WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE
    ACT

AND IS
    SUBJECT TO:

110. (1)
Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111. (1)
Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138. (1)
Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(
a
)       is guilty of an indictable offence and
    liable to imprisonment for a term not exceeding two years; or

(
b
)       is guilty of an offence punishable on
    summary conviction.

CITATION:
R. v. K.C., 2011
          ONCA 257

Date:  20110404

DOCKET: C50762

COURT OF APPEAL FOR ONTARIO

O'Connor A.C.J.O., Simmons and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

K.C.

Respondent

Holly Loubert, for the appellant

Raymond Boggs, for the respondent

Heard: October 26, 2010

On appeal from sentence imposed by Justice Graham Wakefield of
          the Ontario Court of Justice dated June 10, 2009.

Simmons J.A.:

I.         OVERVIEW

[1]

This appeal raises an issue concerning the proper test
    to be used when the Crown applies under s. 42(9) of the
Youth Criminal Justice Act
, S.C., 2002, c.1, for a serious violent
    offence designation in relation to an offence committed by a young person found
    guilty as a party
[1]
.

[2]

The respondent pleaded guilty to eight offences arising
    out of his involvement as a party to two armed robberies. In relation to the
    first armed robbery, he was found guilty of robbery with a firearm, unlawful
    confinement, possession of a prohibited weapon and possession of stolen
    property valued at over $5000. In relation to the second armed robbery, he was
    found guilty of robbery with a firearm, unlawful confinement, uttering threats
    and failing to stop for police.

[3]

The sentencing judge dismissed the Crowns application
    to have the offences designated as serious violent offences. He said that he
    was not prepared to exercise his discretion to do so, given the party nature
    [of the respondents involvement and] given the greater removal of nexus
    between [the respondents] choices and actions and the serious psychological
    harm the sentencing judge inferred was suffered by the victims.

[4]

Ultimately, the sentencing judge imposed a global
    sentence of three months deferred custody and supervision, in addition to
    three months credit for 76 days of pre-sentence custody, together with 30
    months probation requiring 120 hours of community service.

[5]

On appeal, the Crown submits that the sentencing judge
    failed to apply the proper legal test for determining whether the respondents
    offences should be designated as SVOs, that the sentencing judges SVO ruling
    is unreasonable, and that, in any event, the global sentence imposed is unfit.

[6]

For the reasons that follow, I would allow the appeal,
    make an SVO designation in relation to the second set of offences, set aside
    the global sentence imposed by the sentencing judge and remit the matter to the
    sentencing judge for sentencing.

II.        BACKGROUND

i
)         The Offences

[7]

The first set of offences occurred on January 19, 2007;
    the second set on January 27, 2007. The sentencing proceeded on the basis of an
    agreed statement of facts. The gist of the agreed statement of facts is as
    follows.

[8]

On January 19, 2007, at approximately 3 p.m., the
    accused and four to five other males entered a clothing store in Ajax, Ontario.
    After looking around the store for a few minutes, one of the males (not the
    respondent) pointed a sawed-off shotgun at the left temple of one of the two
    female employees who were working that day. Three of the males took the two
    victims to the basement of the store where they bound the victims with duct
    tape, blindfolded them and threatened them. The males filled garbage bags with
    clothing and then left the store, taking the computer that holds the video surveillance
    footage for the store with them. They fled the scene in a car that police later
    determined had been stolen from the Ajax GO station parking lot.

[9]

One of the respondents fingerprints was discovered on
    a garbage bag left behind at the clothing store. Following his arrest in
    relation to the January 27, 2007 incident, the respondent gave an
inculpatory
statement to the police in which he claimed
    that he acted as a lookout during the January 19, 2007 robbery. One of the
    victims of that robbery identified a different person in a photo line-up as
    being the person with the sawed-off shotgun.

[10]

On January 27, 2007, two male victims, O.M. and K.D.,
    traveled to a parking lot near the Pickering Town Centre to meet two young
    women with whom one of the male victims had been chatting online. The meeting
    turned out to be a set-up. Soon after the victims arrived at their destination,
    they were approached by a group of males that included the respondent. One of
    the males (not the respondent) pointed a sawed-off shotgun at the victims and
    demanded money. The victims were then forced out of their car at gunpoint and
    pushed into the back seat of their vehicle. The males took the victims
    wallets, identification and money.

[11]

The male who was armed with the sawed-off shotgun then
    got into the back seat of the car with the victims. He kept the gun pointed at
    them and threatened to shoot them. Two other males, both armed with knives, got
    into the front seat.  One of the victims,
    O.M., offered to withdraw money from his bank account in an effort to satisfy
    the males. The group drove to a bank machine, where one of the males attempted
    to withdraw money from O.M.s bank account without success. O.M. was instructed
    to get money from a relative and was told that if the males did not get their
    money, K.D. would be killed. Once O.M. was away from the suspects, police were
    notified and officers dispatched.

[12]

Meanwhile, the males returned to the parking lot near
    the Pickering Town Centre with K.D. Some of the males got into another vehicle
    at which point the respondent took over as the driver of the victims car. K.D.
    made numerous calls in an attempt to get money for the males. The male with the
    shotgun remained in the back seat with the victim.

[13]

After being told by the male with the shotgun that he
    had to see his childs mother, the respondent drove the victims car to Highway
    401 and then onto the Don Valley Parkway. Police located the car and began a
    pursuit that eventually involved three different police forces. At one point
    during the pursuit, the police attempted a rolling block stop. However, the
    respondent struck two police cruisers, causing minor damage, and continued to
    flee. A lone OPP officer eventually stopped the vehicle.

[14]

The respondent got out of the car and attempted to
    escape on foot, but he was caught by the police officer. The other males were
    never apprehended. With the assistance of K.D., police found the sawed-off
    shotgun, which was thrown from the car window during the pursuit. The shotgun
    was loaded and operable when it was recovered. On searching the respondent
    incident to his arrest, the police found a yellow shotgun shell.

ii)        The Trial Crowns Position on Sentence

[15]

Following the respondents guilty plea and the findings
    of guilt, the trial Crown indicated she would be asking that the offences be
    designated as serious violent offences and that a three-year custodial sentence
    be imposed  the maximum sentence allowable under the
YCJA
for these offences.

[16]

None of the victims of the two sets of offences
    suffered physical injuries. Accordingly, the trial Crown relied on serious
    psychological harm as the basis for the SVO designations.

[17]

Further, because none of the victims filed victim
    impact statements, the trial Crown relied on the circumstances of the offences
    as creating an irresistible inference of serious psychological harm.

[18]

Finally, the trial Crown relied on statements made by
    the respondent during
a
s. 34
YCJA
assessment indicating that he appreciated that the victims
    must have been traumatized as supporting the availability of an inference of
    serious bodily harm.

III. THE SVO PROVISIONS OF THE
YCJA
AND THE SIGNIFICANCE OF AN SVO DESIGNATION

i)

The SVO Provisions of the
YCJA

[19]

Section 2(1) of the
YCJA
defines serious violent offence as meaning an offence in the commission of
    which a young person causes or attempts to cause serious bodily harm.

[20]

Section 42(9) of the
YCJA
sets out the circumstances in which a sentencing judge may
    designate an offence as a serious violent offence:

42(9)
On
application of the Attorney General after a young person is found guilty of an
    offence, and after giving both parties an opportunity to be heard, the youth
    justice court may make a judicial determination that the offence is a serious
    violent offence and endorse the information or indictment accordingly.

[21]

The term serious bodily harm is not defined in the
YCJA
. However, under s. 2(2) of the
YCJA
, [u]
nless
otherwise provided, words and expressions used in [the
YCJA
] have the same meaning as in the
Criminal Code
.

[22]

In
R. v. C.D.; R.
    v. C.D.K.,
[2005] 3 S.C.R. 668,
Bastarache
J.
    observed that the
Criminal Code
meaning of the term serious bodily harm was determined in
R. v.
McCraw
,
    [1991] 3 S.C.R. 72. He said, at
para
. 20, that he saw
    no reason why that definition should not also be used for purposes of the
    definition of serious violent offence in the
YCJA
:

In
R. v.
McCraw
, [citation omitted] Cory
    J., writing for a unanimous Court, relied on this definition of bodily harm,
    as well as the dictionary definition of serious, to interpret the meaning of
    serious bodily harm for purposes of s. 264.1(1)(a) of the
Criminal Code
as it was worded before
    February 15, 1995. Specifically, Cory J. held that serious bodily harm
    is any hurt or injury, whether physical or psychological, that interferes in a
    substantial way with the physical or psychological integrity, health or
    well-being of the complainant (p. 81). I see no reason why this definition of
    serious bodily harm should not also be used for purposes of the
YCJA
, and, in particular, for
    purposes of the definition of serious violent offence that is found in s.
    2(1) of the Act.

[23]

Similarly, it appears to be generally accepted that the
    designation applies to parties and not just to principals. For example, in
R. v. T.

(V.J.
)
(
2007),
    218 C.C.C. (3d) 563 (Man. C.A.), Steel J.A. said, at
para
.
    26, the designation may be made against either a principal or a party. She
    went on to hold, [
i
]t is necessary to consider the
    different degrees of complicity of each party and assess their respective roles
    in the offence. Bloomenfeld J. reached similar conclusions in
R. v. M.E
., 2008 ONCJ 99.

ii)

The Significance of an SVO
    Designation

[24]

An SVO designation has two important consequences for a
    young person found guilty of an offence. First, it means that the sentencing
    option of a deferred custody and supervision order, the
YCJA
counterpart to a conditional sentence, is not available.

[25]

Section 42(2
)(
p) of the
YCJA
provides authority to make a
    deferred custody and supervision order of up to six months duration. However,
    s. 42(5) stipulates that the court may make a deferred custody and supervision
    order where the young person is found guilty of an offence that is not a
    serious violent offence  effectively precluding a deferred custody order where
    a young person is found guilty of an offence that is a serious violent offence.

[26]

Accordingly, although an SVO designation does not make
    an actual custodial sentence mandatory, in practical terms, having regard to
    the inherent seriousness of an SVO, it means that, absent exceptional
    circumstances, an actual custodial sentence will be the only realistic
    sentencing option.

[27]

The second important consequence of an SVO designation
    is that it makes available the sentencing option of an intensive rehabilitative
    custody and supervision order under s. 42(2
)(
r) of
    the
YCJA
where certain conditions are
    met, including that the young person has been previously found guilty at least
    twice of a serious violent offence and where an adult would be liable to
    imprisonment for more than two years for the offence attracting a third SVO
    designation: s. 42(7)
[2]
.
    An intensive rehabilitative custody and supervision order serves as an
    alternative to standard custody and supervision orders where a young person has
    mental health problems. The order places a young person in a secure facility
    for treatment, followed by a high level of supervision and support in the
    community: see Nicholas
Bala
&
Sanjeev

Anand
,
Youth Criminal Justice Law,
2d (ed.)
,
(Toronto: Irwin, 2009),

page 600.
[3]

IV.      THE
    SENTENCING JUDGE'S REASONS

i)

The SVO Ruling

[28]

The sentencing judge accepted the trial Crowns
    submission that he should draw an inference of serious psychological harm from
    the circumstances. However, he rejected the Crowns argument that he should
    rely on comments made by the respondent during interviews for the s. 34
    assessment, indicating he appreciated that the victims must have been
    traumatized, as supporting the availability of an inference of serious
    psychological harm. In the sentencing judges view, those comments indicated
    only that the respondent realized the degree of trauma suffered by the victims
    at the time he was being interviewed. Moreover, the fact that the respondent
    may not have appreciated the potential consequences to the victims at the time
    the offences were committed was a factor to be considered in determining
    whether to make an SVO designation.

[29]

As for the significance of the respondents liability
    for the offences as a party, the sentencing judge noted the comments of
    Bloomenfeld J. in
R. v. M.E.
, to the
    effect that legal liability as a party to an offence in which serious bodily
    harm is caused or attempted does not provide an automatic or irresistible
    foundation for a serious violent offence determination:
para
.
    11. Rather, Bloomenfeld J. concluded that the inquiry extends beyond the legal
    elements of the offence committed to the precise nature of the young persons
    role in causing or attempting to cause serious bodily harm in perpetrating the
    offence:
para
. 12.

[30]

Further, Bloomenfeld J. stated, the definition of serious
    violent offence in s. 2(1) of the
YCJA
explicitly creates an additional condition, namely that the young person not
    only commit the offence but that, in doing so, he or she cause or attempt to
    cause serious bodily harm:
para
. 13.  Moreover, [w]here a young person is a party
    to an offence and there is an insufficient nexus between his or her actions and
    the consequent or an attempt to cause serious bodily harm, the definition of
    serious violent offence has not been met and a judicial determination of
    serious violent offence should not be made:
para
.
    19.

[31]

In this case, the sentencing judge
appears to have
adopted
Bloomenfelds
J.s approach, and concluded that there was
    an insufficient nexus between the respondents conduct and the serious
    psychological harm the sentencing judge inferred had been caused to warrant an
    SVO designation. In his words, he was not prepared to exercise [his]
    discretion to make the designation:

In the circumstances
    of the case at bar, notwithstanding s. 21 of the
Criminal Code
, and looking at specifically the analysis of the
    nexus between the actions and the consequent or an attempt to cause serious
    bodily harm in the situation [the respondent] was in, and the agreed statement
    of facts,
I am not prepared to exercise
    my discretion to categorize this as a serious violent offence given the party
    nature, given the greater removal of nexus between [the respondents] choices
    and actions, and the actual inferred psychological harm which I have no
    difficulty in inferring in the facts of this case
. [Emphasis added.]

ii)        The Sentence Imposed

[32]

In imposing sentence, the sentencing judge reviewed the
    various principles of sentencing set out in the
YCJA
, the circumstances of the offence and the circumstances of the
    offender.

[33]

Concerning the offence, the sentencing judge noted that
    the statement of facts cumulatively set out a cascade of aggravating factors
    to amount to the worst case and that while the respondent was a party to the
    first incident, in the second incident, he took a direct role assuming control
    of the car and could have terminated the offence at any time by bringing the
    car to a safe stop. Further, he found that the harm done to the victims was
    both intentional and foreseeable, if perhaps not as much for this defendant in the
    first incident, clearly so in the second, where he knew of what his colleagues
    were capable.

[34]

Concerning the offender, the sentencing judge found
    that the pre-sentence report and the s. 34 assessment demonstrated that the
    respondent is not the worst offender. He referred in particular to the turmoil
    and disruption experienced by the respondent upon his parents separation and
    to the challenges the respondent faces in a regular school environment. The
    sentencing judge also noted the respondents growing insight into the impact of
    the offences on the victims; his acknowledgement of responsibility and shame
    for his involvement in these offences; the consensus concerning the
    respondents relatively low risk to re-offend and the recommendation in the s.
    34 assessment indicating that a custodial disposition could be detrimental to
    the respondent. In addition, the sentencing judge referred to the respondents
    efforts to make reparations to the community by advocating against violence and
    to the respondents pre-sentence detention. He noted that on the usual 1.5 to 1
    basis, the respondent would receive 114 days (or just under four months) credit
    for 76 days of pre-sentence secure custody.

[35]

The sentencing judge went on to say that, had the
    sentencing occurred within six months of the offence, he would have had no
    hesitation in imposing a two-year secure custody sentence less credit for
    pre-sentence custody. However, because of the lack of timely intervention (the
    reasons for sentence were delivered on June 10, 2009, about 2 ½ years after the
    offences took place and about 9 months after the respondent pleaded guilty on
    September 17, 2008), he concluded that such a sentence would be inappropriate.
    He said:

However, the
effluxion
of time can ameliorate the severity of sentence
    if that time is being used positively, as it has been in this matter, and as a
    sentencing factor where we have lost that opportunity to reinforce the link
    between the offending behaviour and its consequences when we lost timely
    intervention.

...

I am brought to the
    conclusion that a meaningful consequence and fair and proportionate
    accountability for who this defendant is today and the rehabilitative progress
    he has demonstrated over the past two years, having experienced secure custody
    during the pre-sentence custody, having been subjected to and successfully
    complying with bail restrictions amounting to house arrest, is to impose the
    maximum deferred custody permitted by the Act.

...

As such, there will
    be noted 76 days of pre-sentence custody concurrent on each charge, with a
    further three months deferred custody concurrent on each charge...

V.        THE
    POSITIONS OF THE PARTIES ON APPEAL

i
)         The Crown

[36]

In oral argument, the Crown acknowledged that its
    position has shifted concerning the proper test to be used when considering
    whether to make an SVO designation in relation to an offence committed by a
    person found guilty as a party.

[37]

Whereas, following the enactment of the
YCJA
, the Crown initially took the
    position that a finding of party liability in relation to an offence that
    resulted in serious bodily harm met the SVO threshold, the Crown now adopts the
    test set out in
R. v. M.E.
Accordingly, a proper assessment of whether to make an SVO designation requires
    considering the nature of the particular offenders participation to assess
    whether there is a sufficient nexus between the offenders role and the
    consequent or attempted serious bodily harm.

[38]

In response to a question posed during oral argument about
    the meaning of the word cause in the phrase in the commission of which a
    young person causes or attempts to cause serious bodily harm, the Crown relied
    on the standard meaning of causation in criminal law cases, apart from constructive
    first degree murder cases  significant contributing cause. Put another way,
    the test is framed as a contributing cause outside the
de
minimis

range or a contributing
    cause that is not trivial or insignificant. See
R. v.
Smithers
, [1978] 1 S.C.R. 506;
R. v.
Nette
,
[2001] 3 S.C.R. 488.

[39]

Concerning the January 19, 2007 incident, the Crown
    argued that the respondents participation in an offence involving group intimidation
    that resulted in serious psychological harm was sufficient to meet the
    threshold of significant contributing cause. As for the January 27, 2007 incident,
    the Crown asserted that the respondents direct participation through
    continuing to drive the car while his counterpart in the backseat pointed a
    loaded sawed-off shotgun at one of the victims satisfied the necessary
    threshold.

[40]

Taking account of these circumstances, the Crown argued
    that the sentencing judge erred in failing to make an SVO designation; that the
    sentence imposed was therefore illegal; and that a substantial period of
    custody should be substituted.

[41]

In oral argument, the Crown also acknowledged that s.
    42(9) of the
YCJA
has been
    interpreted as conferring discretion on sentencing judges, such that a sentencing
    judge may decline to make an SVO designation even though the threshold test has
    been satisfied. However, as I understood the submissions, the Crown did not
    concede that that interpretation is correct.

ii)        The Respondent

[42]

The respondent submits that to meet the threshold for
    designation as an SVO, a young person found guilty as a party to an offence
    that results in serious bodily harm must perform an act that is a direct cause
    of serious bodily harm to the victim or that constitutes an actual attempt to
    cause serious bodily harm. Alternatively, the threshold will be met where the
    young person masterminded the conduct that actually caused serious bodily harm
    or constituted an attempt to cause serious bodily harm.

[43]

As I understand the respondents position, he submits
    that party liability to the underlying offence is insufficient to support an
    SVO designation and adopts more of a
Harbottle
[4]
approach, arguing that a participants actions must be a direct contributing
    cause of serious bodily harm or they must constitute an actual attempt to
    inflict serious bodily harm.

[44]

The respondent contends that, on the trial judges
    findings, the victims suffered serious psychological harm only as a result of
    being threatened with a sawed-off shotgun. As the respondent did not engage in or
    attempt to engage in this conduct, and as the Crown did not demonstrate that the
    respondent masterminded this conduct, his participation in the offences does
    not meet the threshold for designation as an SVO. The appeal should therefore
    be dismissed.

VI.      ANALYSIS

i)

Interpretation of the SVO
    Provisions of the
YCJA

[45]

The definition of an SVO set out in s. 2(1) of the
YCJA
establishes the threshold for
    designating an offence as an SVO and requires a two-step analysis. First, it is
    necessary to identify the offence that the young person committed. In doing so,
    a court may apply the ordinary rules governing party liability. The second step
    requires a court to determine if the young persons offence caused bodily harm.
    I will discuss the meaning of cause in this context below.

[46]

Once a court is satisfied that the threshold established
    by the s. 2 definition for making an SVO designation has been met, s. 42(9) of
    the
YCJA
gives the court a discretion
    concerning whether to make an SVO designation.

[47]

The starting point for interpreting the definition of
    serious violent offence in s. 2(1) and for interpreting s. 42(9) of the
YCJA
is the modern principle of
    statutory interpretation as set out in Elmer A.
Driedgers

Construction of Statutes
, 2d (ed.)
    (Toronto: Butterworth, 1983), at page 87:

Today there is only
    one principle or
approach,
namely, the words of an Act
    are to be read in their entire context in their grammatical and ordinary sense
    harmoniously with the scheme of the Act, the object of the Act and the
    intention of Parliament.

[48]

I will repeat the SVO provisions of the
YCJA
for ease of reference:

s
. 2(1) serious
    violent offence means an offence in the commission of which a young person
    causes or attempts to cause serious bodily harm.

...

s. 42(9) On
    application of the Attorney General after a young person is found guilty of an
    offence, and after giving both parties an opportunity to be heard, the youth
    justice court may make a judicial determination that the offence is a serious
    violent offence and endorse the information or indictment accordingly.

[49]

On a plain reading of these provisions, the SVO
    definition contained in s. 2(1) of the
YCJA
creates a preliminary threshold that must be met before an SVO designation can
    be made, while s. 42(9) gives sentencing
judges
discretion concerning whether to make the designation in cases where the
    preliminary threshold is satisfied.

[50]

I will begin with the definition of serious violent
    offence and the question of how it applies where a young person is found
    guilty as a party to an offence. I will then turn to the issues of causation
    and the discretion under s. 42(9).

a)

The Definition of Serious
    Violent Offence and Party Liability

[51]

As I see it, the issue about whether and how the s. 21
    of the
Criminal Code
party liability
    provisions apply to the SVO definition arises, at least in part, because of the
    use of the words an offence in the commission of which [a young person causes
    or attempts to cause serious bodily harm] in the SVO definition.

[52]

Section 21(1) of the
Criminal Code
sets out three ways in which a person can be a party
    to an offence:
i
) by actually commit[ting] it; ii)
    by doing or omitting to do anything  for
    the purpose of aiding any person to commit it; or iii) by abet[ting ] any
    person in committing it.

[53]

On a strict reading of s. 21(1) of the
Criminal Code
, one could interpret the
    SVO definition as applying only to principals, as they are the only ones who
    actually commit the offence.

[54]

Thus, in
Paquette
    v. The Queen
, [1977] 2 S.C.R. 189, the Supreme Court of Canada interpreted
    the words a person who commits an offence in s. 17 of the
Criminal Code
as making the statutory
    defence of duress available only to principals (persons who actually commit
    an offence) and not to parties. In reaching this conclusion, the Court stated
    at pp. 193-194:

[
Section 17
]
uses the specific words "a person who
    commits an offence". It does not use the words "a person who is a
    party to an offence." This is significant in the light of the wording of
    s. 21(1) which, in
para
. (a), makes a person a party
    to an offence who "actually commits it"
. Paragraphs
(b)
and
(c)
deal with a person who aids or abets a person committing the
    offence.
In my opinion s. 17 codifies the
    law as to duress as an excuse for the actual commission of a crime, but it does
    not, by its terms, go beyond that.

R.
    v.
Carker
[[1967] S.C.R. 114.], in which reference
    was made to s. 17 having codified the defence or excuse of duress, dealt with a
    situation in which the accused had actually committed the offence. [Emphasis
    added.]

[55]

However, in its subsequent decisions in
R. v. Nicholson
, [1981] 2 S.C.R. 600,
    and
R. v.
McGuigan
,
    [1982] 1 S.C.R. 284, the Supreme Court confined the
Paquette
interpretation to situations where Parliaments intention
    concerning the restricted meaning of the word commit is clear.

[56]

In particular, in
R.
    v. Nicholson
, the Supreme Court of Canada held, at p. 604, that as offences
    are generally defined in terms of those who commit them, offences using
    commission of an offence terminology should not generally be interpreted as
    excluding s. 21 of the
Criminal Code
unless Parliaments intent in that regard is clear:

The
Code
generally defines offences in terms
    of those who commit them and, save where the definition is clearly limited to
    those committing, it has never been applied to exclude culpability of a person
    as a party under s. 21. I do not find that
paras
.
    83(1
)(
a) or (d) have this limited effect.

[57]

Importantly, in
McGuigan
, the Supreme Court also held that where commit is
    used in the broader sense of including party liability, it was unnecessary that
    a person charged with using a firearm while attempting to commit an indictable
    offence actually use the firearm so long the person met the requirements for
    party liability.

[58]

While I accept that the SVO designation has serious
    consequences for young persons and that a cautious approach should therefore be
    used in interpreting the SVO provisions (see
R. v. C.D.K.
and
R. v. T.(V.J.
)
[5]
),
    I see nothing in the SVO provisions or elsewhere in the
YCJA
that indicates a clear Parliamentary intention that s. 21 should
    not be available to support an SVO designation for offenders who are found to
    have committed offences as parties.

[59]

On the contrary, where a young person is found guilty
    as a party to an offence that
causes
serious bodily harm, it seems entirely consistent with the objectives of the
YCJA
that the young person be eligible
    for an SVO designation. Although one of the purposes of youth sentencing is to reduce
    the overuse of custody for non-violent young offenders and although the scheme
    of the
YCJA
sentencing regime makes
    custody a last resort
[6]
,
    the principles of youth sentencing, as expressed in ss. 3 and 38(2), also include:

·

ensur
[
ing
] that a young person is subject to
meaningful consequences
for his or her offence, and

·

ensuring
that a
    sentence is proportionate to the seriousness of the offence and the degree of
    responsibility of the young person for that offence
(emphasis added).

b)

Causation

[60]

I now return to the meaning of cause in the SVO
    definition.

[61]

In my view, the proper meaning of cause is that set out
    in the
Smithers/Nette
formulation
    significant contributing cause  meaning a contributing cause beyond
de minimis
or a contributing cause that
    is not trivial or insignificant.

[62]

I would not adopt the
Harbottle
-like test proposed by the respondent. On my reading of
R. v. Harbottle
and the subsequent
    decision of the Supreme Court of Canada in
R.
    v. Nette
, the decision to adopt the
Harbottle
test flowed from two considerations  the specific language of s. 231(5) of the
Criminal Code
, and the severity of
    the crime and the high degree of moral blameworthiness associated with it.

[63]

Section 231(5)
    provides, in part, as follows:

s. 231(5) Irrespective of whether a murder is planned and
    deliberate on the part of any person, murder is first degree murder
in respect of a person

when death is caused by that person
while committing or attempting to commit an offence under one of the following
    sections ... [Emphasis added.]

[64]

In my view, the language of the SVO definition
    is sufficiently different from that of s. 231(5) to justify rejecting a
Harbottle
-like test.

[65]

Moreover, i
n
Harbottle
, the Supreme Court held that,
    in determining whether to classify a murder as first degree murder under
    what is now s. 231(5) of the
Criminal Code,
a higher test for causation
    was appropriate. The gravity of the crime and the severity of the sentence,
    both indicate, wrote Cory J. at p. 323, that a
substantial and high
degree of blameworthiness, above and beyond that of murder, must be established
    in order to convict an accused of first degree murder (emphasis in
    original).

[66]

Further, in
R. v. Nette
,
    at para. 64, the Supreme Court of Canada indicated that the
Harbottle
test is used in a very
    particular context to indicate a higher degree of legal causation and only
    comes into play at the stage of deciding whether the accuseds degree of
    blameworthiness warrants the increased penalty and stigma of first degree
    murder. Accordingly, the Supreme Court in
Nette
rejected the argument
    that the substantial cause test should be used to describe the requisite degree
    of causation for second degree murder.

[67]

Although
an SVO
    designation subjects a young person to consequences that are potentially more
    severe than would otherwise be the case, the increase in consequences is not so
    great and the stigma associated with an SVO designation is not so severe to
    warrant a departure from the
Smithers/Nette
significant contributing
    cause test, as opposed to the higher substantial cause test in
Harbottle
.

[68]

Similarly, I would
    not adopt the sufficient nexus test proposed by the Crown as an additional
    component of the test for either party liability or causation. Offences such as
    assault causing bodily harm and unlawfully causing bodily harm do not require
    that the Crown demonstrate a sufficient nexus between the actions of a person
    charged as a party to the offence and the bodily harm caused in the commission
    of the offence. Rather, the ordinary rules of causation and party liability
    apply.

[69]

Whether the tests
    proposed by the Crown and the respondent are viewed as addressing causation or
    participation, I see nothing in the language of the SVO definition or in the
    added consequences of an SVO designation that justifies a departure from the
    standard criminal law test for causation or that requires a heightened level of
    participation to support an SVO designation for a person found guilty as a
    party to the underlying offence.

[70]

That said, I do
    think that it may be arguable that some level of foreseeability of bodily harm
    is a necessary component of determining whether a young person is sufficiently
    morally blameworthy to meet the threshold for an SVO designation.

[71]

However, in arguing this appeal, the parties did not
    address the issue of foreseeability of bodily harm as a component of the SVO
    threshold and I do not find it necessary to do so.  As I point out below, the trial judge
    concluded, in effect, that the respondent had subjective foresight of bodily
    harm with respect to the second set of charges.  That level of foresight would clearly satisfy any level of foresight
    that may be found to be necessary at the threshold stage of the analysis.  I would add that if foreseeability of bodily
    harm is found not to be a component of the SVO threshold, in my view, it is a
    factor that can be considered as part of the exercise of discretion as to
    whether to make an SVO designation or not.

[72]

I turn now to the designation of an offence as an SVO
    under s. 42(9).

c)

Discretion under s. 42(9) of the
YCJA

[73]

As I have said, in my view, s. 42(9) gives
a court
discretion not to impose an SVO designation even
    though the threshold for making an SVO designation has been met.
Although this issue was not
    the subject of extensive argument on the appeal, I will touch on it briefly, as
    the sentencing judge spoke in terms of exercising his discretion in relation to
    making the designation.

[74]

Section 11 of
    the
Interpretation Act
, R.S.C. 1985,
    C. I-21, provides that the expression shall is to be construed as imperative
    and the expression may as permissive. Although may can also be construed
    as conferring a power that can be coupled with a duty to exercise that power
    once the statutory criteria for doing so are met, I see no indication in the
    language of s. 42(9) or elsewhere in the
YCJA
of a duty to make an SVO designation:
R.
    v.  Johnson
, [2003] 2 S.C.R. 357, at
    para. 17.

[75]

On the contrary, the conclusion that the use of the
    word may in s. 42(9) gives a court discretion concerning whether to make an
    SVO designation appears consistent with the twin objectives of the
YCJA
of reducing the over-use of custody
    for young persons while holding young persons accountable when they commit
    serious offences. The discretion not to make an SVO designation allows a court
    to achieve the former objective when an SVO designation is unnecessary to
    achieve the latter.

[76]

Moreover, in my
    view, the wording of s. 42(9) is similar to the former s. 753(1) of the
Criminal Code,
which

provided that a sentencing judge may  find the offender to be a
    dangerous offender.

[77]

In
R. v.  Johnson
, the Supreme Court of Canada held
    that the exercise of discretion under the former s. 753(1) of the
Criminal Code
must be guided by the
    relevant principles of sentencing set out in the
Criminal Code
and that one factor that a sentencing judge must consider
    is the possibility that [less restrictive sanctions] would be sufficient to
    achieve the objectives that the dangerous offender provisions seek to advance:
    paras. 27-28.

[78]

Similarly, it seems to me that at least one factor a
    sentencing judge must consider in deciding whether to designate an offence as a
    serious violent offence is whether the consequences of an SVO designation are
    necessary to achieve the purposes of youth sentencing. Depending on the
    circumstances of the particular case, this in turn could bring into play the
    whole panoply of factors relevant to youth sentencing.

[79]

In this case, one such factor could be whether the
    appellant actually foresaw that the offences in which he participated would
    likely cause bodily harm that was more than transient or trifling. This factor
    is relevant because it addresses the appellants level of moral blameworthiness
    for the serious bodily harm caused by the offences.

[80]

Another such factor could be the appellants efforts at
    rehabilitation between the offence and the date of sentencing. If, in the end,
    a sentencing judge is satisfied that it is unnecessary to impose an SVO
    designation to achieve the purpose of holding a young person accountable ...
    through the imposition of just sanctions that have meaningful consequences, it
    seems to me that it would be open to the sentencing judge to decline to make an
    SVO designation.
[7]

ii)

The Sentencing Judge Erred in
    Failing to make an SVO Designation

[81]

In his SVO ruling, the sentencing judge concluded that
    the victims of these offences suffered serious bodily harm in the form of
    serious psychological injuries but that there was an insufficient nexus between
    the respondents conduct and that harm to meet the threshold for an SVO
    designation. At least in relation to the January 27, 2007 offences, I conclude
    that the sentencing judge erred in failing to make an SVO designation.

[82]

In reading the sentencing judges reasons for his SVO
    ruling, it appears that the conduct that led him to infer psychological harm
    sufficient to meet the threshold of serious bodily harm was pointing the
    sawed-off shotgun at the victims:

Again, I am dealing
    with admitted facts that include having a shotgun put to a persons head. I
    accept that I can indeed draw the inference that the type of trauma that would
    flow from that fits the definition of [serious bodily harm].

[83]

However, despite the sentencing judges finding in his
    SVO ruling of an insufficient nexus between the respondents actions and the
    conduct that caused serious bodily harm, it is apparent from his reasons for
    sentence that, at least in relation to the January 27, 2007 incident, the
    sentencing judge was satisfied that the respondents actions amounted to aiding
    his fellow assailant in committing offences that caused serious bodily harm:

I must also factor
    in this youths degree of participation in the two incidents, the second of
    which more clearly demonstrates direct participation. I find the harm done to
    the victims was both intentional and foreseeable, if perhaps not as much for
    this defendant in the first incident, clearly so in the second, where he knew
    of what his colleagues were capable. [Emphasis added.]

[84]

Accordingly, based on the sentencing judges reasons
    for sentence, the threshold for making an SVO designation was clearly met in
    relation to the second set of offences.

[85]

Moreover, as the sentencing judge found that the harm
    done to the victims in the second set of offences was both intentional and
    foreseeable, foreseeability concerns could not have formed the basis for
    exercising his discretion not to make an SVO designation.

[86]

In his SVO ruling, the sentencing judge gave no other
    reason for declining to exercise his discretion to make an SVO designation in
    relation to the second set of offences. However, to the extent that his reasons
    for sentence may indicate that he declined to exercise his discretion because
    he was satisfied that a deferred custody sentence would satisfy the purposes of
    youth sentencing in the circumstances, and that an SVO designation was
    therefore unwarranted, I would hold this exercise of discretion to be
    unreasonable.

[87]

Due to the operation of s. 42(2)(p), the maximum
    available deferred custody sentence was a sentence of six months duration (less
    credit for pre-sentence custody). Particularly having regard to the fact that
    the January 27, 2007 incident was the second occasion in a period of just over
    a week that the respondent was involved in a violent robbery involving the use
    of a sawed-off shotgun, a deferred custody sentence was simply insufficient to
    hold the respondent accountable for his conduct  conduct that on the
    sentencing judges findings was a significant contributing cause of serious
    psychological trauma to at least one of the victims of the January 27, 2007
    incident.

[88]

I reach this conclusion even taking account of the
    positive steps the respondent took towards his rehabilitation following his
    arrest, the opinion expressed in both the pre-sentence report and the s. 34
    assessment that he has a relatively low risk of re-offending, and the concerns
    expressed in the s. 34 assessment that a custodial disposition could expose him
    to more delinquent associates and therefore have a negative impact on his
    rehabilitation.

[89]

In addition to reducing overuse of custody for
    non-violent young persons, the
YCJA
has, as one of its purposes, holding young persons accountable for their
    offences by imposing meaningful consequences. Further, one of the principles of
    youth sentencing is that the sentence must be proportionate to the seriousness
    of the offence and the degree of responsibility of the young person for that
    offence: s. 38(2)(c). As I have said, in my opinion, the deferred custody
    sentence imposed by the sentencing judge was simply insufficient to hold the
    respondent accountable for the extremely serious January 27, 2007 set of
    offences.

[90]

I am also inclined to the view that the SVO threshold
    was met in relation to the first set of offences. It was undisputed that the
    appellant knew his cohorts in both sets of offences were armed with a sawed-off
    shotgun. In these circumstances, it appears that the appellant was a party to
    underlying offences that caused serious bodily harm.

[91]

To the extent that the sentencing judge declined to
    exercise his discretion to make an SVO designation based on the insufficient
    nexus test, he was in error. There is no discretion involved in determining
    whether the SVO threshold, as set out in the SVO definition, is satisfied.

[92]

That said, based on his reasons for sentence, it
    appears that the sentencing judge may have declined to exercise his discretion
    to make an SVO designation in relation to the first set of offences because he
    was not satisfied the appellant was actually aware of what might unfold. Given
    my conclusion on the second set of offences and the impact that will have in
    relation to the global sentence imposed, I consider it unnecessary to review
    that determination.

[93]

In the result, I would set aside, in part, the
    sentencing judges ruling in which he dismissed the Crowns SVO application,
    and I would substitute an order designating the January 27, 2007 offences as
    serious violent offences. As a result of this finding, the deferred custody
    sentence for the January 27, 2007 offences amounted to an illegal sentence and
    it is therefore necessary to revisit the global sentence that was imposed.

[94]

Although approximately 16 1/2 months had elapsed
    between the date on which the respondent was sentenced and the hearing date of
    this appeal, we were provided with no information about his current status.

[95]

In these circumstances, although I think the two-year
    custodial sentence originally proposed by the sentencing judge was a reasonable
    global sentence, it seems to me that the interests of justice require that the
    matter be remitted to the sentencing judge to permit further evidence to be
    adduced concerning the respondents circumstances in the intervening period.

VI.      CONCLUSION

[96]

In the result, I would allow the appeal, make an SVO
    designation for the January 27, 2007 offences, set aside the global deferred
    custody and probation sentence imposed by the sentencing judge, and remit the
    matter to the sentencing judge to complete the sentencing.  The terms of the DNA order and weapons
    prohibition imposed by the sentencing judge shall remain in full force and
    effect.

Signed:           Janet
    Simmons J.A.

I
    agree D. OConnor ACJO

I
    agree R. A. Blair J.A.

RELEASED: DOC April 4, 2011

Appendix  A

Youth Criminal Justice Act
, 2002
, c. 1

Preamble

AND
    WHEREAS Canadian society should have a youth criminal justice system that
    commands respect, takes into account the interests of victims, fosters
    responsibility and ensures accountability through meaningful consequences and
    effective rehabilitation and reintegration, and that reserves its most serious
    intervention for the most serious crimes and reduces the over-reliance on
    incarceration for non-violent young
persons
;

2. (1)

The
definitions in this subsection apply in this Act.

serious
violent offence means an offence in the commission of which a young person
    causes or attempts to cause serious bodily harm.

3.(
1)

The
    following principles apply in this Act:

(
a
) the youth criminal
    justice system is intended to

(i)
    prevent crime by addressing the circumstances underlying a young persons
    offending behaviour,

(ii)
    rehabilitate young persons who commit offences and reintegrate them into
    society, and

(iii)
    ensure that a young person is subject to meaningful consequences for his or her
    offence in order to promote the long-term protection of the public;

(
b
) the criminal justice
    system for young persons must be separate from that of adults and emphasize the
    following:

(i)
    rehabilitation and reintegration,

(ii)
    fair and proportionate accountability that is consistent with the greater
    dependency of young persons and their reduced level of maturity,

(iii)
    enhanced procedural protection to ensure that young persons are treated fairly
    and that their rights, including their right to privacy, are protected,

(iv)
    timely intervention that reinforces the link between the offending behaviour
    and its consequences, and

(v)
    the promptness and speed with which persons responsible for enforcing this Act
    must act, given young persons perception of time;

(
c
) within the limits of
    fair and proportionate accountability, the measures taken against young persons
    who commit offences should

(i)
    reinforce respect for societal values,

(ii)
    encourage the repair of harm done to victims and the community,

(iii)
    be meaningful for the individual young person given his or her needs and level
    of development and, where appropriate, involve the parents, the extended
    family, the community and social or other agencies in the young persons
    rehabilitation and reintegration, and

(iv)
    respect gender, ethnic, cultural and linguistic differences and respond to the
    needs of aboriginal young persons and of young persons with special
    requirements; and

(
d
) special
    considerations apply in respect of proceedings against young persons and, in
    particular,

(i)
    young persons have rights and freedoms in their own right, such as a right to
    be heard in the course of and to participate in the processes, other than the
    decision to prosecute, that lead to decisions that affect them, and young
    persons have special guarantees of their rights and freedoms,

(ii)
    victims should be treated with courtesy, compassion and respect for their
    dignity and privacy and should suffer the minimum degree of inconvenience as a
    result of their involvement with the youth criminal justice system,

(iii)
    victims should be provided with information about the proceedings and given an
    opportunity to participate and be heard, and

(iv)
    parents should be informed of measures or proceedings involving their children
    and encouraged to support them in addressing their offending behaviour.

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; and

(
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.

(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.

39.(1)
A youth justice court shall not commit a young
    person to custody under section 42 (youth sentences) unless

(
a
) the young person has
    committed a violent offence;

(
b
) the young person has
    failed to comply with non-custodial sentences;

(
c
) the young person has
    committed an indictable offence for which an adult would be liable to
    imprisonment for a term of more than two years and has a history that indicates
    a pattern of findings of guilt under this Act or the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985; or

(
d
) in exceptional cases
    where the young person has committed an indictable offence, the aggravating
    circumstances of the offence are such that the imposition of a non-custodial
    sentence would be inconsistent with the purpose and principles set out in
    section 38.

(2) If
    any of paragraphs (1)(
a
) to (
c
) apply, a youth justice court
    shall not impose a custodial sentence under section 42 (youth sentences) unless
    the court has considered all alternatives to custody raised at the sentencing
    hearing that are reasonable in the circumstances, and determined that there is
    not a reasonable alternative, or combination of alternatives, that is in
    accordance with the purpose and principles set out in section 38.

(3) In
    determining whether there is a reasonable alternative to custody, a youth
    justice court shall consider submissions relating to

(
a
) the alternatives to
    custody that are available;

(
b
) the likelihood that the
    young person will comply with a non-custodial sentence, taking into account his
    or her compliance with previous non-custodial sentences; and

(
c
) the alternatives to
    custody that have been used in respect of young persons for similar offences
    committed in similar circumstances.

42.(2) When a youth
    justice court finds a young person guilty of an offence and is imposing a youth
    sentence, the court shall, subject to this section, impose any one of the
    following sanctions or any number of them that are not inconsistent with each
    other and, if the offence is first degree murder or second degree murder within
    the meaning of section 231 of the
Criminal Code
, the court shall impose
    a sanction set out in paragraph (
q
) or subparagraph (
r
)(ii) or
    (iii) and may impose any other of the sanctions set out in this subsection that
    the court considers appropriate:

(
a
) reprimand the young
    person;

(
b
) by order direct that
    the young person be discharged absolutely, if the court considers it to be in
    the best interests of the young person and not contrary to the public interest;

(
c
) by order direct that
    the young person be discharged on any conditions that the court considers
    appropriate and may require the young person to report to and be supervised by
    the provincial director;

(
d
) impose on the young
    person a fine not exceeding $1,000 to be paid at the time and on the terms that
    the court may fix;

(
e
) order the young
    person to pay to any other person at the times and on the terms that the court
    may fix an amount by way of compensation for loss of or damage to property or
    for loss of income or support, or an amount for, in the Province of Quebec,
    pre-trial pecuniary loss or, in any other province, special damages, for
    personal injury arising from the commission of the offence if the value is
    readily ascertainable, but no order shall be made for other damages in the
    Province of Quebec or for general damages in any other province;

(
f
) order the young
    person to make restitution to any other person of any property obtained by the
    young person as a result of the commission of the offence within the time that
    the court may fix, if the property is owned by the other person or was, at the
    time of the offence, in his or her lawful possession;

(
g
) if property obtained
    as a result of the commission of the offence has been sold to an innocent
    purchaser, where restitution of the property to its owner or any other person
    has been made or ordered, order the young person to pay the purchaser, at the
    time and on the terms that the court may fix, an amount not exceeding the
    amount paid by the purchaser for the property;

(
h
) subject to section
    54, order the young person to compensate any person in kind or by way of
    personal services at the time and on the terms that the court may fix for any
    loss, damage or injury suffered by that person in respect of which an order may
    be made under paragraph (
e
) or (
g
);

(
i
) subject to section
    54, order the young person to perform a community service at the time and on
    the terms that the court may fix, and to report to and be supervised by the
    provincial director or a person designated by the youth justice court;

(
j
) subject to section 51
    (mandatory prohibition order), make any order of prohibition, seizure or
    forfeiture that may be imposed under any Act of Parliament or any regulation
    made under it if an accused is found guilty or convicted of that offence, other
    than an order under section 161 of the
Criminal Code
;

(
k
) place the young
    person on probation in accordance with sections 55 and 56 (conditions and other
    matters related to probation orders) for a specified period not exceeding two
    years;

(
l
) subject to subsection
    (3) (agreement of provincial director), order the young person into an
    intensive support and supervision program approved by the provincial director;

(
m
) subject to subsection
    (3) (agreement of provincial director) and section 54, order the young person
    to attend a non-residential program approved by the provincial director, at the
    times and on the terms that the court may fix, for a maximum of two hundred and
    forty hours, over a period not exceeding six months;

(
n
) make a custody and
    supervision order with respect to the young person, ordering that a period be
    served in custody and that a second period  which is one half as long as the
    first  be served, subject to sections 97 (conditions to be included) and 98 (continuation
    of custody), under supervision in the community subject to conditions, the
    total of the periods not to exceed two years from the date of the coming into
    force of the order or, if the young person is found guilty of an offence for
    which the punishment provided by the
Criminal Code
or any other Act of
    Parliament is imprisonment for life, three years from the date of coming into
    force of the order;

(
o
) in the case of an
    offence set out in subparagraph (
a
)(ii), (iii) or (iv) of the definition
    presumptive offence in subsection 2(1), make a custody and supervision order
    in respect of the young person for a specified period not exceeding three years
    from the date of committal that orders the young person to be committed into a
    continuous period of custody for the first portion of the sentence and, subject
    to subsection 104(1) (continuation of custody), to serve the remainder of the
    sentence under conditional supervision in the community in accordance with
    section 105;

(
p
) subject to subsection
    (5), make a deferred custody and supervision order that is for a specified
    period not exceeding six months, subject to the conditions set out in
    subsection 105(2), and to any conditions set out in subsection 105(3) that the
    court considers appropriate;

(
q
) order the young
    person to serve a sentence not to exceed

(i) in
    the case of first degree murder, ten years comprised of

(A) a
    committal to custody, to be served continuously, for a period that must not,
    subject to subsection 104(1) (continuation of custody), exceed six years from
    the date of committal, and

(B) a
    placement under conditional supervision to be served in the community in
    accordance with section 105, and

(ii)
    in the case of second degree murder, seven years comprised of

(A) a
    committal to custody, to be served continuously, for a period that must not,
    subject to subsection 104(1) (continuation of custody), exceed four years from
    the date of committal, and

(B) a
    placement under conditional supervision to be served in the community in
    accordance with section 105;

(
r
) subject to subsection
    (7), make an intensive rehabilitative custody and supervision order in respect
    of the young person

(i)
    that is for a specified period that must not exceed

(A)
    two years from the date of committal, or

(B) if
    the young person is found guilty of an offence for which the punishment
    provided by the
Criminal Code
or any other Act of Parliament is
    imprisonment for life, three years from the date of committal,

and
    that orders the young person to be committed into a continuous period of
    intensive rehabilitative custody for the first portion of the sentence and,
    subject to subsection 104(1) (continuation of custody), to serve the remainder
    under conditional supervision in the community in accordance with section 105,

(ii)
    that is for a specified period that must not exceed, in the case of first
    degree murder, ten years from the date of committal, comprising

(A) a
    committal to intensive rehabilitative custody, to be served continuously, for a
    period that must not exceed six years from the date of committal, and

(B)
    subject to subsection 104(1) (continuation of custody), a placement under
    conditional supervision to be served in the community in accordance with
    section 105, and

(iii)
    that is for a specified period that must not exceed, in the case of second
    degree murder, seven years from the date of committal, comprising

(A) a
    committal to intensive rehabilitative custody, to be served continuously, for a
    period that must not exceed four years from the date of committal, and

(B)
    subject to subsection 104(1) (continuation of custody), a placement under
    conditional supervision to be served in the community in accordance with
    section 105; and

(
s
) impose on the young
    person any other reasonable and ancillary conditions that the court considers
    advisable and in the best interests of the young person and the public.

42.(9)
On application of the Attorney General
    after a young person is found guilty of an offence, and after giving both
    parties an opportunity to be heard, the youth justice court may make a judicial
    determination that the offence is a serious violent offence and endorse the
    information or indictment accordingly.

[1]
Section
    21 of the
Criminal Code
, R.S.C. 1985,
    c. C-46, eliminates the common law distinctions between principals and
    accessories and puts perpetrators of crimes and those who aid or abet them on
    the same legal footing, labelling them all parties to the crime:
R. v. Maciel
(2007), 219 C.C.C. (3d) 516
    (Ont. C.A.), at para. 85. Nonetheless, as a matter of ordinary usage, the term
    party is often used to denote parties to an offence who are not principals.
    As a matter of convenience, unless I specifically indicate otherwise,
    throughout these reasons, I will use party to mean a party to an offence who
    is not a principal.

[2]
See
    Appendix A for the full text of all
YCJA
provisions referred to in these reasons.

[3]
Prior to
R. v. D.B
., [2008] 2 S.C.R. 3, the result of a third SVO
    designation was that a youth court was required to impose an adult sentence
    unless the young person could show that the youth sentence was sufficient to
    hold him or her accountable. The Supreme Court concluded that the reverse onus
    was unconstitutional.

[4]
In
R. v. Harbottle
, [1993] 3 S.C.R. 306,
    the Supreme Court of Canada confirmed that, in cases of constructive first
    degree murder under what is now s. 231(5) of the
Criminal Code
, the phrase when the death is caused by that person
    includes both perpetrators and those who assist in the murder, where they are a
    substantial cause of the victims death. Substantial cause means that a
    persons acts must have been an essential, substantial and integral part of the
    killing:
R. v. Nette
.

[5]

In
R. v. C.D.;
    R. v. C.D.K.
, Bastarache J. adopted a narrow interpretation of the term
    violent offence, which is an undefined term in the definition section of the
YCJA
. Particularly because commission of
    a violent offence is one of the four gateways to custody under the Act, he concluded
    it was important to ensure that that term not be interpreted too broadly, as
    that would be contrary to the object and scheme of the Act, and the intention
    of Parliament, in attempting to reduce over-reliance on custodial sentences for
    young offenders.

Similarly,
    in
R. v. T. (V.J.)
, at para.
19, Steel J.A. adopted the comments of Prof. Nicholas
    Bala in
Youth Criminal Justice Law
(Toronto: Irwin Law Inc., 2002) to the effect that the definition of a serious
    violent offence is intended to be relatively narrow:

It
    is, however, submitted that the definition in section 2 [serious violent
    offence] of the
YCJA
is intended to
    be relatively narrow, with the serious violent offence being distinguished from
    the ordinary violent offence. The impact of such a determination on the life of
    a youth may be profound and, consequently, the discretion to make such
    determinations should be exercised with caution.

[6]
As was
    observed by Blair J.A. in
R. v. S.J.
(2006), 81 O.R. (3d) 511 (C.A.), at para. 45, the thrust of the sentencing
    regime under the Act is that options other than custody are to be given
    priority and that custody is a last resort. Moreover, s. 39 reinforces this
    concept by prohibiting a youth court justice from committing a young person to
    custody under the youth sentences provisions of s. 42 unless one of the four
    gateway[s] to custody, set out in s. 39(1), applies.

[7]
See,
contra
,
R. v. E.F
. 2007, ONCJ 113 at para. 47, in which MacLean J. held
    that rehabilitative successes should not be taken into account in determining
    whether to exercise the discretion.