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SENTENCING - Homicide - Young persons - Adult sentence - Alternate measures programs

Friday, July 16, 2021 @ 5:37 AM  

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Appeal by the accused from an adult sentence of life imprisonment with no parole eligibility for a period of seven years imposed for second degree murder, attempted murder, aggravated assault, and reckless discharge of a firearm. The appellant, then 17, attended a house party in 2012 where he was not welcome. He brought a loaded firearm. When he was ordered to leave by someone with a gun, the appellant pulled his gun and began shooting. A mass shooting resulted in which two people were killed and more than 20 were injured. At the time of the gunfight, the appellant was on bail on charges of robbery and failure to appear. The appellant did not fire the shots that resulted in the deaths but was convicted of murder because he initiated the gunfire and knew that it would likely cause death. The appellant argued the sentencing judge misunderstood the Intensive Rehabilitative Custody and Supervision (IRCS) program and, as a result, concluded that it would not be effective in his circumstances. The appellant also argued that the sentencing judge failed to consider the collateral immigration consequences of an adult sentence. The appellant was almost 22 years old at time of sentencing. The sentencing judge was concerned that the appellant had not acknowledged his central role in the shootings, coupled with the fact that the appellant remained at medium risk of re-offending.

HELD: Appeal dismissed. The appellant was 21 years old when he was sentenced and, pursuant to s. 89(1) of the YCJA, was required to serve his sentence in an adult facility. The sentencing judge was concerned with the implications flowing from the appellant serving his sentence in an adult facility, regardless of whether that facility was provincial or federal. The sentencing judge’s concerns about the suitability of the IRCS program for the appellant were based on more than simply where the sentence would be served and the risk of transfer to a federal facility. He was also concerned that the appellant had not acknowledged responsibility for the offences, a key consideration in the accountability analysis. Even if the sentencing judge erred concerning the value of an IRCS order, there was no basis for this court to intervene. The appellant’s eligibility for an IRCS order was simply one consideration relevant to the question of accountability. The sentencing judge properly recognized that the central question he had to determine was whether a youth sentence would have sufficient length to hold the appellant accountable for his offending behaviour, and he found that it would not. This finding was open to the judge and entitled to deference. The alleged error concerning the IRCS program did not have an impact on the sentencing judge’s conclusion that the Crown had rebutted the presumption of reduced moral culpability. The sentencing judge’s characterization of the appellant’s actions as conscious and deliberate was amply supported on the record. He considered the age, maturity, and the conduct of the appellant both before and after the offence, his improvement in custody as well as the medium risk of re-offending that he posed and concluded that the presumption of diminished moral blameworthiness had been rebutted. This conclusion revealed no error and was entitled to deference. The sentencing judge should have addressed the immigration consequences that would result from the imposition of an adult sentence, but his failure to do so was harmless in the circumstances. The collateral immigration consequences could not have reduced the sentence to a youth sentence. Sentence: Life imprisonment; seven-year parole ineligibility.

R. v. Owusu, [2021] O.J. No. 3233, Ontario Court of Appeal, J.M. Simmons, E.E. Gillese and G. Huscroft JJ.A., June 14, 2021. Digest No. TLD-July122021010