phone after 8:55 p.m. on October 24th. You also dyed your hair sometime after the murder. You were arrested a couple of months later in Saanich, British Columbia, on January 28, 2022, and brought back to Ontario. When you were arrested, you were in a car with two other males and a .40 calibre firearm was found at your feet.

The Issue of Intoxication

15At trial, you testified about how you had spent the evening of the murder in the company of your friends and had taken so much drugs and alcohol, you were essentially blacked out and cannot remember anything. In other words, you did not have the intention to commit murder.

16The jury's verdict means in shooting Mr. Jung you either intended to cause his death or intended to cause bodily harm you knew was likely to result in death but were reckless as to whether or not death ensued. In short, the men and women of the jury did not believe you were as intoxicated as you claimed. Nor did the total evidence on this issue including your expert toxicologist raise a reasonable doubt about your intent to commit murder.

17That said, at the sentencing hearing, there remains a dispute about how intoxicated you were.

18To rely upon an aggravating fact, the sentencing judge must be convinced of the existence of that fact beyond a reasonable doubt. To rely upon any other relevant fact, the sentencing judge need only be persuaded on a balance of probabilities.[1]

19In my own independent assessment of the evidence at trial, I find you were not as nearly as intoxicated as you have claimed. You were captured on multiple surveillance videos throughout the evening of October 24th, 2021. I recognize that you seemed to stumble at the doorway to the entrance to the stairwell at 90 Parma Court. But that was brief. At no other point do your movements or behavior show any great signs of impairment. The recording of your call to the Beck taxi dispatcher that night shows no evidence of intoxication and is like calls you made to a taxi dispatcher at other times. Finally, your overall conduct of fleeing the scene and seeking help from friends is not consistent with any great intoxication.

20So, I am not satisfied that you were very intoxicated when you shot Mr. Jung. I do find you likely did have some drinks and did do some drugs that night. That is in keeping with who you were, your addictions, and the social context of what you were doing that night. However, although not stone sober, your degree of intoxication does not rise to the level that it is a mitigating factor on sentence.

2. Possession and Discharge of a Firearm while on Probation and Prohibited

21Three weeks before the murder, on October 3, 2021, in the early morning hours, in the parking lot area of 90 Parma Court, you walked by a car that had just dropped off a passenger. As the car started to drive away, you pulled out a loaded illegal firearm you had concealed on your person. You fired at least five shots at the car as it sped off out of the parking lot. You fled on foot. The police were called. They found casings and bullet fragments at the scene. One damaged the front of a parked SUV. Another had struck a wooden fence around a garbage area in the parking lot. The gun used was the same gun that you used to kill Mr. Jung. At the time of the murder, the police were looking for you for this October 3 shooting.

22You were on two probation orders and three weapons prohibitions at the time.

23Those are the facts of the offences.

24The focus of the sentencing hearing revolved around the second-degree murder. While the Crown argues for an adult sentence for both sets of offences, in a large part, their core position is that the October 3, 2021, shooting offences should be viewed as part of the context for why an adult sentence is correct for the murder conviction.

B. THE POSITION OF THE PARTIES

25I cannot do justice to the thorough, helpful, and passionate arguments made by the Crown and the defence, in any review of the position of the parties. So, I will not try. In short, the Crown seeks an adult sentence. Your lawyer argues for a youth sentence.

26I will now briefly talk about the legal test I must apply.

C. AN ADULT OR A YOUTH SENTENCE

The Legal Test

27The starting point for all sentencing decisions involving youth is a presumption of diminished moral blameworthiness. This presumption is enshrined as a principle of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms. See the case of R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3. Later, Parliament put into statute this presumption in s. 72(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA"), which applies 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):

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.

28In the recent cases of I.M. and S.B. 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 a 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.

29This is what the Supreme Court said about the onus on the Crown in I.M., at para. 129:

Because the burden on the Crown is to rebut the presumption beyond a reasonable doubt, it cannot be said that the onus is not a heavy one. The fact that the Crown, facing this burden, must displace a constitutionally mandated principle to rebut the presumption, has led some commentators to say that adult sentences will be "exceptional"… Be that as it may, it is undoubtedly true, as the Court recognized in D.B., that the presumption can be rebutted but that the Crown's task of doing so beyond a reasonable doubt is not to be underestimated. Indeed, the YCJA reflects a broader principle of restraint in punishment…. It is mandatory that the court not commit a young person to custody except in particular circumstances, but a violent offence may justify a custodial sentence (s. 39). In addition, the YCJA provides for custodial youth sentences for a conviction for first or second degree murder (s. 42(2)(q)), indicating that Parliament contemplated that youth sentences could hold young persons sufficiently accountable for these more serious offences. The YCJA also recognizes the shared responsibility of members of society to address young persons' developmental challenges, reinforcing the law's focus on rehabilitation and age-appropriate responses to young offenders….[Citations omitted.]

30The 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.

31I must highlight here how these Supreme Court of Canada cases changed the law in this province. First before the change, the onus was not on the Crown to prove this part of the test beyond a reasonable doubt. It was on a lesser standard. Second, the seriousness or gravity of the offence was a factor to consider on this part of the test.

32If 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. At this stage, the 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: I.M., at para. 173.

Stage 1: Has the Presumption of Diminished Blameworthiness Been Rebutted?

33To start, I want to emphasize that the principle of diminished moral blameworthiness is super important. It is a principle of fundamental justice under the Charter. Our constitutional law and, indeed, the very way humans live in society, acknowledges that children are not the same as adults. Therefore, the criminal law applies differently to children. The law recognizes that due to the way children grow, develop, and go through their teenage years, we cannot hold them to the same standard when it comes to morally judging their conduct before 18 years of age. Even the very same criminal conduct if committed by an adult. Even for the most serious of crimes like murder.

34Said differently, due to their age, young people have heightened vulnerability and a reduced capacity for moral judgment. They can act without thinking of their actions. They may lack empathy for their victims. Even for terrible violent crimes, young persons who act out of immaturity or impulsiveness should not be dealt with as if they were proceeding with the same degree of insight into their wrongdoing as adults.

35Under this stage of the test, 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. Although I summarize it, let there be no doubt I have considered it all carefully.

36Personal 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.M., at para. 151. I must consider factors such as a young person's actual age, background, sophistication in thinking, capacity for independent judgment, behaviour after the offence, whether the person was living like an adult, cognitive, emotional and mental health, and susceptibility to external influences.

37Let's start with a basic fact that must root the analysis. At the time of the offences, you were 17.5 years old. You are now 21.5 years old. So being close to 18, is a factor, but it is only one factor. This was recognized in I.M., at para. 199 where the Supreme Court said:

At the time of the offence, I.M. was 17 years and 5 months old. It was not a mistake for the sentencing judge, or for the Court of Appeal, to observe that I.M. was on the "cusp" of his 18th birthday when he committed the offence (he was in fact about 7 months away from that date). But, at best, it was one contextual factor among others relevant to developmental age. I.M. was no less entitled, by statute and as a matter of constitutional law, to the benefit of the presumption of diminished moral culpability simply because he was close to coming of age. While proximity to adulthood may lean in favour of rebutting the presumption, it is not sufficient. Even those on the cusp of adulthood are presumed to have diminished moral blameworthiness in the absence of contrary evidence. On re-sentencing, the Court must begin from the premise that I.M.'s developmental age is coincident with his chronological age at the time of the offence. If the Crown is unable to prove otherwise beyond a reasonable doubt, then I.M. remains entitled to the benefit of the presumption and must be sentenced as a young person and held to account for the murder for which he was convicted under s. 42(2) YCJA.

38I will now apply the test to the facts of your case.

Your Life Up to the Offences

39Abandonment and hardship scarred your early life. It pervaded your childhood until your guardian who I will refer to as "N.C.", brought you into her family, as a single mother of seven children. She did that after finding you largely living on the streets as a young teen.

40You were born in Texas. As a child, you really did not know your biological father. He had been in jail and out of your life. Your time with your mother was punctuated repeatedly by her leaving you in the care of others. Her life was unstable. She first left you with your stepfather when you were just two. At 10, she took you to Alaska but left you after six months. You were moved around from place to place as the adults in your life struggled with their own demons. Eventually, in 2017, you moved to Canada with your mother. It is sad to say that it does not come as much of a surprise that she again left home without any notice, after a police raid, leaving you in the care of people N.C. has described as "street people".

41You were placed into the temporary care of the Children's Aid Society. But you ran from group homes to stay with friends. You were afraid of group homes.

42To this day you struggle with the loss that defines your relationship with your mother. It has left you affected by a profound sense of disappointment and trauma. I have little doubt the parental abandonment has bent your development. Moreover, it led to you becoming street involved and associating with criminal groups at a very young age.

43In 2018, N.C. became your guardian. She was working hard to support her family and doing post-secondary studies. Money was tight but basic needs were met. The neighborhood is described both as relatively safe, but also with a moderate level of crime including shootings. You felt unsafe there.

44You were in detention in 2019 a couple of times but returned to N.C.'s home in 2020. But your house was shot at. You received an emergency transfer to another community housing placement downtown. You have described that neighborhood as a "super dangerous area". Largely I gather because you and your family were from the Parma Court neighborhood, which had a rivalry with this new neighborhood.

45You were then in and out of custody from 2020 until you were arrested for these offences. You lived with N.C. when you were out of custody. Or lived with friends. Although you are reluctant to say, you admit that some of your peers have been involved in crime and anti-social behaviour. You feel somehow you owe them as they took care of you despite them being involved in crime or "street politics". Although, none are gang members, N.C. says these older peers have had a negative influence on you. They did delinquent activities. She describes you as a follower, easily impressionable, impulsive and immature.

46When out of custody, you did show some independence. For a month while you were in the community after being released from detention and before the murder, you stayed with whom you wished. You stayed in rentals. Bought yourself clothes. Drove a car. You sold drugs, did not go to school, and did other anti-social things. I agree this supports the Crown's argument, but it is important not to overemphasize these things. Many are just day to day common acts that teenagers can do as much as adults.

47You have a close and positive relationship with N.C. That is good. The two of you have argued in the past mainly about you not following the rules. But you say now you have deeper talks with her. You recognize she is a positive person in your life. And you should have listened more to her when you were in her care. N.C. has said you have matured a lot and you recognize you cannot go back to your old lifestyle.

48While in custody on the charges, you have renewed contact with your stepfather in the United States. You also have had brief telephone conversations with your mother every few months. She too now lives in the United States. You have reached out to your biological father and spoken to him. You have tried to connect with him despite the past estrangement. He has turned his life around. You hope one day you can move to Texas and have a fresh start perhaps with the help of your father.

Morris Considerations

49I find you have suffered anti-Black racial discrimination. Both in your life and systemically. This is something I must think about as stated by the case of R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641; S.B., at para. 24; I.M., para. 173.

50These factors do not have to have caused the offences. The Crown admits that. But they argue that they are not connected to your offences.

51I do not agree. What matters is the connection to the issue that I have to decide. That is whether the presumption of diminished moral responsibility has been rebutted. This is different from whether there is a connection to your offences per se. A disadvantaged background and the connection between that background and systemic discrimination in the community can play a role in cognitive development and maturity. I find that there are some connections to that issue. However, I do not want to overstate it.

52Later in my reasons, I will refer at length to an assessment conducted by mental health experts done under s. 34 of the YCJA. For the moment, I point out that in the s. 34 report, on the Adolescent Discrimination Distress Index, you have reported experiences with racial discrimination such as being hassled by store clerks and the police, being perceived as unintelligent, and people being afraid of you. You have also experienced discrimination in your education, and discrimination from other youths such as the use of racial slurs. You reported varying degrees of upset at all this.

53You admit that though you are not a gang member, you have been involved in "street politics" and are loyal to the Parma Court area. People who helped you have influenced you to be that way. You saw people in the area shot and some of your friends have died violently. You explained you had enemies from rival areas because of the people you hung out with. Your peers had enemies from other "hoods". You were following the pack as you felt safe with them and liked them. Your mother had connections to some of these people and they were already looking after you as a younger child. You started selling drugs by age 14. You wanted to stay safe, get money, and not be poor.

54There was a lot of pressure from bad peers. You got into this bad lifestyle. Violence seemed to permeate this lifestyle. You started to carry, first a knife, and then at 15, a gun for protection.

55You identify as a Black male trying to "figure your way out." Although you knew of the history of Black people, you say you have never really experienced that. But you have felt the sting of discrimination, even in detention once people learned where you were from.

56You now say that you want to move away from all that. You say "I was a dumb kid then. I am not the smartest now, but I know better now." You want to move away from the city to do that. You feel you can now speak up for yourself.

57Your probation officer confirms your negative peer associations when you were in the community and being involved in street politics.

58I can take judicial notice of the fact that Black individuals and families often disproportionately have lower incomes and by necessity, live in poorer neighborhoods. With that comes negative influences upon youths. This systemic circumstance has affected you.

59In terms of schooling, until recently, you have not done well. We know about your schooling in Canada. Not much about your time in the United States. In Grades 7 and 8, you had learning problems in reading. You had an Individual Education Plan. Also, there was conflict in school. You used bad language, were aggressive, and were suspended five times. Poor grades and incomplete courses were the result.

60The same can be said about your high school years. Attendance was poor. There were behavioral issues. In school, you did not complete a psycho-social assessment that you needed. At the same time, you have been described as pleasant and easy to get along with. Your challenging living situation was noted in the school records.

61In my view, doing so poorly in school, as a young Black man, is impacted by systemic racism as well as your individual circumstances. I refer to the evidence found in the experts' report in the Morris case: See Appendix A in R. v. Morris, 2018 ONSC 5186, 422 C.R.R. (2d) 154. I find it has had the same impact in your case. It is worth stressing that when you were in custody, in 2019-2020 at the Roy McMurtry Youth Center ("RMYC"), you did better with both your attendance and grades. Maybe it was the structure. Maybe you were better motivated. Whatever the reason, when you were in the community, you did not do well in your education.

62Both the systemic factor of anti-Black racism, and the poverty and instability you experienced growing up must be accounted for under stage 1. They have a connection to your sentencing and your offences. You did not get a good start due to these factors. You did not have the advantages that others had. This led to your life's path being moved away from light towards darkness.

63This is not to say somehow you are blameless for your crimes. Anti-Black racism did not murder Mr. Jung. Poverty and instability did not fire off that gun so recklessly in Parma Court. You did. For that you must be accountable.

64Nonetheless these factors must be considered. Understanding your trajectory in life helps place your decisions in context, potentially demonstrating increased vulnerability, diminished judgment, and a reduced capacity for moral decision making. The value of social context lies in what it can tell a sentencing judge about the offender, not the demographic groups to which that offender belongs: I.M. at para. 167.

65On the fact-specific circumstances of your case, this consideration makes it harder for the Crown to prove stage 1 beyond a reasonable doubt.

Prior Criminality

66You have a bad prior history of committing criminal offences. It started on February 28, 2020, when you were convicted of quite a few offences, including property crimes, failing to comply with court orders, impaired driving, assaulting police and possessing a firearm. You had done a lot of time in pretrial custody for which you got credit and were placed on probation for 2 years. August 28, 2020, again after spending 240 days in pretrial custody, you were convicted of possession and transporting a firearm and received an intensive support and supervision order (ISSP) for 12 months. Finally, September 10, 2021, you received probation for a fail to comply, robbery, and possession of stolen property.

67Therefore, your past illegal behavior advances the Crown proof. And you did not learn from this experience with the youth criminal justice system. That said, in my opinion, these convictions are marked by immaturity. N.C. told the probation officer as well as the s. 34 assessors that negative peer associations played a major contributing factor to your adoption of a criminal mentality and negative lifestyle. This will be explained further.

68The Crown also relies on some of the evidence called at the sentencing hearing.

69From that evidence it is clear you were not abiding by the terms of your probation. There were two probation orders at the time of the offences. Of course, you were not keeping the peace and being of good behaviour as required by the court order. Nor were you living where you were supposed to be. Once you were with your girlfriend. You were charged with failing to comply for that. While on probation, sometimes you opened up to your probation officer. Other times you did not. You got upset when you wanted additional community contacts to be added but were told no. You did not get a therapist assigned to you because you went "missing in action". You did not feel the ISSP, though you did it, was of much benefit.

70As well, you were under three separate weapons prohibitions. Yet, there you were with the gun.

71Failing to obey the probation orders and weapons prohibitions and not living with your guardian can be a sign of asserting independence and is consistent with adult maturity. On the other hand, recklessly putting yourself at risk is also consistent with an immature adolescent level of judgment.

72All that being said, while I have placed this factor into context with care, there is no doubt it goes a certain distance in rebutting the presumption. It shows some independence and knowledge of the consequences of one's actions. Yet at the same time, this factor cannot be divorced from the other evidence led on this sentencing. This includes the s. 34 assessment and the other sources of information. When I look at it all together, I am not so certain, your criminal past shows much adult judgment. Digging deeper, it likely reveals more about your immaturity then your maturity. This was the approach taken by the Supreme Court of Canada in I.M. at para. 205 where they said the following about I.M.:

On its face, I.M.'s difficult life circumstances are suggestive of a heightened vulnerability that reinforces, rather than overcomes, the presumption of diminished moral blameworthiness (D.B., at para. 41). Situating I.M.'s early criminal involvement in this context supports the view that his behaviour is consistent with adolescents' susceptibility to peer pressure, proneness to risk-taking, and tendency to not appreciate long term consequences. The Crown's onus required it to explain how, notwithstanding these difficulties, I.M. had the moral sophistication and capacity for judgment beyond his years at the time of the offence.

The Circumstances of the Offences

73Do the circumstances of the offences shed any light on your moral sophistication, independent judgment, and maturity?

74You say you were under the influence of ecstasy, cannabis and alcohol. You don't remember much more than getting in the cab. You expressed sadness for the victim, the victim's family and for yourself. But the jury did not accept your level of intoxication and I find it did not exist to the degree you claim. I find you are likely in denial about what you did and what you remember.

75As noted, I accept that you were under the influence of these substances but you were not intoxicated. I do not see your use of substances on the nights of the offences as going either way in terms of shedding light on your maturity.

76You acted alone. Both on the night of the murder and when you fired off the gun in the parking lot. In other words, you were not under the influence of others to commit these crimes. The Crown also points to the fact that you deliberately armed yourself with your gun. In contravention of court orders. These facts support the Crown.

77There is no evidence of any calculation, deliberation, or thought going into the murder. While you pulled back the plastic shield separating the front and the back of the cab, that was not hard to do. Based on everything I know, this was a senseless taking of an innocent life. Based upon what I have learned about who you were back then, I find the shooting was an irrational and impulsive act. This is consistent with the s. 34 assessment.

78In addition, some things that you did go against the finding that this was a morally sophisticated crime that displayed mature judgment. For example, you rolled out of a moving car, when there was really no reason to do that, risking harm to yourself. It is consistent with youthful panic. As well, while you did perhaps run back to get the gun you dropped, you did not conceal or hide it. Rather a witness saw you going through the parking lot of the mall openly cradling the gun.

79Regarding the conduct of October 3, 2021, in the s. 34 assessment, you said you don't remember too much. You said you were not thinking much and were under the influence of cannabis. You did not know the people in the car. You later recalled they asked you something and this caused you fear given the time of night and the circumstances. You say it was a reaction to anxiety and unplanned. You recognize the seriousness of your actions and are glad no one got hurt.

80The Crown points out the video of the shooting incident is not as reactive as you said. The car had left the scene before you pulled out the gun and fired it. While this is true, I don't see a huge inconsistency as the way you may have explained your actions may not have been accurately recorded or you may have inaccurate recall. Regardless, I do accept this was unplanned. Moreover, it is consistent with the type of person you were then. Impulsive and reckless. It has the character of a crime of bravado, done so openly and brazenly, that it shows immaturity.

81Both crimes have no element of deliberate planning that could suggest more advanced moral and cognitive development. Circumstances of the offence that demonstrate critical thinking, consideration, adult-like judgment, or demonstrate the understanding of the consequences of their actions are relevant considerations when assessing whether the presumption has been rebutted. While some factors like that exist in the commission of these offences, other circumstances point away from it.

Post-Offence Conduct

82The Crown also makes much of your actions afterwards. Your flight, attempt to conceal your involvement, and refusal to turn yourself into the police. The Crown submits it shows calculated conduct, problem solving to neutralize risk, and independence from others including your mother. It is submitted that this critical thinking helps prove your maturity.

83I agree. But only to a degree.

84After the offence, you walked a distance straight to Parma Court. To your friend's place. You covered your face in the stairwell. Changed clothes in the apartment and took an Uber to Brampton to stay at a friend's girlfriend's place.

85Then you fled to British Columbia. Dyed your hair. Stopped using your cellphone. The handgun was never recovered.

86If you did this all on your own, then I would fully agree with the Crown. But I cannot be oblivious to the fact that you were helped by others who were older. On the night of the murder, you did not flee or hide using just your own wits and resources. Instead, you went to a friend and got help. I am not sure that without their help, you would have been able to make such a getaway.

87I accept what you said in your s. 34 assessment that your peers were telling you that you should leave for British Columbia. Someone organized the trip for you and you were driven there. Given that you did not have a car and that you have trouble even navigating city streets, you would not have been able to do this alone. You stayed with someone on Vancouver Island for three months. According to you, you did not go out. While no doubt you changed your appearance to avoid being captured, this did not take a great amount of adult judgment to do. As Dr. Vinik, the psychologist who prepared the s. 34 report, pointed out in her testimony, someone was supporting you in all this and you did not do it independently.

88Again, while some of this supports the Crown's proof, it does not go a great distance in doing that.

Your Time in Pretrial Custody

89At the beginning, you could not have been worse while in jail. It has taken some time, but you have done well in your time at the RMYC.

90Remarkably, you have turned your schooling around. You went to classes. You worked at it. Not easy given your learning disability. But you have graduated from high school in May of this year. Mr. Michael Pankarican, the Vice-Principal of the RMYC school, who has known and interacted with you over the years said this about you:

He observed that [I.T.] has become less impulsive as he has matured, and there are currently no concerns regarding his academic, behavioural, or social functioning. [I.T.] similarly reported no behavioural difficulties in school and said he gets along well with teachers and peers.

91You also have volunteered at RMYC assisting with laundry and cleaning. You now have work goals upon release. Interest in the trades such as welding or roofing. Realistic goals. You recognize now that having a job is important to have a stable life and stay out of trouble. You recognize as well that you have to distance yourself from "friends" who encouraged you to do bad things and be street involved.

92You have done many programs while at RMYC including the Resilience, Identity, Transformation, Empowerment, Self-Determination program, Christian oriented programs, and the Urban-Rez program.

93Ms. Mathews, your current social worker, who has been checking in with you weekly since August of 2024, has noted significant improvement. Previously, you were involved in many physical altercations in detention both with your peers and staff. But over time, you have become respectful and engaged. You have taken on a positive role, encouraging other youths not to argue, and have taken on a good "big brother" attitude. You are at the highest level of incentives. Ms. Mathews describes you as a "changed man". She has no concerns.

94Dr. Tina Dadgostari, the psychologist you see at RMYC, has known you since you were 13. At that age, you were closed off and did not engage. Since September of 2024, she has seen a "sharp change in your presentation." Previously, due to your misconduct and history of anger and aggression, you had become a high-profile youth. Since your return to RMYC in August of 2024, from another youth detention facility, you have been receiving preventative counselling and programing, though you could not always tolerate hour-long sessions due to your cognitive deficits and difficulties processing information.

95Dr. Dadgostari does not now see any behavioral or anger concerns. The doctor "believes this is due to increasing maturity and also [you] taking [your] legal situation more seriously." She elaborated that before you felt like you did not have much to lose. That has changed.

96The doctor does not report issues about mood, anxiety or psychosis. You are social, smiling, and not impulsive or reactive. She described how you have distorted beliefs about others, such as in how you make sense of your upbringing. Being in mainly survival mode, you do not fully appreciate what you have been through.

97Ms. Sukhu, your current probation officer, having worked with you since December of 2022 said this about you:

Generally, Ms. Sukhu stated that [I.T.] has matured considerably since she began working with him. She said he was previously very angry, aggressive, and disconnected but is now more controlled and, instead of aggressing, asks relevant questions in order to understand the situation. She added that [I.T.] appears to be genuinely trying to do better. She spoke of his previous anger and aggression, which was at times severe enough to harm others, to be further to self-regulation difficulties rather than antisociality; she noted that after these incidents, [I.T.] interacted positively with the same staff and peers.

98Other detention staff have described you positively.

99At the sentencing hearing, Dr. Vinik testified that this time, when you returned to RMYC, they instituted proactive services, rather than reactive, and this may have made a difference in your better functioning. In the past, you were not ready to be involved with the services.

100Let me briefly deal with the other witnesses called by the Crown at the sentencing hearing. I have taken their evidence into consideration. However, they were not all that helpful to me. For two reasons. Both gave evidence about the I.T. that you were before your change. And their evidence was ultimately consistent with the other information available to me, for example, from the detention records the Crown produced. In summary, early on there was more bad than good. Aggression is well documented. In your eyes, you felt provoked by others. But then there was the change.

101The Crown witnesses were the following. Rossanna Tamburro was your previous youth probation officer in Scarborough starting in February of 2020. She stopped supervising you in October of 2021. Sean Tomlinson, presently the Youth Center Administrator at RMYC, has known you since 2018, but had interacted with you more when you were first arrested back in February of 2022. He was taken through the serious incidents that you had at the various institutions. You were moved about due to them. In his experience, this was atypical of most youth in detention facilities. In cross, he observed that the last institutional misconduct summary was on July 16, 2024. The final witness, Mr. J.R. Legault just testified about programs available in federal correctional institutions.

102In my opinion, what you say now shows insight. You believe you have matured and can solve the problems that happen in detention. Before, you felt you could not back down and look like a "punk". Now, you say you do not want to waste your energy. You do not want to focus on things you cannot change. You recognize that the staff are just doing their job. This change has been gradual and the professionals have helped you see things this way.

103Yes. Your changed behavior could be an attempt to fool me. To get a youth sentence. I cannot rule that out. But I do not believe you could have kept that up. Given who you are. Your cognitive weakness. Your impulsiveness. How you react in the past to other youths and staff. Cracks would have shown by now. The people who deal with you would have suspected what is really going on.

104Yes. The upcoming trial may have been the reason for the change. But that does not have to be a bad thing. As Dr. Vinik said, it could have been the wake up call you needed. It can be a sign that you care to change. The crucial thing is that you must keep following through with whatever started you on this new journey.

105Overall, your time in detention is strong evidence of increasing maturity over time.

106From this, I find that you were less mature at the time of the offence. If you had not changed you would have continued to behave aggressively and badly in detention. That would be evidence that you continue to be the same type of person you were when you killed Mr. Jung. In other words, the fact that you have changed, and that your behaviour has improved, shows that you have matured over time. This room for you to become more mature supports the presumption of diminished moral blameworthiness.

The s. 34 Assessment

107In my view, this s. 34 assessment is key to my decision. A s. 34 assessment is a court ordered medical, psychological, or psychiatric report to help decide whether to give an adult sentence. This report was done by health professionals at the Center for Addiction and Mental Health ("CAMH"), a well-regarded mental health institution in our city. I have read the detailed 63-page report closely. I also had a chance to listen to Dr. Vinik's evidence in court. She was a good witness. I accept her testimony. I disagree with the Crown's submission that she shows partiality.

108Dr. Vinik is also a good expert. But the s. 34 report also involved other experts. This included Dr. Lisa Ramshaw, a psychiatrist at CAMH. Also, there was Dr. Dadgostari from the RMYC who participated. As well, the assessment was well sourced from information from others like Ms. Sukh, your probation officer and the vice principal of RMYC. Many documents about you were also reviewed by the experts. Finally, a significant amount of psychological and other testing was done. In short, it is a good report. A lot of weight should be placed on it.

109Before getting to the details, I have some preliminary findings about it. The Crown submitted that caution must be taken about the report. Much of it depends on what you told them. I recognize the motive you might have to paint yourself in a certain way to gain benefit in this sentencing. I am wary of that. There are also some inaccuracies in what you report and what the records show, though some of these inaccuracies could be just because of bad memory. But not all the information comes from you. Some of it comes from neutral professionals like probation officers and social workers. Others, like your guardian, N.C., obviously are very supportive of you, but she has not been blind to your faults. She has been honest with the police when you were not living at home as required. I have no reason to believe that she has not been honest and as accurate as she can in the information she gave despite her bias.

110Also, the experts who prepared the s. 34 assessment are not strangers to people who might lie to them. Knowing that, they conclude that your self-reported data accurately reflects your perception of your own functioning and this is consistent with their clinical impressions of you as being "genuine and forthcoming with information during the current assessment."

111I further appreciate that you might present differently to others, especially when you are in the community – Dr. Vinik acknowledged this in her evidence. At the end of the day, I do not find this undercuts the weight of the report.

112It is important to note that this is your second s. 34 assessment. You had one done in 2020 for the Youth Court Justice Scully who was sentencing you at the time. Caution must be the approach to that assessment for reasons Dr. Vinik talked about. You were not well engaged in the assessment. The cognitive assessment likely underestimated your abilities due to your low effort. As well, limited access to early school records meant that it was not possible to determine a learning related diagnosis. However, the assessor in that report noted that "the results speak to concerns that a learning disability or intellectual disability diagnosis may be relevant" for you. I find that the 2020 assessment is consistent with the 2025 s. 34 assessment. Obviously, the 2020 assessment was closer in time to your offences.

113The 2020 assessment is important for another reason. In your 2025 assessment, your responses are more relevant, elaborate, and accurate with other sources. This evolution shows gained insight and maturity since 2020.

114Let me set out some of the details of this recent s. 34 assessment to better explain my decision.

Cognitive and Academic Testing

115This tested your cognitive and reasoning abilities. On one test, the Wechsler Adult Intelligence Scale test, you were well below the average 16-year-old; 75 to 95% below. Your verbal comprehension and reasoning score was at the lowest end of the low average. This would affect your academic performance and social interaction. Regarding non-verbal/perceptual reasoning, the results were in the extremely low range, below 99% of 16-year-olds on average. You struggle. This impacts your ability to process information, recognize patterns, and apply reasoning skills in academic and real-world settings. Regarding cognitive processes that support reasoning, your working memory was 99% below 16-year-olds on average. Same with the processing speed which was extremely low. The s. 34 report states:

I.T.'s cognitive profile suggests difficulties with reasoning, problem-solving, and information processing, which are likely to impact his academic performance and daily functioning. Although his low scores were evident in the 2020 assessment, academic and adaptive demands have increased with age, and because his rate of progress has not kept pace with his peers, the gap between his current abilities and age-based expectations has continued to widen, resulting in lower scores.

116Regarding academic testing, oral language, understanding words, comprehending stories, and expressing self, the score was low. Reading was better, low to average but with struggles. Math was below average.

117In her evidence, Dr. Vinik testified that at the time of the offences I am sentencing you on, your intellectual functioning would not have been greater than a 10- to 12-year-old.

Adaptive Functioning

118This means conceptual, social, and practical skills that people need to know to function in daily life. Information from youth service officers at RMYC shows that your overall function was in the very low range, the 2nd percentile.

119Dr. Dadgostari indicated concerns about your cognitive abilities and level of adaptive functioning as you "process information and expresses (sic) [yourself] at a lower level and struggles to communicate and make sense of things."

120N.C. confirmed that you were "slower to learn daily living skills compared to others your age." You had difficulty navigating the community and would get lost. You did not understand more complicated language and functioned like a younger adolescent.

121The s. 34 assessment concludes "evident from the reports of professionals working closely with him as well as his caregiver in the community that there are significant and persistent adaptive functioning deficits for his age."

Psychoeducational Summary and Conclusions

122The s. 34 assessment concludes on this issue:

Based on both current and previous testing results, [I.T.] presents with cognitive abilities that are significantly below the level expected for his age. His current academic and adaptive functioning scores also suggest significant delays in daily living and functional academic skills needed for independent living. Although we have limited access to information regarding his early development, [I.T.]'s own recollections suggest that he struggled significantly with acquisition of early academic skills and was even held back a year in school. Therefore, based on the available information, [I.T.] meets criteria for a diagnosis of Intellectual Disability in the Mild Range.

Mental Health

123In the 2020 s. 34 assessment, significant trauma was noted in your past including abandonment by your mother. However, no mental health diagnosis was given. You committed your offences while intoxicated but no substance abuse diagnosis was made. As previously stated, significant cognitive concerns existed. It concluded you were a moderate risk to reoffend.

124N.C. was a good source of information about you. In her experience, you have difficulties coping with trauma related issues. You were impulsive, moody, and would not open up about your past. She was worried about your substance abuse and your troubles with the law. You yourself have talked about these problems. In the 2020 s. 34 assessment, N.C. said you were disobedient and would not accept criticism. Yet, you could compromise, cooperate and be respectful, though you became aggressive when provoked by others.

125The questionnaire you filled out for the 2025 s. 34 assessment, showed you were in the borderline clinical range for anxiety, depression, thought issues, and rule breaking. The Personality Assessment Inventory was valid, though caution about accuracy needed to be exercised due to potential carelessness or a "cry for help" attitude. The responses suggested interpersonal difficulties like suspiciousness, unstable relationships fearing abandonment or rejection, drug/alcohol use, and conflict. You have a history of traumatic experiences. Difficulties in concentrating and decision making. You are in the clinical range for substance abuse, high range for aggression, but average for anti-social behaviour. You are open to change and to receiving services to help you.

126You have engaged in considerable anti-social behaviour. Including the 2020-gun charge which you attribute to being out with other youths. For some of the charges you were impaired. You have also admitted to stealing. You got a gun at 15. Started selling drugs early. That said, you have endorsed empathy for others and a respect for laws.

127Dr. Dadgostari sees these anti-social and criminal values but gives her opinion that "this likely comes from the way he had to survive." She records you have positive aspirations but can easily be drawn to crime.

128Dr. Vinik agreed that given your background, you have problems with trusting others. But she saw no evidence of callousness or lack of empathy in you.

Forensic Psychiatric Consultation

129After assessing you in person and reviewing the documentation and testing, Dr. Ramshaw came to an expert psychiatric opinion for the s. 34 assessment:

[I.T]'s history, presentation, and psychological testing, was in keeping with adolescent onset conduct disorder, substance use disorders (including but not limited to cannabis, opioids, alcohol, and stimulants) in remission in a controlled environment, and mild intellectual disability. He also has a history of complex traumas (significant abandonment, living on the streets, witnessing shootings, and identifying and aligning with a street-involved-group for survival), and meets criteria for other specified trauma-and stress related disorder with negative mood states, avoidance behaviours, and impairment in function, and a high level of fear in the community. There was no evident major mood disorder or psychotic disorder. Given his age and circumstances, the development of antisocial personality disorder could not be ruled out, however, he has demonstrated greater desistance over time from his significant antisocial values and behaviour, which was likely highly influenced by his social milieu within a pro-criminal neighbourhood; further he is neither callous nor unemotional, he has tended to be a follower, and he has done much better over time with structure, programs, and support. An anxiety disorder could also not be ruled out; he has described some social anxiety, which has likely been exacerbated by a shy temperament, intellectual limitations, and social circumstances.

…While his motivation remains unclear, the following have all likely played a role in his offending behaviour: possible displaced anger; disinhibition from substances; carrying a loaded firearm; a general heightened sense of fear with hypervigilance flowing from his lifestyle, rival groups, and complex trauma; and his cognitive and problem-solving limitations.

Over time, since his arrest in 2022, aggression, impulsivity, and substance use have all declined. [I.T.] has become more engaged in programs, counselling, and education, he has become closer with his guardian and interested in developing pro-social relationships, and he has reportedly become more communicative and mature.

Risk Assessment

130The Psychopathy Checklist-Screening Version revealed you have adolescent antisocial behavior, a history of impulsivity (improved), poor behavioural controls (improved) and deceitfulness (improved). According to the test, you have empathy and remorse, and though you view the shooting as an "accident", you take responsibility for it. The score did not "indicate significant psychopathy and is in keeping with adolescent onset conduct disorder (which was significantly influenced by his social milieu), his progress and improvements over time, and his increased interest in stability".

131The HCR20-VC, a professional violence risk instrument, showed that you historically have high risk factors especially at the time of the offences. But there were clinical changes in maturity, stability, and pro-social views and engagement over time. Given the improvement in these dynamic factors, your risk would be significantly lowered.

132The Level of Service/Case Management Inventory, a criminogenic risk/needs measure, revealed your risk at the highest end of the moderate/medium risk range which is associated with a recidivism rate of 43.8% and a violent recidivism rate of 8.9%.

133Other assessments of risk, note the meaningful changes you have made in detention such as schooling, programming and behaviour and attitudes which lower the risk, but release and living in the community bring unpredictable factors that could change things.

134In the conclusion, the s. 34 assessment states that while you were at high or very high risk of offending when you were in the community, given the significant improvements during your time in detention, you are likely at a moderate risk but at the highest end.

Adult vs. Youth Sentence

135The authors of the s. 34 assessment gave an opinion on this. To be absolutely clear, this is my decision to make, not theirs. While their views have some value, I must consider everything, the law, the facts of the offence, who you were and who you are today in making my decision. That stated, they say the following:

The most prominent and relevant clinical factor to take into consideration when considering an adult vs a youth sentence for [I.T.] is the fact that he has an intellectual disability and thus, both currently and at the time of the index offences, his functioning is/was at a cognitive level much below that of his chronological age. An intellectual delay has notable impacts on one's level of maturity, sophistication in reasoning and problem-solving, as well as effectiveness in decision-making. During adolescence, when [I.T.] committed the index offences, typical neurological development, and thus effective decision-making as well as self-regulation of emotions and behaviours, are still developing. In [I.T.]'s case, these skills were even further behind compared to normally developing 17-year-olds due to his intellectual delays.

Intellectual deficits also make [I.T.] much more vulnerable to the influence of others compared to normally-developing individuals his age, which further highlights the concerns of him spending a lengthy amount of time in an adult custodial facility surrounded by antisocial adults.

It is also important to take into consideration [I.T.]'s significant exposure to trauma and instability throughout his development, which are well documented and date back to his very early years. These adverse childhood experiences undoubtedly impacted [I.T.]'s social, emotional, and moral development. During his time in detention, [I.T.] has made meaningful gains and improvements, which demonstrates his ability to benefit from supports and services. Therefore, 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).

Final Clinical Summary

136Dr. Vinik concludes that you have the diagnosis of intellectual disability in the mild range, other specified trauma and stress related disorder, complex developmental trauma, and adolescent onset conduct disorder. Relevant to the issues I need to decide, are the following views of Dr. Vinik as she expanded on this diagnosis:

An individual with a cognitive delay is expected to have more difficulties managing in such difficult circumstances, may resort to ineffective coping strategies, and may engage in poor decision-making, which was certainly the case for [I.T.]. Many of [I.T.]'s decisions at that time appear to have been driven by his strong sense of abandonment, difficulties establishing trust with available systems of support, and a desperate attempt to survive on his own in such challenging circumstances.

Relevant to his social circle, [I.T.] was heavily entrenched within an antisocial group of individuals. It appears that he largely fell into that environment after he was abandoned by his mother as a young teen, was distrustful of the child protection system, and turned to the people in his neighbourhood he reportedly knew through his mother for care, support, and protection. It is important to note that [I.T.] was particularly vulnerable to negative influences and manipulation due to his intellectual disability; someone with his needs and vulnerabilities is unfortunately a prime target for such manipulation by antisocial individuals, and he reported that he was indeed threatened by these individuals and pressured to engage in antisocial activities. [I.T.] became heavily involved in substance abuse, criminal activities, and neighbourhood rivalries as part of his negative social circle. With time spent in this social circle and exposure to street violence (e.g., learning of or seeing people he knew hurt or killed), [I.T.] also began to feel loyalty to his area. Currently, [I.T.] expressed his determination to disengage from these individuals and loyalties. He appears to have some understanding of the challenges involved in achieving this goal and will certainly require extensive supports to safely disengage from his antisocial affiliations.

…It is important to understand the role trauma-related symptoms played in [I.T.]'s aggression, as he likely reacted very strongly when he felt threatened or triggered. In addition, in large part due to his intellectual delay, he lacked effective problem-solving and conflict resolution skills and tended to resort to aggression. Lastly, aggression was likely modeled and normalized in his peer group. It is very encouraging that with access to supports and services in detention, and with increased maturity, [I.T.] has made substantial improvement in his behaviour and has displayed no behavioural concerns in the last six months. He was described as a positive influence on other youth at the facility.

137The s. 34 assessment then makes a number of recommendations about treatment and interventions, including an Intensive Rehabilitative Custody and Supervision Order, which you agree to do and which Probation has found you eligible for. Dr. Vinik said you need extensive long-term supervision and oversight.

Parity

138I must pay proper attention to other similar cases. Parity in sentencing is important. The Crown has provided some cases. I have not ignored them. For sure, in other cases youths have received adult sentences for serious crimes of violence. However, no two cases are exactly the same. On the other hand, the cases I will outline next show that even for serious offences and repeat offenders, the doorway to an adult sentence was not opened on their facts. In other words, a youth sentence can still be the right sentence for a murder. (It is noteworthy that the cases referred below came before I.M. and did not require the Crown to rebut the presumption beyond a reasonable doubt).

139In R. v. J.D., 2022 ONSC 7282, the accused received a youth sentence. J.D. pleaded guilty to second degree murder of one victim and aggravated assault of another victim, both in a drive-by shooting. The presumption of diminished moral blameworthiness was not rebutted—J.D.'s upbringing as a Black youth in the Jane and Finch area, his father's addiction issues and absence, his family's criminal history, his physical abuse at the hands of his mother's partner, lack of supervision as a child, his learning disability and ADHD, PTSD, depression and anxiety, his having witnessed violence and crime as a child, and his history with severe substance abuse (cannabis, alcohol and opioids), all contributed to a finding of youth-level maturity at the time of the offences. Forestell J. found, based on J.D.'s s. 34 assessment and his personal history, that J.D. was vulnerable to the influence of others at the time of the offences, that his capacity for critical thinking and moral reasoning was not that of an adult, and that his actions were not indicative of sophisticated, independent or mature thinking.

140In R. v. T.F.D., 2019 ONSC 3389, the accused received a youth sentence. He pleaded guilty to second degree murder. After a night of drinking, cannabis and cocaine, T.F.D. shot a man once in the chest while attempting to rob him, and the man died. Ratushny J. characterized T.F.D. as an "impulsive, immature, and troubled adolescent" who "buried his lack of self-esteem" in an attention-seeking criminal lifestyle and substance use. T.F.D. 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.

141In R. v. T.J.T., 2018 ONSC 5280, the accused received a youth sentence. T.J.T. shot and killed the deceased by firing a handgun three times at close range. He was convicted by a jury of second-degree murder. Garson J. considered his circumstances as a Black/mixed young man with minimal supervision in his childhood, a history of poverty, and exposure to criminality from a young age including his brothers being shot and peers being killed. Garson J. found that T.J.T. "displayed characteristics of a youth who was too immature to recognize the extent of the harm and horror he caused by his actions", and that "he displayed immaturity, vulnerability, short-sightedness and a lack of sophistication or appreciation for the consequences of his actions." His maturity was also impacted by the emotional trauma caused by the deaths, killings, and shootings of family members and friends.

142In R. v. M.W., 2017 ONCA 22, 134 O.R. (3d) 1, leave to appeal refused, two 16-year-old youths were convicted of first-degree murder for their roles in the execution-style killing of another youth. Although neither directly caused the death, they were significantly involved in planning and facilitating the crime, as well as in post-offence conduct. Both youths came from disadvantaged backgrounds and were influenced by pro-criminal peers. They had prior criminal records and emotional disturbances but showed rehabilitative potential while in custody. Epstein J.A. overturned the adult sentence and imposed a youth sentence of 10 years with IRCS orders. The Crown failed to rebut the presumption for either appellant. Both youths demonstrated immaturity, impulsiveness, and susceptibility to negative peer influences at the time of the offence. Their actions did not reflect the moral sophistication or judgment of adults.

143It is worth pointing out that in that case, one youth, T.F., had a bad criminal background (at paras. 118-130). A terrible school record. A terrible youth record. He ignored society's norms. But the s. 34 assessment was important, and it showed that his peers had a negative influence on him and he made poor choices. In addition, like you, his time in jail was not perfect or linear. But also, like you, over time T.F. showed maturity, became motivated to learn, was amenable to treatment and did well with support and structure. This history showed increased maturity in detention and lesser maturity at the time of the offence.

144Finally, I.M. itself is helpful to look at. He was convicted of first-degree murder. When I.M. was 17 years and 5 months old, he and several others confronted the victim, another 17‑year‑old, in an alley outside his home, seeking to rob him of firearms. The victim sustained multiple knife wounds in the altercation and died. Although I.M. was the youngest in the group, he played an active role in planning and executing the robbery. A message he sent to one adult co‑conspirator on the day of the murder indicated that he viewed the crime as a steppingstone to greater criminal activity. I.M. also told a schoolmate days after the offence that he had stabbed the victim several times and showed him a bag containing bloodied clothing. The adult sentence imposed by the sentencing judge was set aside and a youth sentence was imposed by the Supreme Court. The Crown had not shown beyond a reasonable doubt that the presumption of diminished responsibility had been rebutted. I.M. had a difficult upbringing and mental health problems affecting his developmental age showing that his level of maturity was not that of an adult at the time of the offence. At the time of the offence, I.M. saw his own role in the robbery as an opportunity to prove his worth to adult peers as a criminal, and four days after the event, he imprudently recounted his wrongful conduct to a schoolmate. These facts reflected signs of incautious bravado, lack of adult‑like reasoning and immature susceptibility to untoward adult influence at the time of the offence. On re‑sentencing, these considerations were relevant to the proof of I.M.'s developmental age, and constituted evidence that he did not have the maturity or capacity for the moral judgment of an adult at the time of the offence.

Conclusion

145The Crown must show that the young person's developmental age, contrary to their chronological age, demonstrates the maturity and capacity for independent and moral judgment of an adult. To rebut the presumption the Crown must satisfy the court that, at the time of the offence, 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.

146In simple language, what is this all about?

147To start, the YCJA is an important law that is built on some core values in our society. Children are different from adults. We all know that. Therefore, we treat them differently. Even when it comes to punishment for crimes. Even for the most serious of crimes like murder.

148This law that our elected government passed recognizes a value that is so fundamental, it has constitutional protection. So, while reasonable people can disagree with the law or a sentence that is given in any particular case under this law, it is a law that we must respect. And I have no doubt that people do.

149Our highest court, with the last word on what laws mean and how they are applied, has found that the Crown has the burden to prove this presumption does not apply, beyond a reasonable doubt. In proving that, the seriousness and gravity of the crimes do not come into play. Because, logically, they do not shed any light on personal characteristics of the offender.

150Proof beyond a reasonable doubt. We have all heard of it. It is the highest form of proof in our court system. It does not mean proof to an absolute certainty because very few things in life can be proven to that degree. But it does mean I must be sure the Crown has proven this. Proof beyond a reasonable doubt lies closer to absolute certainty than proof on a balance of probabilities.

151This standard of proof is so important that it really is a cornerstone for our cherished freedoms. But it has consequences. It may mean unhappiness or upset with a judicial decision in a specific case because of what the evidence in that case has shown or not shown. It may even mean some will feel that the administration of justice has let them down. But if we step back. Look at the whole picture. That picture may become clearer. More acceptable. As we can see that this is how the administration of justice was meant to work.

152When I do that in this case, when I look at all the evidence carefully, the whole picture, I find that at the time of the offences, I.T. may have had the developmental age of an adult, but I am not sure of this. Thus, I must find that the Crown has not proven this beyond a reasonable doubt.

153I agree with the Crown that the s. 34 assessment must not overwhelm the analysis. Everything must be looked at. And I have.

154Some things show you had independence and the maturity of an adult in and around that time. Your life had features of independence, but it was also heavily influenced by negative behavior, beliefs, and talk by others. Much like a child would be. Also, the traumas in your life made you vulnerable to that. It puts into context some of your poor behaviour, conduct and functioning before and during the offences.

155The crimes themselves also reveal some calculation and adult thinking. But there are parts of it that show a lesser form of judgment, some bravado, impulsivity and poor youthful thinking. Your behaviour after the crime supports the Crown, but parts of it are also consistent with youthful panic. The more sophisticated things you did, could not have been done by you without the help of others who were more sophisticated and resourceful.

156Your behaviour in pre-trial custody supports the fact you were less mature at the time of the offences. Even when first arrested, your behaviour and aggression was not good. But more recently, it has gotten much better. I can only attribute this - like others have - to increased maturity.

157Finally, there is the s. 34 assessment and the expert opinions. It wraps all the factors together and makes sense of it. I find at the time of the offences, given your disabilities, vulnerabilities, deficits, and background, you were functioning at a developmental age much younger than your actual age.

158In conclusion, the Crown has not satisfied me beyond a reasonable doubt on the first part of the test. Thus, I do not have to analyze the second part.

159So, you will receive a youth and not an adult sentence.

D. THE YOUTH SENTENCE

160I do not need to go on and on about your sentence. That is because your position on sentence is the maximum sentence permitted under the YCJA on top of the deadtime you have done.

161You have been in jail since your arrest on January 28, 2022. You have already done an equivalent sentence of 5 years 8 ¼ months. That is your pretrial custody calculated on a 1.5 to 1 basis. That is a significant amount of time and of punishment. So that it is clear to everyone, the defence is really asking for a total sentence of 12 years 8 ¼ months for these crimes.

162Sentencing is a highly individualized process that is dependent on the unique facts of the offence and the offender, but it is also guided by a number of applicable legal principles.

163Section 38(3)(d) of the YCJA requires a sentencing judge to "take into account" any presentence custody served by a young person as a result of an offence. The Ontario Court of Appeal has ruled that while s. 38(3)(d) means presentence custody may 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: R. v. M.B., 2016 ONCA 760, 342 C.C.C. (3d) 34, at para. 11.

164I exercise my discretion not to credit you for any of the significant pretrial custody you have done. Just as your lawyer submitted.

165Section 3 of the YCJA carefully sets out the guiding principles that must be relied on when interpreting provisions in the legislation.

166These principles in section 3 inform the purposes of sentencing youths that are detailed in section 38 of the YCJA. I have considered them all.

167There are mitigating factors. I have already gone through them in my decision. I won't repeat them.

168There are many aggravating factors that center on the facts of the offence, your responsibility in it, and the harm that you have caused.

169Here I am allowed to and must take into account the seriousness of the offences. You were armed with an illegal gun in public places. Just a few days before the murder, you were using it in a residential neighborhood, recklessly firing it. This is just a horrific scenario. The public demands such actions be condemned.

170I hardly need to say anything about how morally awful the murder was. How terrible a crime this was. How extreme and callous. Repugnant to any decent human being. Also, you had a prior gun possession record and were on probation and subject to weapons prohibition orders. But still not deterred from carrying and using a gun. These obvious aggravating factors are what makes the decision I made on an adult vs. youth sentence so hard.

171Even considering your need for rehabilitation, the sentencing principles of accountability, specific deterrence and denunciation, fully support the maximum sentence.

172I need to say little more about the sentence.

173But I will say more about the harm you have caused I.T. I could not take the voices of the victims into account when I decided whether to impose an adult sentence. But I want to be sure they know their voices were heard.

174The long reach and impact of your actions were vividly on display in the courtroom at the sentencing hearing. Mr. Jung's daughter, Vanessa. Her partner, Phillip. All the good and honest folk who provided victim impact statements. Made all the pain you have caused very real.

175Mr. Jung was not an anonymous victim. He might have been a stranger to you. But he was a cherished father. A funny, kind, and generous family member. A steadfast friend. Even to those who only knew him through his work.

176It is but human nature to try and forget about horrid memories. To avoid uncomfortable feelings caused by them. You might wish to forget about Mr. Jung. As I said, there is much denial in your claim not to remember. Maybe that is a good thing. Good because that may be shows you do have some empathy. Some humanity. To feel sorrow like others have.

177If I could, I would make a binding order that you not forget this man. And the pain you have caused. His loved ones never will.

178From the victims, you learned something about the man you murdered. A hardworking man who came from Poland. A taxi driver for decades. Who treated his cab like a second home. A man who was married to Vanessa's mother, who died so young, at 38. Leaving Mr. Jung with a five-year-old daughter to raise as a single parent. A devoted and engaged father over the years to her. Who exposed Vanessa to the world. She told you of her father's experiences in Europe. His dreams for the future. You robbed him of any chance to make those dreams real.

179Vanessa told you about how good her father was with people. She described to you his last day. About a conversation he had with her, where her father talked about his life and his love for this world. Showing his generosity, his forgiving nature, his pride in his daughter.

180For Vanessa, I have little doubt when she was a five-year-old having to say goodbye to her mother, her father was safety. A refuge. And continued to be that right up to the last breath he took. You have taken from her that sanctuary. For such a crime, no worldly punishment can suffice.

181So, to honor Christopher Jung, do not forget him. Let his memory be a beacon for which you can guide your rehabilitation during the long years you have yet to face in prison.

182For the offence of second-degree murder, I sentence you seven years comprised of a committal to custody, to be served continuously, for a period of four years from the date of committal, followed by a placement under conditional supervision to be served in the community in accordance with s. 105 for the remainder of your sentence. This sentence is subject to an Intensive Rehabilitative Custody and Supervision order (IRCS). The YCJA makes available an IRCS order for second-degree murder (per s. 42(r)(iii)). The intent of the IRCS program is to provide qualifying young offenders with treatment to ensure their effective rehabilitation and reintegration into society. This is the right order to make for you.

183For the firearm offences related to the October 3, 2021, incident, I sentence you to concurrent sentences of one year.

184In addition, there will be the following ancillary orders:

• DNA order on each offence.
• A weapons prohibition order for life pursuant to subsection 51(1) of the YCJA; and
• A non-communication order with Vanessa Jung and Philip Sportel under s. 743.21.

185A final comment. I fear I.T. that you may hang with bad men in jail. Given who you are, I fear they will have a bad influence on you. I fear you will not continue helping yourself with the support that is available. I fear your progress will stop. I truly fear that when your youth sentence is fully done, you may yet pose some danger to the community.

186You don't have to live a criminal lifestyle. You can be someone your father, mother, and N.C. can be proud of. You can be someone other troubled youths can look up to. The choice is yours.

187I just hope you prove my fears wrong I.T.

Justice S. Nakatsuru

Released: October 17, 2025

Footnote

1R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18.