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    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to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    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.S.R., 2012
  ONCA 568

DATE: 20120904

DOCKET: C49793 & C50576

Feldman and Armstrong JJ.A., and Himel J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent/

Appellant

and

J.S.R. (a young person)

Appellant/

Respondent

Lucy A. Cecchetto, Rochelle S. Direnfeld and Ryan
    Wilson, for the Crown

P. Andras Schreck, Candice Suter and Lucy Saunders, for
    J.S.R.

Heard: December 6, 2011

On appeal from the conviction entered on December 7, 2008
    by Justice Ian V.B. Nordheimer of the Superior Court of Justice, sitting with a
    jury, and from the sentence imposed on May 15, 2009 by Justice Ian V.B. Nordheimer,
    with reasons reported at 2009 CanLII 18884.

Feldman J.A.:

INTRODUCTION

[1]

On December 26, 2005, Yonge Street in downtown Toronto was crowded with
    thousands of Boxing Day shoppers. At approximately 5:00 p.m., a gun battle
    erupted between two gangs of young people on the busy sidewalk outside the Foot
    Locker store, which is on the west side of Yonge Street just north of Dundas
    Street. The appellant, J.S.R., a young person within the meaning of the
Youth
    Criminal Justice Act,
S.C. 2002, c. 1, was part of one of the gangs of
    young people involved in the shootout.

[2]

When the shooting stopped, six people had been shot and wounded: three
    innocent bystanders and three individuals who were alleged to have been
    involved in the gun battle. Tragically, fifteen-year-old Jane Creba, who had
    been on Yonge Street shopping with her sister, was struck and killed by a stray
    bullet.

[3]

On December 7, 2008, after a trial before Nordheimer J. and a jury,
    J.S.R. was convicted of second degree murder in relation to the death of Jane
    Creba. The jury also convicted J.S.R. of two counts of aggravated assault,
    possession of a firearm without a licence, possession of a loaded restricted
    firearm, possession of a firearm without a licence or certificate, possession
    of a weapon dangerous to the public peace and pointing a firearm without lawful
    excuse.

[4]

On May 15, 2008, J.S.R., who was 17-years-old when the shooting
    occurred, was sentenced as an adult to life imprisonment without eligibility
    for parole for seven years for second degree murder, one year concurrent on
    each count of aggravated assault, and time served on the four firearms charges.
    The conviction for possession of a firearm without a licence was stayed.

[5]

J.S.R. appeals all convictions, except for the firearms possession
    charges.

[6]

J.S.R. also applies for leave to appeal the order that he be sentenced
    as an adult.

[7]

The Crown appeals the directed verdict of acquittal on the count of
    attempted murder relating to Milan Mijatovic. If J.S.R.s appeal is allowed,
    the Crown asks that a
re-trial
include a charge of
    attempted murder.

FACTS

Overview

[8]

On December 26, 2005, in the hours leading up to the shootout on Yonge
    Street, J.S.R. was at the Eaton Centre with nine other young men: Andrew Smith,
    Dorian Wallace, Louis Woodcock, G.C., Tyshaun Barnett, Andre Thompson, Shaun
    Thompson, Vincent Davis and Jevoy Johnson (the J.S.R. group).

[9]

After leaving the Eaton Centre, the J.S.R. group entered the Foot Locker
    store on Yonge Street. It was not clear whether the whole group went in. Two
    other young men, Jeremiah Valentine and Milan Mijatovic, were also in the
    store, although Mijatovic denied that he was there with Valentine. There was no
    interaction between the groups in the store.

[10]

The
    J.S.R. group left the store first, and stood in an arc formation by the window
    north of the store doors. J.S.R. and his group were facing south. A short time
    later, Valentine exited the store with Mijatovic, and turned northward, toward
    the J.S.R. group. Valentine had a shopping bag in one hand and his other hand
    up his sleeve. He approached the J.S.R. group, and one of the group gave him
    daps (a knocking of the fists). Valentine then announced to the J.S.R.
group that
he had a gun, saying: Are these your boys, cuz
    these are my boys I got a 357. His voice was not raised but he spoke with
    attitude. He pulled up his sleeve to reveal the tip of a gun in his hand.
    J.S.R. and his group did not retreat. They stood their ground and a rapid
    exchange of gunfire erupted. The scene on Yonge Street turned to chaos as
    innocent bystanders desperately sought cover.

[11]

Witnesses
    testified that after the first shot, there was an almost instantaneous return
    of gunfire. Only a second or two elapsed. One witness described the gunfire after
    the first shot as continuous, like popcorn popping. Over the course of several
    seconds, three shooters exchanged multiple shots.

[12]

It
    was established through forensic evidence, and the parties agreed at trial,
    that there were three weapons fired: a .357 revolver, a .25 calibre gun and a
    9mm gun. There was no dispute that the .357 was fired by Valentine, the
    northbound shooter. He fired the .357 northward toward the J.S.R. group at
    least three times. It was one of those shots that struck and killed Ms. Creba.
    There was no way of knowing whether Ms. Creba was struck by the first shot
    fired by Valentine, or one of the subsequent shots.

[13]

The
    9mm and .25 calibre guns were fired by two southbound shooters who were part of
    the J.S.R. group. At J.S.R.s trial, they were referred to as Shooter A and
    Shooter B.

[14]

The
    parties disagree as to which shooter had the 9mm gun and which had the .25 gun.
    As will be set out in more detail below, the Crowns position was that Shooter
    A had the 9mm and Shooter B had the .25, and that J.S.R. was Shooter A. The
    defence position was that Shooter A had the .25 and Shooter B had the 9mm, and
    that J.S.R. was neither Shooter A nor B.

[15]

It
    was admitted at trial that Louis Woodcock, part of the J.S.R. group, carried
    the 9mm gun while at the Eaton Centre and had it at least until the time the
    shooting began. No witness observed anybody passing a gun to anybody else;
    however, the 9mm did come into J.S.R.s possession. When J.S.R. was arrested by
    the police at Castle Frank subway station a half hour after the shooting, an
    empty 9mm gun was found in his jacket pocket. The 9mm was silver in colour with
    a black handle. Subsequent ballistic examinations confirmed that the 9mm gun had
    been fired in the shootout.

[16]

Nordheimer
    J. charged the jury that the only reasonable inference flowing from the fact
    that J.S.R. had the 9mm gun in his jacket pocket after the shooting was that if
    J.S.R. had fired either of the southbound guns, he must have fired the 9mm gun.
    The question then is whether the evidence satisfies you beyond a reasonable
    doubt that J.S.R. fired that gun.

Eyewitness descriptions of the two southbound
    shooters and their guns

[17]

At
    trial, the parties agreed that witnesses David Tarnowski and Artem
    Verechtchaguine saw Shooter A, and that witnesses David Audette, Carl Turner, and
    Jessica Fung saw Shooter B.

Shooter A

[18]

David
    Tarnowski was driving south on Yonge Street when the shooting began. At an area
    parallel to the Foot Locker, he stopped his car because several people came off
    the sidewalk onto the road. His attention was drawn to the sidewalk because he
    heard voices in what he believed was an argument. When he looked over he heard
    the sound of a gun and saw a man running in a zigzag as though trying to avoid
    being hit by something from behind. He then saw Shooter A reach behind him and
    bring forward a gun.

[19]

Tarnowski
    claimed to have had an unobstructed view of Shooter A and said he observed the
    shooter for maybe five, six seconds maximum. He was in the drivers seat of
    the car. Between Tarnowski and the shooter was Artem Verechtchaguine, who was
    in the passenger seat. Tarnowski testified that Verechtchaguine was leaning
    back and therefore he could see past him. He said that neither the roll bar nor
    the window divider obstructed his view.

[20]

Tarnowski
    was very familiar with guns. He grew up with guns in his household in Poland,
    as his grandfather was a police officer there. Tarnowski testified that he saw Shooter
    As whole gun from the side. He testified that the gun was approximately 10
    inches long and that it was silver. Specifically, he said that the barrel of
    the gun was silver and the handle was black, or was covered by black gloves.

[21]

Tarnowski
    only saw Shooter A in profile. From the side, he saw a white hat that appeared
    to be a baseball cap. When asked in cross-examination whether the hat was all
    white, he said from what I could see it appeared to be an all white hat.
    Below the white of the hat, in an arc between the ear and hat, he saw black
    hair which appeared to be in one or two lines similar to cornrows. At the back,
    just past the hat, he saw something that looked, not like a ponytail, but like
    hair in a short little bunch. Tarnowski saw white on the shooters upper body,
    covering his chest area. He was unable to see Shooter As skin colour because
    his arm was covering his face. He did not see the facial features of Shooter A.
    He described Shooter A as of average size, not fat or big, and of average
    height. He said he was definitely taller than five feet but less than six feet.
    He saw something shiny around the ear area.

[22]

Tarnowski
    saw Shooter A reach to his back, either to his pocket or maybe his waist, with
    his right hand, and bring a gun forward. Tarnowski did not see anyone pass
    Shooter A the gun. On this point Tarnowski said (at the preliminary inquiry of
    G.C.):

Question: And is it fair to say that you cant be a hundred
    percent sure exactly where he was getting that gun from at that point, right?

Answer: Thats right.

Question: He could just as easily be getting it from his pocket
    or inside his pants as he may be reaching over and grabbing it from somewhere
    or somebody?

Answer: Well, I dont recall anybody passing him anything,
    anybody was that close to him.

Question: But you said they were all in a circle.

Answer: Yeah, they were all in a circle, right. And then when I
    saw him, he put his hand back and I dont, I would see if, you know, a gun is
    not a pack of smokes, you know. You see when somebody is passing a gun. You
    definitely see a gun being passed you know. So I knew it was from him. But
    whether it was in his pocket or back side or where ever, I dont know where it
    came from, what he took it from, but I know that nobody, from what I recall,
    nobody gave him that gun.

[23]

At
    J.S.R.s trial, Tarnowski testified that at no point did the man that he saw
    turn to face anybody else before the gun came out. His body did not turn and
    his head did not look back.

[24]

Tarnowski
    said that Shooter A raised the gun to a 60 degree angle, fired a shot and
    brought his hand down to eye level. He saw him twist his gun sideways, knuckles
    to the sky and proceed to fire southward while moving backwards. The reaction
    at the scene was like an explosion, everybody moved in all directions. Tarnowski
    saw two shots, and then ducked down and heard approximately three more shots
    from the same area. In total, he heard four to five shots fired.

[25]

Tarnowski
    testified that he noticed another male with a white hat turned to the side
    leaning against a wall with his left leg raised when the firing started. This
    male was not a shooter. He testified that he was certain about seeing two white
    hats, the shooter and this other male. In the compilation video, G.C. is seen
    wearing his white hat to the side.

[26]

Tarnowski
    testified that as he crawled out of the car after the shooting had stopped, he
    looked over his shoulder and saw Shooter A holding the gun at his side, running
    and making a left onto Elm Street with a group of males. He saw something white
    on Shooter As back and the white hat. Officer Callanan (who was working pay
    duty at Sam the Record Man across the street from the Foot Locker) said that Tarnowski
    came out of his car and across Yonge Street to where Officer Callanan was
    standing and described Shooter A. This happened within a minute of the
    shooting. Officer Callanan did not write down what Tarnowski said verbatim, but
    recalls him saying white guy, in a white ball cap, white jacket and hes gone
    down Elm Street westbound. Tarnowski says he does not recall saying anything
    to the officer about a white male. Both Tarnowski and Officer Callanan agreed
    this was a jumbled quick exchange. In none of his interviews or subsequent
    testimony did Tarnowski describe Shooter A as white. In some interviews Tarnowski
    said Shooter A was black, and in others he said he did not see Shooter As skin
    colour.

[27]

Verechtchaguine
    was a passenger in Tarnowskis car. He did not provide much assistance at
    trial, as he ducked for cover in Tarnowskis car. However, he did testify to
    seeing two shooters, the first, with a gun that he couldnt see because it was up
    the gunmans sleeve, and the second, who was shooting a silver gun. The first
    shooter was facing north, towards the Foot Locker. The northbound shooter started
    running almost immediately after he raised his right hand above his head and
    fired a shot into the air. Within one or two seconds, Verechtchaguine heard one
    or two shots, to his right. He turned his head to the right to see a second
    man, holding a silver gun, pointing it south. This shooter was about three to
    four feet away from him. He could only see two to three inches of the barrel,
    but estimated it was approximately 7 inches long and was certain it was silver.
    He said he could not really see this shooter from where he sat in the car. He
    could not, for example, tell his skin colour. As  Verechtchaguine ducked for
    cover, he heard about two to three more shots from the same area as this
    shooter. He testified that the shooter was holding the gun sideways, knuckles
    facing upward, thumb parallel to the ground, and was running backwards firing
    southward. He did not appear to be aiming, just firing.

Shooter B

[28]

David
    Audette, Jessica Fung, and Carl Turner provided a description of Shooter B. Mr.
    Audette was a vacationing police officer with 19 years experience. Mr. Audette
    was standing against the wall just east of the Foot Locker windows. Shooter B
    was just south of him when the shooter pulled out his gun and fired in the
    direction of Valentine. Ms. Fung and Mr. Turner were standing across the
    street.

[29]

All
    three witnesses saw a southbound shooter wielding a gun pointed downward at a
    45 degree angle, and all three described the gun as black or dark. Audette said
    it was black or possibly very dark gun-metal grey. Fung thought it was black,
    and in cross-examination testified that it was definitely not silver.  Turner
    described it as a dark gun. None of the witnesses saw anyone pass Shooter B the
    gun.

[30]

Audette
    described Shooter B as a black male whose complexion was darker than J.S.R.s.
    He said he was 511-6 feet tall, with a messy afro type haircut. He could not
    say if he was wearing anything on his head. He suggested that he could have
    been wearing a do-rag or a bandana, but that it would have to have been a dark
    colour. He explained that based on his experience as a police officer, a
    bandana or do-rag could almost look like hair.

[31]

Fung
    described Shooter B as a black male with a darker complexion, taller than
    average, of average build, and definitely not fat. She did not see any white on
    Shooter Bs clothing and said he was wearing a dark toque and a dark, baggy
    jacket.

[32]

Turner
    described Shooter B as black, about 59 tall, of average build, wearing a dark
    blue baggy parka and something grey on his head. He did not see any white
    t-shirt or trim hanging below his jacket.

[33]

All
    three testified that the gunman was travelling northbound as part of a trio.

[34]

Audette
    saw Shooter B fire a minimum of eight shots. He said some of the shell casings
    struck him as the shooter went by. Fung testified that Shooter B fired five times
    and Turner testified that he fired at least three times.

Where the shooters went after the
    shooting

[35]

Everybody
    scattered after the shootout. Some went north on Yonge Street, and some went
    west on Elm Street. Immediately after the shooting, J.S.R. fled westbound on
    Elm Street to Bay Street and from there to Edward Street where he entered a
    taxi at Edward and Bay. He picked up Andre Thompson and directed the taxi
    driver to take them to the nearest subway station. A camera inside the taxi
    photographed J.S.R., showing his sweatshirt done up, with a small section of
    his white t-shirt visible at the base of his neck. The driver overheard
    J.S.R.s phone conversation in which he said he would meet somebody at Castle
    Frank subway station. After dropping them at St. Patrick subway station, the
    driver reported them, and their destination, to the police.

[36]

A
    half hour after the shootings, police arrested J.S.R. and Thompson at Castle
    Frank subway station. They seized a 9mm gun in J.S.R.s coat pocket.

[37]

Ruben
    Avila, an army medic, was heading south on Yonge Street towards the Eaton
    Centre at the time of the shootout. He was a few blocks away when he heard
    about five or six gunshots. While heading south to offer assistance, he saw three
    men pushing through the crowd heading north on Yonge Street. He saw one of
    these men put a gray or silver coloured gun in his pants. This man was slim,
    approximately 59 tall and wearing a silky multicoloured shirt. He saw a white
    male with a shaved blond head and blue eyes, whom he later identified as G.C.,
    as part of this trio.

[38]

Avila
    continued south towards the scene of the shooting in order to offer assistance.

[39]

Dorian
    Wallace, who had been shot in the right chest area above the sternum, also
    travelled north on Yonge Street. He collapsed just south of Gerrard, and was
    aided by Avila. Wallace refused treatment, got up and staggered north on Yonge
    Street. He was assisted by Andrew Smith, who stood out because of his tan
    suit.

Description of the men in the J.S.R.
    group

[40]

The
    following descriptions of the young men in J.S.R.s group were put forward in
    an Admission of Fact at J.S.R.s trial.

[41]

J.S.R.
    is black with a medium to light complexion, approximately 59 and 145 pounds.
    He was wearing a dark jacket, with a black zip-up hooded sweatshirt underneath.
    An oversized white t-shirt hung below his sweatshirt and jacket. From the Eaton
    Centre video evidence, it could be seen that J.S.R. had his sweatshirt zipped
    up prior to the shooting. J.S.R. also appeared to have his jacket zipped up
    when he was in the cab shortly after the shooting. He had on a white, black,
    and blue Sixers baseball hat. The hat was white on the front, blue at the
    side and black at the back. It had a Sixers logo on the front. Under his hat
    he wore a black and white bandana, tied at the back in a knot that hung down below
    his hat. The Crown suggested at trial that the folds of the bandana might
    possibly be confused for cornrows on a quick glance. He wore dark blue jeans
    and black running shoes.

[42]

Louis
    Woodcock had the 9mm gun at the start of the shootout. He is black, about 59
    tall, and has a large build. He was known as Big Guy because of his size. He
    had no white on him except for his shoes. He was wearing a dark jacket with a
    hood and a dark shirt, light blue jeans and white shoes with dark soles and
    black tongue. He wore a dark baseball hat.

[43]

Dorian
    Wallace is black and of average build. He wore a black leather jacket and a
    white shirt, grey sweatpants and tan boots. On his head he wore a black
    baseball cap, with a white do-rag or bandana underneath, with a white tail
    extending down his back. Wallace had a diamond stud earring in each ear.

[44]

G.C.
    was the only white male in J.S.R.s group. He was wearing a white baseball hat,
    turned to the side, a black jacket, a white shirt, and dark blue sweatpants
    with stripes down the sides.

[45]

The
    other members of J.S.R.s group were wearing either all dark clothing (Jevoy
    Johnson, Vincent Davis, Shaun Thompson, Andre Thompson, and Tyshaun Barnett) or
    were dressed in all tan-coloured clothing (Andrew Smith).

Description of the guns

[46]

The
    9mm gun found on J.S.R. after the shooting was silver with a black handle. The
    .25 calibre gun was never found.

Number of shots fired and number of
    casings found

[47]

Tarnowski
    saw Shooter A fire two shots, and then ducked down and heard approximately three
    more shots from the same area. In total, he heard four to five shots fired.
    Verechtchaguine heard Shooter A fire between three and five shots.

[48]

Audette
    saw Shooter B fire a minimum of eight shots. He said some of the shell casings
    struck him as the shooter went by. Fung testified that Shooter B fired five
    times and Turner testified that he fired at least three times.

[49]

Semi-automatic
    firearms like the .25 calibre and the 9mm eject spent casings from a port on
    the side of the firearm. The .357 revolver fired by Valentine did not eject
    casings.

[50]

The
    police found seven 9mm shell casings and one .25 calibre casing. Two bullets
    from a .357 revolver were also found. In addition to the eight casings and two
    bullets, forensic officers identified two projectiles and forty-one projectile
    fragments at the scene.

[51]

The
    forensic evidence was clear that it was possible that all three guns were fired
    more times than the number of casings and bullets indicated, given the reality
    that not every bullet shell will be found. The ballistics expert, Garry
    Lawrence, testified that shell casings, being round, are notorious for rolling.
    The scene of the shooting was chaotic, with people running, seeking cover, and
    dispersing in different directions. There were also grates on the pavement.
    Moreover, all the gunmen were on the move. And, as noted by the trial judge in
    his charge to the jury, casings could also have been trapped in the sleeves of
    the shooters, as their sleeves covered their hands.

The injuries

[52]

Six
    people were struck with bullets and injured. Dorian Wallace and Jevoy Johnson
    (who were in the J.S.R. group), Milan Mijatovic (who was with Valentine), and Jeyie
    Su, Helen Yiu and David Audette (innocent bystanders).

[53]

Mr.
    Wallace and Mr. Mijatovic were hit with 9mm projectiles that came from the gun
    found on J.S.R.

[54]

Mr.
    Johnson was hit with a projectile that could have come from the 9mm or the
    .357, but could not have come from the .25.

[55]

Ms.
    Su was hit by a 9mm projectile, although it could not be conclusively proven to
    come from the gun found on J.S.R.

[56]

It
    is not known what type of projectile hit Ms. Yiu, however she was standing
    right next to Ms. Su when she was hit and was likely hit by the same type of
    projectile.

[57]

The
    type of projectile that struck Mr. Audette was unknown.

Forensic Evidence  gunshot residue
    and DNA

[58]

Gunshot
    residue was found on J.S.R.s hands, Andre Thompsons left hand, Dorian
    Wallaces jacket and Jevoy Johnsons jacket. The gunshot residue expert at
    trial explained that the presence of gunshot residue indicates that a person
    (a) fired a gun, (b) was near someone who fired a gun, or (c) touched a surface
    that had gunshot residue on it, such as the surface of a gun after it has been
    fired. Since the gun was in J.S.R.s pocket, it would be reasonable to infer
    that he touched the gun. The expert said that the presence of gunshot residue
    does not assist in deciding which of the possible reasons is the one that would
    explain why gunshot residue was found on J.S.R.

[59]

J.S.R.s
    DNA was not found on the 9mm gun. The DNA expert did find the DNA of two other
    people, Louis Woodcock and Cory Benoit, on the gun. The expert testified that a
    person might not leave their DNA on a gun if they had only touched the gun for
    a short time. She did not specify what she meant by a short period of time.

Crown theory

[60]

At
    trial the parties agreed that there was one northbound shooter (Valentine)
    firing the .357 and two southbound shooters. One of the southbound shooters
    fired a 9mm and the other fired a .25 calibre. The Crowns position was that Shooter
    A fired the 9mm and that Shooter A was J.S.R.

[61]

The
    Crown relied on the following to support its theory that J.S.R. was Shooter A,
    firing the 9mm:

The 9mm gun was found on J.S.R. within a half hour
    of the shootout

·

Louis Woodcock, part of the J.S.R.
    group, had the 9mm at the time the shootout began. J.S.R had the 9mm in his
    jacket pocket when he was arrested a short time after the shootout. The gun
    transferred from Woodcock to J.S.R. at some point.

·

J.S.R. had the gun when he got
    into the taxi on Edward Street. While nobody saw the transfer of the gun, the
    evidence reasonably supports the conclusion that the transfer was made when
    Shooter A reached behind him and brought his hand back forward with a gun.

·

While Tarnowski did not see anyone
    pass a gun, he did see Shooter A reach behind him and pull his hand forward
    with a gun.

Shooter A had a silver gun. The 9mm found on J.S.R.
    was silver.

·

There were only two guns in the
    hands of J.S.R.s group. One was seen by Mr. Audette, Mr. Turner, and Ms. Fung.
    This gun was described as black, gunmetal gray, dark, definitely not
    silver. The other gun, seen by Mr. Tarnowski and Mr. Verechtchaguine was
    described as silver.

·

The Crown submitted that if one
    gun is black or dark and the other silver, and the silver one is the 9mm
    retrieved from J.S.R. when he was arrested, then the silver gun is the 9mm gun
    and the dark gun must be the .25 calibre gun.

·

Tarnowski and Verechtchaguine saw
    Shooter A firing the silver 9mm gun.

The eyewitness
    descriptions of Shooter A exclude the other men in the J.S.R. group

·

Shooter A, seen by Tarnowski and Verechtchaguine,
    does not fit the description of Woodcock, who is a large man wearing dark
    clothing. Rather, the description of Shooter A (white hat, white on chest,
    medium build) fits the appearance of J.S.R. as seen from Tarnowskis
    perspective in his car.

·

Tarnowskis observations were
    detailed given the circumstances. Much of his evidence (white hat, white front)
    was supported by other evidence which demonstrates the accuracy of his
    observations and tends to enhance the reliability of his identification
    evidence. J.S.R. was wearing an oversized white t-shirt, and a hat with a white
    front. He was wearing a black and white bandana, which was tied at the back in
    a knot that hung down below the hat.

·

There were only three people in
    the J.S.R. group who had any white on their heads and fronts: J.S.R., G.C. and
    Dorian Wallace. Dorian Wallace and G.C. can be excluded as Shooter A because
    Dorian Wallace was shot in the right chest area by the 9mm found in J.S.R.s
    possession. He would have had to have shot himself in the chest. G.C. was the
    only white male in the group. Although he had a white baseball hat and a white
    shirt, he was the man by the wall with his hat turned to the side. G.C. did not
    run west, as Shooter A was seen to, but rather was seen by Avila running north.
    All of the other members of the J.S.R. group had dark hats and dark coats.
    Woodcock has a large build and was wearing dark clothing (except for his white
    shoes).

Defence Theory

[62]

The
    defence theory was that Louis Woodcock was Shooter B, that  Woodcock fired the
    9mm gun after having carried it around the Eaton Centre that afternoon, and
    that Woodcock passed the 9mm gun to J.S.R. after the shooting ended.  The
    defence relied on the following to support its theory that J.S.R. did not fire
    the 9mm gun:

Shooter A had the .25 and Shooter B had the 9mm

·

The defence argued that Shooter A,
    seen by Tarnowski, fired the .25.

·

The defence said that when one
    considers the number of shots each group of witnesses saw being fired, the fact
    that only one shell casing from the .25 gun was found on Yonge Street, the fact
    that no one appears to have been hit by the .25 gun, and the locations of the
    shooters and victims, the only reasonable conclusion is that Audette, Fung and
    Turner saw the male who fired the 9mm and Tarnowski and Verechtchaguine saw the
    male who fired the .25 calibre.

·

Audette saw Shooter B fire a
    minimum of eight shots. Fung said five and Turner said he saw him fire three or
    four shots before ducking down behind the taxi. By contrast, Tarnowski saw
    Shooter A fire one or two shots. Verechtchaguine also saw only one or two
    shots. Both testified they heard more shots afterwards, which they assumed were
    coming from the same man.

·

Seven 9mm casing were found and
    several people were injured by 9mm projectiles.

·

Only one .25 casing was found.
    Nobody was hit by .25 projectiles.

Louis Woodcock was Shooter B  he fired the 9mm

·

The defence position was that
    Woodcock was Shooter B, and that he fired the 9mm gun, not J.S.R.

·

The defence said it would be inconceivable
    that Woodcock, who had been carrying the loaded firearm all afternoon, would
    pass the gun to someone else instead of firing it himself after the northbound
    shooter opened fire.  Woodcocks DNA was on the 9mm.

·

Audette never saw the gun passed.
    Shooter B pulled it out from somewhere on his person. He fired continuously and
    did not pass the gun during the shootout.

·

The 9mm gun was only passed to
    J.S.R. after the shootout in an effort by Woodcock to get rid of the evidence.

·

Shooter Bs description was wholly
    inconsistent with J.S.R.s appearance. Audette described Shooter B as older
    than J.S.R., with a darker complexion. The description of Shooter Bs clothing
    did not resemble J.S.R.s.

Even if Shooter A, seen by Tarnowski, did have the
    9mm, Shooter A was not J.S.R.

·

Tarnowski did not see a gun being
    passed. He saw Shooter A pull his gun from somewhere on his body, either his
    waist or back pocket.

·

The defence said that to find that
    Tarnowski actually saw a gun being passed to Shooter A would require one to
    reach the illogical conclusion that the gun miraculously appeared in J.S.R.s
    hand in the proper position and ready to fire without J.S.R. looking toward
    Woodcock and without words being spoken.

·

The defence contended that
    Tarnowskis description of Shooter A is so dissimilar to J.S.R.s appearance
    that the person he saw could not have been J.S.R. The defence pointed to the
    fact that Tarnowski described the shooter as having cornrows, an earring and an
    all white hat. None of these match J.S.R. Tarnowski also saw a white shirt on
    the shooter. While J.S.R. was wearing a white t-shirt, it was not visible on
    his chest area because his black jacket and black sweater were done up.

·

At most, the Crowns case was that
    some of the clothing that J.S.R. wore resembled some of the clothing Tarnowski
    saw on Shooter A.

·

The defence pointed to Dorian
    Wallace, who was present at the scene of the shooting and was wearing a white
    t-shirt under a jacket that was likely open at the time of the shooting.
    Wallace had a white do-rag on his head, had cornrows and wore diamond earrings.
    Moreover, Wallace conducted himself in a manner consistent with a guilty
    conscience by initially refusing medical treatment despite his gunshot wound.

Issues

[63]

The
    appellant raises five issues on the appeal: 1) whether the conclusion that the
    appellant fired a gun was unreasonable; 2) whether the conclusion that the
    appellant caused the death of the victim was unreasonable; 3) whether the trial
    judge erred by failing to overrule the decision of the Deputy Attorney General
    under s. 67(6) of the
Youth Criminal Justice Act
requiring the
    appellant to be tried by a jury rather than by a judge alone; 4) whether s.
    229(c) of the
Criminal Code
is unconstitutional; 5) whether leave to
    appeal the sentence should be granted and if so, whether the trial judge erred
    by ordering that the appellant be sentenced as an adult.

Analysis

Issue 1: Were the verdicts that identified the appellant as
    the shooter of the 9mm firearm unreasonable?

[64]

The
    appellants position is that the evidence, taken at its highest, is not
    sufficient to conclude beyond a reasonable doubt that he was the shooter of the
    9mm gun. He was found about one half hour after the shooting with the 9mm, but
    he did not have it before the shooting. The witness Tarnowski saw a shooter
    with some generic features that matched the appellant but with several that did
    not. He specifically did not see another person, whom the Crown says was
    Woodcock, pass the gun to the appellant during the shooting, which was the
    Crowns theory of how the event transpired. Part of the appellants position is
    that the jury acted emotionally because of their horror at the death of an
    innocent young girl.

[65]

The
    appellant asks the court to examine the evidence through the lens of judicial
    experience, after which it should conclude that the verdict was unreasonable.
    In particular, the appellant submits that this was an identification case,
    where the evidence of the eyewitness, Tarnowski, was both not specific enough
    for a trier of fact to be able to safely conclude that it was the appellant
    whom he saw, and as well, contained specific features that excluded the
    appellant, those being the observation of hair in cornrows and of something
    shiny around the ear.

[66]

The
    issue of the sufficiency of the evidence in this case was the subject of two
    previous judicial tests. One was on an appeal by the Crown and by the appellant
    to this court from the decision of the motion judge that the appellant could be
    committed for trial on a charge of manslaughter but not murder. The appellants
    appeal failed and the Crowns appeal succeeded:
R. v. J.S.R.
2008 ONCA
    544, 237 C.C.C. (3d) 305. Based on the evidence adduced at the preliminary
    hearing, this court determined that there was sufficient evidence to commit the
    appellant for trial on the charge of second degree murder contrary to s. 229(c)
    of the
Code
,
including
    sufficient evidence that he caused the death of the victim. This court restored
    the order committing J.S.R. for trial on the murder charge.

[67]

The
    second test came before the case was given to the jury, when the trial judge,
    Nordheimer J., was asked to consider whether to order a directed verdict of
    acquittal on the basis that there was no evidence upon which a jury, properly
    instructed and acting reasonably, could convict.

[68]

The
    trial judge did not direct a verdict of acquittal:
R. v. J.S.R.,
[2008]
    O.J. No. 4957 (S.C.). He reviewed in detail the evidence of the witnesses  Verechtchaguine
    and Tarnowski, noting both its consistencies and inconsistencies with the
    appellant being the shooter of the 9mm gun. He concluded that even though no
    one saw the gun being passed, there was a view of the evidence that the jury
    could accept, depending on their findings of credibility, that Tarnowskis
    description of the southbound shooter could be the appellant, and coupled with
    the fact that he was found with the 9mm gun when he was arrested at Castle
    Frank subway station, that it was the appellant who was the shooter of that
    gun. In making his finding, the trial judge observed that the threshold for the
    prosecution to overcome in resisting a directed verdict application is a very
    low one, and that it was the combination of the evidence of Tarnowski together
    with the appellant having the gun following the shooting, that could sustain a
    finding of guilt on the charge of second degree murder.

[69]

The
    test an appellate court must apply when considering whether the verdict reached
    by the jury was unreasonable is different than the one a trial judge must apply
    on a directed verdict application. The authority of a court of appeal  is found
    in s. 686(1)(a)(i) of the
Criminal Code
which states:

686. (1) On the hearing of an appeal against a convictionthe
    court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is
    unreasonable or cannot be supported by the evidence.

[70]

In
R. v. Yebes
, [1987] 2 S.C.R. 168, the Supreme Court explained that in
    order for the court of appeal to determine whether there has been an
    unreasonable verdict, it must decide whether a properly instructed jury, acting
    judicially, could reasonably have rendered the verdict. While the appellate
    court must not merely substitute its view for that of the jury, in order to
    apply the test the court must re-examine the evidence and to some extent re-weigh
    it and consider its effect.

[71]

The
    process for the appeal court to apply was explained again in
R. v. Biniaris
,
    [2000] 1 S.C.R. 381. In that case, the Supreme Court set out the
Yebes
test
    and said, at para. 36:

The formulation of the test imports both an objective
    assessment and, to some extent, a subjective one. It requires the appeal court
    to determine what verdict a reasonable jury, properly instructed, could
    judicially have arrived at, and, in doing so, to review, analyse and, within
    the limits of appellate disadvantage, weigh the evidence. This latter process
    is usually understood as referring to a subjective exercise  .

[72]

The
    appeal court goes through the same process as the jury does, but does it
    through the lens of judicial experience (
Biniaris
at para.40). In
    some cases, the totality of the evidence and the peculiar factual
    circumstances of a given case will lead an experienced jurist to conclude that
    the fact-finding exercise applied at trial was flawed in light of the
    unreasonable result that it produced (
Biniaris
at para. 39). The Supreme
    Court explained as follows, also at para. 39:

When a jury which was admittedly properly instructed returns
    what the appeal court perceives to be an unreasonable conviction, the only
    rational inference, if the test in
Yebes
is followed, is that the
    jury, in arriving at that guilty verdict, was not acting judicially.

The court of appeal must articulate the grounds for its
    intervention, or for its decision not to intervene  in other words, it must explain
    the use and effect of the application of the judicial lens (
Biniaris,
at
    para. 42).

[73]

On
    this appeal, the parties acknowledged that the jury was properly instructed by
    the trial judge. There was no error on the law or on the proper approach to the
    fact-finding function. In my view, the jury charge was well-organized, thorough
    but at the same time succinctly presented, and most importantly, extremely fair.

[74]

On
    the issue of how to approach identification, the trial judge cautioned the jury
    regarding the frailties of eyewitness identification evidence. He then reviewed
    in detail the physical circumstances and short time period in which the
    witnesses made their observations, the descriptions and the discrepancies
    within those descriptions of the shooters and of the guns involved, the
    circumstances when and where the witnesses gave those descriptions to
    authorities and the discrepancies that arose in the numerous tellings of the
    observations. He concluded that part of his charge with the onus on the Crown
    to prove beyond a reasonable doubt that it was the appellant who was the
    shooter. He explained that the witnesses need not be certain about their
    identification, but the jury must be certain beyond a reasonable doubt, based
    on the whole of the evidence.

[75]

The
    trial judge described the four elements of the offence of second degree murder
    under s. 229(c) of the
Criminal Code
, then reviewed the logic and the
    supporting and conflicting evidence in respect of each element. The key first
    element was, did the appellant do something, which the trial judge identified
    as whether the appellant fired a gun numerous times. The trial judge then
    discussed the evidence with respect to the guns that were fired, including the .357
    magnum revolver shot by Valentine that hit Jane Creba, the .25 calibre and the
    9mm, and suggested to the jury that because the appellant had the empty 9mm
    when he was arrested shortly after the shooting, the only reasonable inference
    was that if he shot any gun, it must have been the 9mm. He instructed the jury that
    the question was whether the evidence satisfies you beyond a reasonable doubt
    that [the appellant] fired that gun.

[76]

The
    trial judge then suggested a method of approach that involved the jury first
    determining which gun each of the two sets of witnesses saw being fired. The
    first set of witnesses was Mr. Audette, Mr. Turner and Ms. Fung, and the second
    set was Mr. Verechtchaguine and Mr. Tarnowski. If the jury concluded that the
    first three witnesses saw the shooter of the 9mm, then, since those witnesses
    descriptions were not consistent with the appearance of the appellant, the jury
    could conclude that the appellant was not the shooter of the 9mm. The trial
    judge then detailed the evidence of all five witnesses, pointing out the
    consistencies and inconsistencies both internally, among witnesses, and with
    the appellant and other people known to be at the scene.

[77]

The
    trial judge concluded this section of the charge by advising the jury that if,
    based on this approach, they accepted that the second set of witnesses,
    Verechtchaguine and Tarnowski, observed the shooter of the 9mm, that conclusion
    by itself did not mean that that shooter was the appellant. The trial judge
    instructed the jury that there were three other pieces of evidence to consider.
    The first was that the appellant was found with the 9mm in his pocket, empty
    and with the slide locked back. The trial judge then said:

I suggest that that fact is somewhat neutral on the issue of
    who fired the gun since it is a fact that would be consistent with [the
    appellant] having fired the gun but it would be equally consistent with [the
    appellant] having been handed the gun after the shooting occurred.

[78]

The
    second piece of evidence was that the appellant had gunshot residue on his
    hands, but that the expert had testified that having residue can be consistent
    with firing the gun as well as being near someone who fired the gun, or
    touching the gun after it had been fired. Further, others also had gunshot
    residue on their hands. The third piece of evidence was that the appellants
    DNA was not on the gun, while Mr. Woodcocks and Mr. Benoits was. Again, the
    expert testified that a person might not leave their DNA on a gun that they
    only touched for a short period of time, although the expert was not asked to
    explain that any further.

[79]

Finally
    on that point, the trial judge referred to the admission that Mr. Woodcock had
    the 9mm at the time the shooting began and no one saw him or anyone pass it to
    the appellant at any time. Therefore, it could have been passed after the
    shooting, when the appellant and others ran around the corner on Elm Street, or
    it could have been that the witnesses just did not see the gun being passed.
[1]

[80]

After
    the trial judge dealt with the rest of the issues (some of which I will refer
    to later in these reasons), he reminded the jury that although it was natural
    to be troubled and saddened by the tragic death of Jane Creba, their job was to
    objectively and dispassionately determine the facts and apply the law as
    explained in order to determine whether the Crown had proved the guilt of the
    appellant beyond a reasonable doubt.

[81]

The
    jury was properly instructed.  The trial judge was satisfied that there was a
    route to conviction on the evidence, depending on which evidence the jury
    accepted. The jury was satisfied of the appellants guilt of second degree
    murder beyond a reasonable doubt.

[82]

This
    courts role now is to re-examine the evidence through the lens of judicial
    experience in order to decide whether, in reaching the verdict of guilt beyond
    a reasonable doubt, the jury was acting judicially. The focus of the courts
    attention is on the discrepancies in the witnesses observations and descriptions
    of the shooter as compared to the actual appearance of the appellant on the day
    of the shooting, together with the failure of any witness to see the gun passed
    to the appellant. Looking at the evidence through the lens of judicial
    experience, was it reasonable for the jury to conclude that the appellant was
    the shooter of the 9mm?

[83]

As
    Tarnowski was the only witness who was able to see and give some description of
    the second southbound shooter, referred to as Shooter A, the appellant points
    to several problems with his identification as precluding a trier of fact from
    coming to a firm conclusion based on his evidence.

[84]

Tarnowski
    said the shooter had an all-white cap and when shown the one the appellant was
    wearing, which was only white at the front, Tarnowski did not believe it was
    the one he saw. Tarnowski thought the shooters hair was in cornrows, perhaps
    one or two lines, in an arc above the shooters ear. In fact, the appellants
    hair was not in cornrows. The appellant was wearing a bandana that was black
    with white markings on it wrapped around his head under his cap. Tarnowski
    initially saw white on the shooters chest, then later on his back. The
    appellant was wearing a long white t-shirt under his jacket, but in pictures of
    him before the shooting at the Eaton Centre and after the shooting in the taxi,
    the appellants jacket was zipped up, so that only a small section of his white
    t-shirt was visible above the zipper. However, the white t-shirt was visible
    hanging down below the appellants waist. Finally Tarnowski thought he saw
    something shiny around the shooters ear, but the appellant was not wearing an
    earring.

[85]

Tarnowski
    also had a limited time to view the scene, his view may have been obstructed by
    his passenger, Verechtchaguine, it all happened very quickly, he gave a number
    of inconsistent descriptions of the shooter and identified someone other than
    the appellant in a photo line-up.

[86]

These
    aspects of Tarnowskis evidence must be weighed in the context of the rest of
    his evidence and the evidence as a whole. First, although there were aspects of
    his descriptions that matched features of both Dorian Wallace and G.C., two
    young men who were with the appellant, it is clear that the shooter of the 9mm
    was not Wallace because Wallace was hit by a bullet from that gun, and it was
    not G.C. because G.C. was separately identified as the person standing against
    the wall with his white hat turned to the side, and was identified as running
    north on Yonge Street, not west on Elm Street, after the shooting.

[87]

Clearly
    the most critical piece of evidence to be considered along with Tarnowskis
    description of the shooter was the fact that the appellant had the empty 9mm
    gun when he was arrested. I also note that Tarnowski saw the shooter with the
    gun as he ran north on Yonge Street and turned west onto Elm Street. Louis
    Woodcock had possession of the 9mm gun prior to the shooting. However, the
    person Tarnowski saw did not match Woodcock (who was dressed in dark clothing and
    was a larger person than the appellant) in any way. The appellant had to have
    received the gun from Woodcock sometime between the beginning of the shooting
    and when the appellant got into the taxi right after the shooting. No one saw the
    appellant receive the gun, but we know it happened.

[88]

Although
    Tarnowski did not believe he saw anyone pass the gun to the shooter, he did see
    the shooter reach behind his back to retrieve the gun and begin to shoot. It would
    not have been unreasonable for the jury to infer that that was when the
    appellant obtained the 9mm, even though Tarnowski did not see it happen.

[89]

The
    defence theory is that Louis Woodcock was the shooter, and that he passed the
    gun to the appellant afterward in order to dispose of the evidence. Although it
    is possible that a young person in a gang might accept a hot gun in the heat
    of the moment, it would not have been unreasonable for the jury to conclude
    that it was unlikely that the appellant would have accepted and retained a gun
    that had just been fired by someone else into a crowded street, hitting and
    injuring a number of people.

[90]

The
    appellant also says that it was unreasonable for the jury to conclude that Shooter
    A had the 9mm gun rather than the .25 calibre gun, and puts forward the
    suggestion that it was Shooter B who had the 9mm. In my view there was more
    than sufficient evidence to conclude that Shooter B had another gun. Most
    compelling is that all three witnesses who observed Shooter B said the gun was
    not silver but black or dark grey. They also saw Shooter B head north on Yonge Street
    after the shooting, not turn west onto Elm Street.

[91]

Turning
    back to Tarnowskis evidence, I must consider the application of
Chartier
    v. Quebec (Attorney General)
, [1979] 2 S.C.R. 474, where the court held
    that where an identifying witness observes a specific dissimilar feature, there
    is no identification but a mere resemblance. The appellant submits that since
    Tarnowski said the shooter had cornrows in his hair and something shiny around
    his ear, that shooter could not have been the appellant.

[92]

Subsequent case law from this court has made it clear
    that it is only where there is no other inculpatory evidence that an observed
    dissimilarity means there is no identification:
R. v. Rybak
,
2008 ONCA
    354, 233 C.C.C. (3d) 58;
R. v. Boucher

(2000), 146
    C.C.C. (3d) 52
(Ont. C.A.);
R. v.
    Dimitrov

(2003), 181
    C.C.C. (3d) 554
at 565 (Ont. C.A.)
    leave to appeal to S.C.C. refused,
[2004]
    S.C.C.A. No. 59
;
R. v. Savoury
(2005), 200 C.C.C. (3d) 94 (Ont. C.A.);
R. v. Blackman
(2006),
215 C.C.C. (3d) 524 (Ont.
    C.A.).

[93]

In
    any event, looking at Tarnowskis evidence as a whole, it was not unreasonable
    for the jury to find him credible, but given the chaotic circumstances,
    possibly mistaken in some of his observations. He was also somewhat unsure of
    certain details, which is consistent with the circumstances in which he
    witnessed the events. His description of the shooter can be viewed as
    resembling the appellant in a number of ways with discrepancies explained by
    those chaotic events.

[94]

Dealing
    briefly with each one, the appellant was wearing a white t-shirt under his dark
    jacket. The jacket was open earlier in the day where a camera recorded the
    appellant at Warden subway station. The jacket could have been open again
    during the shooting. It is also plausible that Tarnowski saw the white t-shirt
    hanging out below the appellants waist and believed he saw white higher up, or
    that he saw a patch of white t-shirt above a partially zipped up jacket.
    Tarnowski thought the shooter was wearing an all-white hat, but he only saw the
    shooter in profile and therefore may not have been able to see the dark parts.
    No other participant was wearing an all-white hat except G.C., who was standing
    against the wall and was not shooting.

[95]

The
    appellant was wearing a bandana that arguably could have been mistaken for cornrows.
    This suggestion was made by Crown counsel in her closing to the jury, asking
    the jury to draw that inference based on their observations of the bandana.
    This was not an error in law (see
R v. D.E.,
2011 ONCA 117, at para.
    12), nor an unreasonable inference for the jury to draw. The observation of
    something shiny around the shooters ear may have been a mistake by the witness.

[96]

Tarnowski
    could not see the shooters face and did not know his skin colour. His
    description of the size and build of the shooter, although generic, was
    consistent with the appellant.

[97]

The
    next aspect of the evidence to be considered in a review for reasonableness is
    whether there was anyone else who also fit the description of Shooter A sufficiently
    to make it unreasonable to conclude beyond a reasonable doubt that the
    appellant was Shooter A. In my view, it was a reasonable conclusion that none
    of the other people in J.S.R.s group could have been Shooter A, either because
    they did not meet the description of this shooter or because they were excluded
    for another reason. Woodcock was too large and he was not wearing white.
    Wallace was wearing a white t-shirt and had a white bandana or do-rag on his
    head under his black hat, however, he can be excluded because he was shot in
    the chest with the 9mm. G.C. had a white hat, however, he was identified as the
    man standing against the wall, and was also seen running north on Yonge Street,
    not west on Elm Street. All of the other members of the appellants group were
    dressed in dark hats and coats, with the exception of Andrew Smith, who wore
    tan-coloured clothing.

[98]

In
    my view, when the evidence is examined as a whole and through the lens of
    judicial experience, it cannot be said that the verdict of guilty on the charge
    of second degree murder was unreasonable. I would not give effect to the first
    ground of appeal.

Issue 2: Was the murder verdict unreasonable because the
    conclusion that the appellant caused the death of the victim was unreasonable?

[99]

Valentine
    shot Jane Creba with his .357 magnum revolver. That shot directly caused her
    death. It is not known whether his first shot hit her or whether it was a
    subsequent shot.

[100]

The trial judge instructed
    the jury that if they found that the appellant was the shooter of the 9mm
    handgun, that act by him could only have caused the victims death if it was a
    contributing cause, beyond something trifling or minor in nature. The issue
    therefore was whether Valentine would have shot Ms. Creba whether or not the
    appellant shot his 9mm.  Put another way for the jury, if the fatal shot would
    not have been fired but for the appellant participating in the gun-fight,
    then the appellants participation would be a contributing cause of the
    victims death.

[101]

The appellant
    submits that, on the record, there was no way to determine whether the fatal
    shot was fired before or after the appellant began to shoot. Second, because
    there was a third shooter, Shooter B with the .25 calibre handgun, it is not
    possible to conclude that it was because of the appellants participation in
    the gun-fight that Valentine shot the victim.

[102]

The causation
    issue was also addressed by this court on the Crowns appeal of the decision to
    commit the appellant for trial on the charge of manslaughter and not second
    degree murder (2008 ONCA 544, 237 C.C.C. (3d) 305). There, this court was
    operating on the record from the preliminary inquiry. Based on the evidence
    from that proceeding, this court concluded that the evidence could support a
    finding that the two groups of young men, the Valentine group and the
    appellants group, had made a mutual decision to engage in a gun fight on Yonge
    Street that afternoon. The court applied the law from cases involving car
    racing, where both drivers agree to a race and one of the drivers hits a
    bystander causing injury or death. In such cases, both drivers may be held to
    have caused the injury or death. See
R. v. Rotundo
(1993), 47 M.V.R.
    (2d) 90 (Ont. C.A.), at para. 2. The court then quoted the description of causal
    responsibility from Hill J. in
R. v. Menzes
(2002), 23 M.V.R. (4th)
    185 (S.C.J.) at para. 105:

Those at risk from the unreasonable and unjustified danger of
    an escapade of competitive driving, whether a spontaneous or planned event,
    include the occupants of other vehicles, cyclists, pedestrians, passengers in
    the racers autos, and the co-participants themselves.
There is one danger.
    Each driver bears equal responsibility for its continued life span subject to
    withdrawal or [an] intervening event.
As each driver in effect induces the
    other to drive in an unlawfully unsafe manner, each is taken to assume any
    consequential risk objectively within the ambit of the danger created. [Emphasis
    added by the quoting court.]

[103]

This court
    concluded its analysis as follows, at para. 30:

Borrowing the words of Hill J. and applying them to this case,
    a reasonable jury could find that each shooter induced the other to engage in a
    gun fight on a crowded street. But for the decision to engage in a gun fight
    on a crowded street and the resulting exchange of bullets, Ms. Creba would not
    have been killed.

[104]

The appellant
    accepts this test, but submits that many of the factual circumstances that
    allowed this court to conclude that there was sufficient evidence of a mutual
    gun fight occurred at the Eaton Centre just before the two groups went to the
    Foot Locker. These facts were excluded from the evidence at the appellants trial.
    The appellant argues that without that additional evidence, it would be
    unreasonable to draw the mutual gun fight conclusion.

[105]

The Crowns
    position on the appeal is that evidence of what occurred earlier at the Eaton
    Centre should not have been excluded at trial. The Crown has appealed that
    ruling as part of its conditional appeal in respect of the charge of aggravated
    assault regarding Milan Mijatovic. The Crown also takes the position that even without
    that evidence, there was still sufficient evidence from which it was reasonable
    for the jury to conclude that the men had reached and communicated that agreement.

[106]

The Eaton Centre
    evidence showed that the two groups had some violent interaction before they
    got to the Foot Locker store, and that the appellants group was inclined to
    violence. It therefore added background colour to the evidence of what occurred
    inside and outside the Foot Locker store, but in my view, it did not form the
    critical components for the inference of a mutual agreement to have a gun fight
    on the street. Those came from the parts of the evidence identified from the
    preliminary inquiry by this court in its earlier ruling, and that also came out
    at the trial:

·

J.S.R. and his group were in the Foot Locker at the same time as
    the northbound shooter;

·

J.S.R. and his gang left the Foot Locker before the northbound
    shooter and congregated on the sidewalk close to the door of the Foot Locker
    arranged in an arc.

·

The northbound shooter made certain comments to J.S.R.s group
    immediately after he exited the Foot Locker. The northbound shooter also
    displayed his .357 Magnum when he made these comments;

·

A reasonable jury could conclude, based on the northern shooters
    conduct, that the northbound shooter expected J.S.R.s group to be outside the
    store and was issuing or accepting a challenge to engage in a gun battle right
    then and there;

·

J.S.R. and others in his gang did not run when the northbound
    shooter flashed his gun; rather, they stood their ground and quickly opened
    fire.

[107]

I also agree
    with the Crown that the car racing cases mentioned above apply. Therefore, it
    does not matter who shot first or that there was a third shooter - the
    appellant contributed sufficiently significantly to the death of the victim to
    meet the causation requirement for murder.

[108]

I conclude that
    looking at the evidence through the lens of judicial experience, and applying
    the law, it was not unreasonable for the jury to find that the appellant caused
    the death of the victim. I would not give effect to this ground of appeal.

Issue
    3: Is Section 229(c) of the
Criminal

Code
inconsistent with ss. 7
    and 11(d) of the
Charter
and therefore unconstitutional?

[109]

The appellant
    raised this issue at trial, but since then, this court has ruled in
R. v.
    Shand,
2011 ONCA 5, 104 O.R. (3d) 291, leave to appeal to S.C.C. refused,
    [2011] S.C.C.A.  No. 270, that the section is constitutional.

Issue 4: Did the trial judge err by failing to overrule as
    unconstitutional the decision of the Deputy Attorney General under s. 67(6) of
    the
Youth Criminal Justice Act
requiring the appellant to be tried by a
    court composed of a judge and jury?

Introduction

[110]

At the time of
    the offence, J.S.R. was a young person as defined under the
Youth Criminal
    Justice Act
, S.C. 2002, c. 1 (
YCJA
). He elected under s. 67(1)
    of the
YCJA
to be tried before a judge of the Superior Court, sitting
    without a jury.

[111]

In response to
    that election, the Crown prosecutor, relying on s. 67(6) of the
YCJA,
required that J.S.R.s trial proceed as a jury trial. Section 67(6) reads:

The Attorney General may, even if a young person elects under
    subsection (1) or (3) to be tried by a youth justice court judge without a jury
    or a judge without a jury, require the young person to be tried by a court
    composed of a judge and jury.

[112]

The Crown
    prosecutor took the position that any Crown counsel could require a jury trial
    for a young person under s. 67(6) of the
YCJA
and that the decision did
    not have to be made by the Attorney General personally.

[113]

J.S.R. brought
    an application at the outset of his trial for an order declaring s. 67(6)
    unconstitutional on the basis that it violates ss. 7 and/or 15 of the
Canadian
    Charter of Rights and Freedoms
(the
Charter
). J.S.R. also
    presented an alternative argument that having his trial proceed as a jury trial
    would violate his right to a fair trial as guaranteed under s. 11(d) of the
Charter.
On this basis, he sought an order under s. 24(1) of the
Charter
directing
    a judge alone trial. Nordheimer J. heard the application from September 8 to
    September 10, 2008.

[114]

In his decision
    dated September 15, 2008, Nordheimer J. concluded that s. 67(6) of the
YCJA
violates ss. 7 and 15 of the
Charter
to the extent that it
    delegates the authority to impose a jury trial on accused young persons to all
    Crown counsel:
R. v. J.S.R.
(2008), 236 C.C.C. (3d) 505 (Ont. S.C.).
    Nordheimer J. ruled that s. 67(6) should be read down so that the reference to
    the Attorney General included only the Attorney General personally or the
    Deputy Attorney General. He declined to rule at that time on the alternative
    argument that requiring J.S.R. to have a jury trial violated his s. 11(d)
    rights.

[115]

Following
    Nordheimer J.s ruling, acting under s. 67(6) of the
YCJA,
the Deputy
    Attorney General required that J.S.R. be tried by a court composed of a judge
    and jury. Before that decision was made, through his counsel, J.S.R. provided
    written submissions to the Deputy Attorney General as to why the section should
    not be invoked. The Deputy Attorney General did not provide reasons for his
    decision.

[116]

The second part
    of J.S.R.s application, namely whether the decision of the Deputy Attorney
    General directing a jury trial violated J.S.R.s rights under s. 11(d) of the
Charter,
then fell to be determined. On October 7, 2008, Nordheimer J. dismissed this
    second part of J.S.R.s application:
R. v. J.S.R.,
[2008] O.J. No.
    4164 (S.C.). Nordheimer J. considered whether J.S.R. had demonstrated that a
    fair trial before a jury would be impossible. He found that J.S.R. had not
    demonstrated that other procedures designed to ensure an impartial jury would
    be insufficient.  Nordheimer J. concluded, at para. 15:

I am not satisfied, on the record before me, that the degree of
    pre-trial publicity in this case has risen to the level that it impairs the
    applicants ability to have a fair trial in light of the statutory and common
    law procedures designed to preserve and protect fair trial rights. I am
    therefore unable to conclude that the applicants rights under s. 11(d) of the
Charter
have been infringed. The application also fails on this alternative basis.

[117]

J.S.R. submits
    that Nordheimer J. erred in dismissing the s. 11(d) portion of his application
    by limiting his inquiry to determining whether J.S.R. could demonstrate that a
    fair jury trial was impossible. J.S.R. relies on the enhanced procedural
    protections for young persons set out in the
YCJA
and submits that the
    following conclusion of Molloy J. in
R. v. G.C.,
2010 ONSC 115, 258
    C.C.C. (3d) 550

at paras. 63-64 should have been drawn in the case at
    bar:

It is difficult to fathom why the Crown is so insistent on a
    jury trial in this case.  The accuseds election was made at a very early
    stage, when there could be no issue of judge shopping.  Given the nature
    of the anticipated evidence in the trial, the obvious danger of its being
    misused by a jury and the Crowns own stated concerns about trial fairness in
    light of the extensive media coverage of the events, a reasonable person might
    expect that a Crown interested only in a fair trial for the young person
    accused would be relieved to learn that the young person had elected trial by
    judge alone.  Clearly that would expedite the trial, simplify many of the
    issues, and remove many, if not all, of the concerns about trial
    fairness.  The question then is why the Crowns reaction is so
    diametrically opposed to this seemingly sensible and fair proposal that the
    extreme step was taken of requesting the Attorney General to override the
    election and require a jury trial.  Further, when that decision was
    challenged and the Crown and the Deputy Attorney General were asked to explain
    the basis for the request and decision, they refused, the only reason given for
    the refusal is that they are not required to justify their position.

In these circumstances, I come to the same conclusion as was
    reached by Charron J. (as she then was) in
McGregor,
namely, that an
    informed person viewing the matter realistically and practically would conclude
    that the Crown was seeking a favourable jury, not an impartial one.  I am
    further of the view that
Charter
considerations are
    engaged.  I come to that conclusion not because I believe G.C. could not
    obtain a fair trial before a jury, but rather because the manner in which this
    decision was made breached his rights under the
YCJA
, breached principles of
    procedural fairness, natural justice and fundamental justice and therefore
    engaged
Charter
values.  In my opinion,
    the actions of the Crown and of the Deputy Attorney General were oppressive and
    an abuse of process.

Analysis

[118]

The scope of the
    courts ability to review a decision made by the Crown in a criminal case has
    been the subject of a number of decisions at all levels of court, including the
    Supreme Court of Canada in its decisions in
Krieger

v. Law Society
    of Alberta,
2002 SCC 65,
[2002]
    3 S.C.R. 372 and
R. v. Nixon,
2011
    SCC 34, [2011] 2 S.C.R. 566
.

[119]

In those cases,
    the Supreme Court explained that in approaching this issue, the first question
    to be determined is whether the Crown decision at issue is part of the core
    prosecutorial discretion of the Attorney General. Such decisions are not
    subject to court review except for abuse of process amounting to flagrant
    impropriety or malicious prosecution. The limits of core prosecutorial
    discretion were described as follows by the court in
Krieger,
at paras. 43 and 46-47:

Prosecutorial discretion is a term
    of art. It does not simply refer to any discretionary decision made by a Crown
    prosecutor. Prosecutorial discretion refers to the use of those powers that
    constitute the core of the Attorney Generals office and which are protected
    from the influence of improper political and other vitiating factors by the
    principle of independence.

...

Without being exhaustive, we believe the core elements of
    prosecutorial discretion encompass the following: (a) the discretion whether to
    bring the prosecution of a charge laid by police; (b) the discretion to enter a
    stay of proceedings in either a private or public prosecution, as codified in
    the
Criminal Code
, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the
    discretion to accept a guilty plea to a lesser charge; (d) the discretion to
    withdraw from criminal proceedings altogether;
R. v. Osborne
(1975),
    25 C.C.C. (2d) 405 (N.B.C.A.); (e) the discretion to take control of a private
    prosecution:
R. v. Osiowy
(1989), 50 C.C.C. (3d) 189 (Sask. C.A.).
    While there are other discretionary decisions, these are the core of the
    delegated sovereign authority peculiar to the office of the Attorney General.

Significantly, what is common to the various elements of
    prosecutorial discretion is that they involve the ultimate decisions as to
whether
a prosecution should be brought, continued or ceased, and
what
the
    prosecution ought to be for. Put differently, prosecutorial discretion refers
    to decisions regarding the nature and extent of the prosecution and the
    Attorney Generals participation in it. Decisions that do not go to the nature
    and extent of the prosecution, i.e., the decisions that govern a Crown
    prosecutors tactics or conduct before the court, do not fall within the scope
    of prosecutorial discretion. Rather, such decisions are governed by the
    inherent jurisdiction of the court to control its own processes once the
    Attorney General has elected to enter into that forum. [Emphasis in original.]

[120]

The Supreme
    Court confirmed this definition of core prosecutorial discretion at para. 21 in
Nixon.

[121]

Other non-core
    decisions made by the Crown in the course of a prosecution are matters of
    tactics or conduct before the court and are governed by the inherent jurisdiction
    of the court to control its own process. However, such decisions by the Crown
    can also only be challenged as an abuse of process. The difference is that the
    standard is somewhat less deferential to the Crown and does not require
    demonstrating flagrant impropriety in order to seek and obtain a remedy.

[122]

The application
    of these principles to a decision by the Crown under s. 568 of the
Criminal
    Code
to require an adult accused to be tried by a court composed of judge
    and jury was recently discussed by M. F. Brown J. in
R. v. De Zen,
2010 ONSC 974
.

[123]

In
De Zen
,
    Brown J. first found that the decision by the Crown under s. 568 of the
Criminal
    Code
is not a core element of prosecutorial discretion and therefore is not
    subject to the very stringent deferential standard when considering whether
    there was an abuse of process in making the decision. I quote from paras. 26
    and 27 of his reasons:

The distinction drawn by the Supreme Court in
Krieger
between core prosecutorial discretion, on the one hand, and tactical Crown
    decisions, on the other, is of direct relevance to this case. The Crowns
    decision to require a jury trial does not, in my view, fall within the core
    elements of prosecutorial discretion. It is not, to use the Supreme Courts
    words and emphasis, in
Krieger
an ultimate decision about
whether
a prosecution should be brought, continued or ceased, and
what
the
    prosecution ought to be for. In this sense, the decision to invoke s. 568 of
    the
Criminal Code
is completely distinguishable from a decision to
    prefer a direct indictment. The latter is manifestly a decision to lay a
    charge, and therefore has been accorded significant deference:
R. v. Stucky
,
    [2005] O.J. No. 5120 (S.C.J.), at paras. 44-45.

A decision to invoke s. 568 of the
Criminal Code
relates
    to the mode of trial in respect of a charge that has already been laid. It does
    not go to the nature and extent of the prosecution (i.e., what the
    prosecution is about). It does not relate to the subject matter of the charges.
    It relates instead to a Crown prosecutors tactics or conduct before the
    court. In my view, it is the very sort of decision that falls outside the
    definition of prosecutorial discretion set out in
Krieger
and is
    governed by this Courts inherent jurisdiction to control its own process
    without deferential treatment.

[124]

Brown J. then
    discussed the two types of abuse of process under s. 7 of the
Charter
:
    1) conduct affecting the fairness of the trial and 2) conduct that is
    procedurally unfair and thereby undermines the integrity of the justice system,
    and concluded at para. 34 that the decision made under s. 568 of the
Criminal
    Code
was reviewable for abuse of process on the more relaxed standard:

In my view, the decision of the D.P.P. in this case to require
    a jury trial pursuant to s. 568 of the
Criminal Code
is open to review
    on the more relaxed standard of fairness and objectivity rather than flagrant
    impropriety. The broad s. 7
Charter
principles of fairness apply in
    these circumstances and the prosecutorial conduct in question is governed by
    the inherent jurisdiction of the court to control its own process.

[125]

He then found that
    in that case, the Crowns decision to require a jury trial constituted an abuse
    of process because it was not made in a fair and objective way and it therefore
    undermined the integrity of the judicial process. Brown J. based this
    conclusion on the cumulative effect of a number of factors and circumstances:
    effectively, the Crown had been participating with the defence in extensive pre-trial
    arrangements to facilitate a complicated fraud trial before an Ontario Court
    judge, but when a judge was assigned to hear the trial, the Crown without
    notice or any explanation advised the defence that it required the case be
    tried by a judge and jury.

[126]

In
De Zen,
Brown
    J. drew the inference from these circumstances that the Crowns decision, made
    only after a judge was named and without giving any reasons, was based on
    partisan considerations. While accepting as a matter of law that as a general
    rule the Crown is not obliged to explain its decisions, its failure to do so in
    the circumstances seriously undermines the perception of impartiality and
    fairness and tarnishes the reputation of the justice system (para. 42).

[127]

I agree with
    Brown J. that the Crowns decision under s. 568 of the
Criminal Code
to
    require a jury trial even where the accused has elected to be tried by a judge
    alone is not a core aspect of prosecutorial discretion. It is not a decision as
    to whether the prosecution will proceed or on what charge. Similarly, in my
    view, a decision by the Deputy Attorney General under s. 67(6) of the
YCJA
to override a young persons decision to be tried by a judge alone and to
    require the trial to be by judge and jury is also not a core exercise of
    prosecutorial discretion. As a result, it is the type of decision by the Crown
    that is subject to judicial review for abuse of process on a less deferential
    standard. Specifically, it does not require flagrant impropriety to be found in
    order to justify a remedy under s. 24(1) of the
Charter
.

[128]

In his decision
    of October 7, 2008, Nordheimer J. concluded that the pre-trial publicity
    surrounding the appellants case, though extensive, would not impair the
    ability of the appellant to have a fair trial, given the statutory and common
    law procedures that are in place to protect fair trial rights. He found there
    was no breach of s. 11(d) of the
Charter
.

[129]

The appellant
    submits that what was not specifically addressed was the question of whether it
    was an abuse of process for the Crown to make the decision under s. 67(6)
    without according the appellant procedural fairness by disclosing to him the
    case he had to meet and/or providing reasons for the Crowns decision. He
    argues that the principles of the
YCJA
as set out in s. 3.(1)(b)(iii)
    and (d)(i) entitle a youth to enhanced procedural protections. Those sections
    state:

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

....

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

(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.

[130]

R. v. G.C.
,
    2010 ONSC 115, 258 C.C.C. (3d) 550 involved another young person charged in
    connection with the Boxing Day shootings. In that case, Molloy J. found that
    young persons are entitled to enhanced procedural protections under the
YCJA
and that the Crowns refusal to provide information regarding the reasons
    for its decision under s. 67(6) to require that G.C. be tried before a judge
    and a jury constituted a contravention of the
YCJA
and a breach of
    fundamental justice.

[131]

I agree with
    Molloy J. that s. 67(6) of the
YCJA
must be read in the context of s.
    3 to ensure that young people are treated fairly, and their right to
    participate in the trial process is respected. However in my view, the Act does
    not require the court to read in full administrative law procedural rights in
    order to achieve fair treatment in the context of s. 67(6), or to avoid a
    finding of abuse of process based on procedural unfairness.  Such an
    interpretation of the
YCJA
would be inconsistent with the broad scope
    traditionally afforded to prosecutorial discretion: see
Krieger
at
    paras. 32 and 48, and
Nixon
at para. 20. Nor is it necessary to ensure
    trial fairness.

[132]

In the case at
    hand, I have concluded that the appellants rights to be treated fairly and to participate in the trial process were not breached. In
    this case, unlike in
De Zen
, the decision by the Deputy Attorney
    General to require a jury trial was not made without notice and the appellant
    was given the opportunity to make submissions to the Deputy Attorney General
    and did so before the decision under s. 67(6) was made.

[133]

Also, unlike in
De
    Zen
, the decision was not made at the last minute after a judge was named
    and in circumstances that aroused the suspicion and concern of the court. To
    the contrary, one can infer that because of the notoriety of the Boxing Day
    events, the Deputy Attorney General would consider it to be in the public
    interest for the public to participate in the trials of the accused persons.  This
    was not a situation, as in
R. v. McGregor
(1999), 43 O.R. (3d) 455
    (C.A.), where the reviewing court would be concerned that the Crown was seeking
    a favourable jury.

[134]

In my view the
    decision of the Deputy Attorney General in this case not to provide reasons for
    the decision under s. 67(6) did not amount to an abuse of process by procedural
    unfairness or a breach of s. 7 of the
Charter
. However, if the
    circumstances of such a decision were to raise the concern of the court and
    suggest abuse, then the failure to provide reasons could be a factor in the reviewing
    courts decision whether an abuse of process had occurred, requiring a
Charter
remedy.

[135]

I would not give
    effect to this ground of appeal.

Issue 5: Did the trial judge err by deciding to sentence the
    appellant as an adult?

[136]

Following
    J.S.R.s convictions, in April, 2009 the Crown applied to have J.S.R. sentenced
    as an adult. J.S.R. submits that Nordheimer J.s reasons for granting the
    application disclose two errors in principle:

(1)

He concluded
    that he was obliged to credit J.S.R. for pre-sentence custody;

(2)

He in effect considered the
    principle of denunciation.

[137]

J.S.R. argues that as a result of these errors, no deference is
    owed to the trial judges conclusions and that the decision to sentence J.S.R.
    as an adult should be set aside.

[138]

I would not give
    effect to either of these submissions. Nordheimer J. gave comprehensive, clear
    and thoughtful reasons in his consideration of the issue of whether to impose
    an adult sentence under s. 72(1) of the
YCJA.
He repeated several
    times in his reasons the principle issue, which was whether the duration of
    any youth sentence that might be imposed for these offences would have
    sufficient length to hold [the appellant] accountable for his offending
    behaviourin accordance with the factors set out in s. 72(1).

[139]

The context of
    the analysis was the maximum penalty allowed for second degree murder under the
YCJA
, which is seven years, with a maximum of four years in custody
    and three years under community supervision, as compared with an adult sentence
    of life in prison with parole eligibility at seven years for a 17 year-old
    offender (s. 745.1(c) of the
Criminal Code
).

[140]

Section 72(1)
    provides:

In making its decision on an application heard in accordance
    with section 71, the youth justice court shall consider the seriousness and
    circumstances of the offence, and the age, maturity, character, background and
    previous record of the young person and any other factors that the court
    considers relevant, and

(a) if it is of the
    opinion that a youth sentence imposed in accordance with the purpose and
    principles set out in subparagraph 3(1)(b)(ii) and section 38 would have
    sufficient length to hold the young person accountable for his or her offending
    behaviour, it shall order that the young person is not liable to an adult
    sentence and that a youth sentence must be imposed; and

(b) if it is of the
    opinion that a youth sentence imposed in accordance with the purpose and
    principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have
    sufficient length to hold the young person accountable for his or her offending
    behaviour, it shall order that an adult sentence be imposed.

[141]

The trial judge
    first addressed the seriousness of the offence and for that purpose he made
    findings of fact based on the jury verdict and the evidence. Those findings
    included that the appellant shot a gun more than once in a gun fight on a
    crowded main street on Boxing Day in Toronto. He hit two people and by
    participating in the gun fight, he caused the death of Jane Creba. Under s.
    229(c), to be found guilty he had to have known that causing someones death
    was the likely result of his actions.

[142]

The trial judge
    then reviewed in detail the pre-sentence report regarding the appellant as well
    as a psychological assessment. Without repeating here the contents of these
    reports, for the purpose of these reasons, the appellant had made some progress
    but was considered a high risk to re-offend. He also had a record that included
    assaults, and was on release on the day of the offence under conditions that
    prohibited him from possessing a gun and from being on Yonge Street.

[143]

The trial judge
    next reviewed case law that discussed the meaning of accountability under the
YCJA
,
    and specifically the fact that the adult sentencing factor of deterrence is not
    part of sentencing under the
YCJA
and that no time can be added to the
    sentence to reflect that factor. He also referred to Justice Department
    materials which state that an adult sentence should only be imposed sparingly
    and where it is clear that it is needed.

[144]

The trial judge
    then discussed the issue of pre-sentence custody and how that should figure
    into his assessment of whether an adult sentence should be imposed. At that
    time the appellant had served three years and four months in pre-sentence
    custody. The appellant asked the court to give no credit for that time served
    in deciding whether the maximum youth sentence of seven years was sufficient
    under the
Act
.

[145]

Nordheimer J.
    concluded that to ignore that amount of time served in order to justify
    sentencing the appellant as a youth to the seven years maximum constituted a
    strained interpretation of the sentencing provisions of the
YCJA
. He
    then concluded on that point:

It seems to me that the need to engage in that exercise may
    only serve as a signal that the sentence mandated by the
Act
is not
    the appropriate sentence.

Whether that is, in fact, the ultimate conclusion that should
    be reached in this case is the issue to which I now return. I begin with the
    three categories of factors under s. 72.

[146]

The appellant
    argues on the appeal that the trial judge erred on this issue based on this
    courts subsequent decision in
R. v. Logan,
2009 ONCA 402,

97 O.R. (3d) 270 (C.A.)
, where the court observed
    that it is a matter of discretion for the trial judge whether to subtract pre-sentence
    custody from the maximum sentence in the
YCJA
. I see no error for two
    reasons. First, because it is a matter of discretion, Nordheimer J. was not
    required to give no credit for pre-sentence custody. Second, it is clear from
    his conclusion on this issue, just quoted, that he dealt with that issue
    because it was raised by the appellant in argument, but his decision on whether
    to impose an adult sentence was based on the three factors in s. 72(1) and not
    on the pre-sentence custody submission one way or the other.

[147]

When the trial
    judge got to the third factor under s. 72(1), other factors that the court
    considers relevant, he referred to the interests of society. In doing so, he
    made it clear that he understood that he was not to take denunciation into
    account and that he was not doing that. Rather, the sentence should ensure that
    the youth criminal justice system commands the respect of society. He then
    stated:

In making this latter observation, I am mindful of the
    possibility that some will say that I am indirectly invoking the principle of
    denunciation that the Supreme Court of Canada has said has no application under
    the
YCJA
. I do not believe that this is the case. I am not attempting
    to arrive at a sentence the object of which is to show societys censure of the
    conduct involved. That would be tantamount to expressing denunciation. Rather I
    am attempting to recognize, as the
YCJA
itself does, that there is a
    legitimate public interest in the sentencing process involving young persons.
    Respect for the justice system commands a sentence that not only is, but is
    seen to be reflective of the acts underlying the offence and the offenders
    role in those acts. We have the right to expect an appropriate degree of
    accountability and responsibility from all of our citizens, even our youngest
    citizens.

[148]

Following this
    paragraph, the trial judge came to the conclusion, based on all of the factors,
    that an adult sentence was necessary in this case.

[149]

I am satisfied,
    based on the reasons read as a whole, that the trial judge did not include
    denunciation as a factor in his decision and that his decision should be
    accorded the deference of this court.

Conclusion

[150]

The Crown also
    filed a Notice of Appeal in this case. Its appeal was contingent on the success
    of the appellants appeal. Had the appellant been successful and had a new
    trial been ordered, the Crown would have asked that the new trial include the
    charge of attempted murder of Milan Mijatovic, and would have argued that the
    trial judge erred in law by directing a verdict of acquittal of this charge and
    by excluding certain evidence in relation to it.

[151]

As I would
    dismiss the appellants appeal, there is no need to address the Crown appeal.

[152]

I
    would therefore dismiss the appellants appeal against conviction. I would
    grant leave to appeal sentence but dismiss the appeal. I would also dismiss the
    contingent appeal by the Crown.

K. Feldman
    J.A.

I agree Robert P. Armstrong
    J.A.

RELEASED:K.F. September 4, 2012 I agree S. Himel J. (ad
    hoc)

[1]
Note that Mr. Tarnowski testified that he saw the person he
    witnessed shooting the gun run west onto Elm Street.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Jones, 2012 ONCA 609

DATE: 20120917

DOCKET: C52736

MacPherson, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Jones

Appellant

Jonathan Dawe, for the appellant

Maria Stevens, for the respondent

Heard: September 6, 2012

On appeal from the sentence imposed on June 29, 2010 by
    Justice A.J. Stong of the Superior Court of Justice.

ENDORSEMENT

[1]

This is a sentence appeal.

[2]

The appellant initially pleaded not guilty to five offences:

(i)    aggravated assault;

(ii)   discharge
    a firearm with intent to wound, maim or disfigure;

(iii)   using
    a firearm while committing an indictable offence;

(iv)  kidnapping
    with a firearm; and

(v)   possession
    of a restricted weapon while prohibited pursuant to an order made under the
Youth
    Criminal Justice Act
.

[3]

Three weeks into the trial, the appellant changed his plea to guilty as
    did his co-accused, Michael Chalmers, who pleaded guilty to essentially the
    same offences.

[4]

The underlying facts are the following.  On September 16, 2007, the
    appellant, co-accused and an unidentified third person kidnapped Dwight Geary
    by pulling him into a car driven by the appellant.  Geary was held captive for
    several hours.  The appellants co-accused pointed a gun at Geary and required
    him to contact Robert Hinds-Grannum to arrange a meeting with Hinds-Grannum at
    his house.  When the kidnappers arrived at Hinds-Grannums house, the
    co-accused and Geary got out of the car.  The appellant remained seated behind
    the wheel.  A confrontation followed in which gunfire was exchanged.  The
    co-accused fired a shot that wounded Hinds-Grannum in his leg.

[5]

The trial judge imposed the following sentence:

·

9 years concurrent for aggravated assault, discharge firearm with
    intent to wound, maim or disfigure and kidnapping with a firearm;

·

2 years concurrent on the charge of possession of a restricted
    weapon contrary to the order under the
Youth Criminal Justice Act
; and

·

1 year consecutive for use of a firearm while committing an
    indictable offence.

[6]

The total sentence is 10 years, which resulted in the appellant having
    to serve 6 more years in custody by reason of a credit for pre-sentence
    detention on the basis of 1.5:1.  In arriving at the pre-sentence credit, the
    trial judge said:

In ascertaining the amount of credit to be given him for his
    sentencing, I take his involvement into account, I take his association with
    weapons into account leading up to this incident, and I am satisfied that
    because he is not likely to qualify for early parole.  For those reasons, I am
    disposed to give him a credit of 1.5 days to 1 for the 33 months, which
    translates into an equivalent of having spent four years in custody prior to
    this sentencing.

[7]

Mr. Chalmers, whom the sentencing judge found to be the principal in the
    shooting of Hinds-Grannum, received a global sentence of 11 years consecutive
    to another sentence of 11 years he was then serving.

[8]

The appellant raised the following grounds of appeal:

(i)    the
    sentencing judge erred in failing to give the appellant credit for his pre-trial
    detention on a 2:1 basis;

(ii)   the
    sentencing judge erred in ignoring the submission of the counsel for the Crown
    that the appropriate global sentence was 9 years;

(iii)  the
    sentencing judge erred in failing to give proper effect to the parity
    principle; and

(iv)  the
    sentencing judge erred by ignoring the principle that first penitentiary
    sentences for youthful offenders should be as short as possible.

[9]

We agree with the appellants first ground of appeal in respect of pre-trial
    credit.  It was the practice at the time of these offences that a sentencing court
    gave 2:1 credit for pre-sentence custody in circumstances such as these.  In
    our view, there does not appear to be any evidentiary basis for the sentencing
    judges conclusion that the appellant would not likely be a candidate for early
    parole.  We agree that the appellant was entitled to 2:1 credit on the basis
    that he was held in detention in a remand centre for 33 months without access
    to rehabilitative programmes.

[10]

We
    are of the view that the sentencing judge erred in exceeding the submission of
    the Crown for a sentence of 9 years without explaining the basis for doing so.

[11]

In
    respect of the parity principle, counsel for the appellant submits that his
    co-accused was the principal and worst offender and therefore there should have
    been a much greater disparity between the two sentences.  The lack of
    significant disparity is largely explained on the basis that Chalmers sentence
    was modified because it was made consecutive to a sentence of 11 years he was
    then serving in respect of other convictions and therefore required adjustment
    to conform to the totality principle.  We would not give effect to this ground
    of appeal.

[12]

Finally,
    we do not agree that the sentencing judge erred in failing to give the
    appellant a shorter penitentiary term because of his youth.  The criminal use
    of firearms is a plague on the life of the Greater Toronto Area.  Those who are
    disposed to engage in this kind of criminal activity have to get the message
    that they will ultimately come face to face with the full force of the law and,
    in the result, will be sent to penitentiary for a long period of time.  Denunciation
    and deterrence are the primary objectives of sentencing in this kind of case.

[13]

In
    the result, the application for leave to appeal is granted, the appeal is
    allowed to the extent that the 10 year sentence is reduced to 9 years to
    conform with the submissions of the Crown counsel at trial.  The appellant is
    entitled to pre-sentencing credit on a 2:1 basis for his pre-trial detention of
    33 months.  Accordingly, the ultimate sentence is an additional 42 months in
    custody from the date of sentencing.

J.C. MacPherson J.A.

Robert P. Armstrong J.A.

David Watt J.A.