



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Owusu, 2021 ONCA 417

DATE: 20210614

DOCKET: C63079

Simmons, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Folorunsu Owusu

Appellant

Mark Halfyard and Chris Rudnicki, for
    the appellant

Craig Harper, for the respondent

Heard: May 26, 2021 by video
    conference

On appeal from the sentence imposed on December
    7, 2016 by Justice Ian V.B. Nordheimer of the Superior Court of Justice, with
    reasons reported at 2016 ONSC 7654.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of
    second degree murder, one count of attempted murder, one count of aggravated
    assault, and one count of reckless discharge of a firearm. The offences arose from
    a mass shooting in Toronto on July 16, 2012, that began when he opened fire at
    a party.

[2]

The appellant had decided to attend the party
    despite his knowledge that he was not welcome. He brought a loaded firearm.

[3]

The appellant was ordered to leave the party by
    a man named Gifted, one of the party organizers. Gifted drew his own firearm,
    but was persuaded to put it away because he was told there were children around.
    When he did, the appellant pulled his gun and began shooting. Two of his shots
    hit Gifted, who returned fire. An unknown man associated with Gifted then
    produced a submachine gun and opened fire.

[4]

Two people were killed and more than twenty were
    injured, including a twenty-two-month-old child. It was the worst mass shooting
    in Torontos history. The appellant, who was 17 years old at the time, did not
    fire the shots that resulted in the deaths, but was convicted of murder under
    s. 229(c) of the
Criminal Code
,
    R.S.C., 1985, c. C-46,
because he initiated the gunfire and knew that
    it would likely cause death.

[5]

The appellant seeks leave to appeal from the
    decision of the sentencing judge granting the Crowns application to impose an
    adult sentence on him. The appellants primary argument is that the sentencing
    judge erred in imposing an adult sentence because he misunderstood the
    Intensive Rehabilitative Custody and Supervision (IRCS) program and, as a result,
    concluded that it would not be effective in his circumstances. The appellant
    argues, further, that the sentencing judge failed to consider the collateral
    immigration consequences of an adult sentence. The appellant brings a fresh
    evidence application for this courts use in the event this court finds an
    error affecting sentence and must sentence him anew.

[6]

For the reasons that follow, the fresh evidence application
    is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.

The sentencing judges decision

[7]

The appellant was sentenced in accordance with
    s. 72(1) of the
Youth Criminal Justice Act
, S.C. 2002, c. 1 (
YCJA
),
    as it existed at the time of the offences. As this court explained in
R. v.
    M.W.
,
2017 ONCA 22, 134
    O.R. (3d) 1, at para. 23, nothing turns on this: under the version of s. 72(1)
    then in force, the Crown was required to satisfy the court that the presumption
    of diminished moral blameworthiness had been rebutted and that a youth sentence
    would not be of a sufficient length to hold the young person accountable, just
    as under the current version.

[8]

The sentencing judge was required to consider
    three factors set out under s. 72(1): the seriousness and circumstances of the
    offence; the age, maturity, character, background and previous record of the
    young person; and, any other factors that the court considered relevant.

[9]

Concerning the seriousness and circumstances of
    the offence, the sentencing judge found that the appellant started the gunfight.
    He attended a party in an area of Scarborough where he knew he might not be
    welcome and took a handgun with him for that reason. He decided to produce his
    handgun when he was ordered to leave the party and to fire it while amongst a
    crowd. The sentencing judge described this conduct as alarming and horrific,
    compounded by the appellants knowledge or foresight that others would return
    fire with their own guns. Two people were killed as a result of the gunfire and
    many suffered life altering injuries.

[10]

As to the second factor  the age, maturity,
    character, background and previous record of the appellant  the sentencing
    judge found that the appellant:

·

was 17 years old when the offences occurred,
    approximately seven months from his eighteenth birthday;

·

was almost 22 years old at time of sentencing;

·

was expelled from high school in grade 11, but
    completed his Ontario Secondary School Diploma while incarcerated;

·

began to use marijuana as a teenager and sold
    cocaine and marijuana;

·

had been found guilty of assault, theft under,
    possession of cocaine and failure to comply with a recognizance, none of which
    resulted in incarceration;

·

displayed good behaviour while in custody;

·

was given psychological treatment and testing
    and found to be a medium risk of re-offending;

·

denied that he shot Gifted; and

·

had a generally positive pre-sentence report.

[11]

The sentencing judge noted that the appellant
    was found to be a suitable candidate for an IRCS order under s. 42(2)(r)(iii)
    of the
YCJA
but found that the value of such an order for the
    appellant was debatable. In particular, he noted that if a youth sentence were
    coupled with an IRCS order its effectiveness would be hampered because the
    appellant would be required to serve his custodial sentence in an adult provincial
    facility pursuant to s. 89 of the
YCJA
,
and would lose IRCS
    funding/programming if an order were made requiring him to serve his sentence
    in a federal penitentiary. If the appellant were not sent to a federal
    penitentiary, the sentencing judge considered it unclear how well provincial institutions
    could deal with young persons subject to an IRCS order. He concluded: I do not
    find the fact that the [appellant] qualifies for an IRCS order greatly
    influences the conclusion whether a youth or an adult sentence is appropriate.

[12]

The sentencing judge added that the appellants progress
    while in custody was the result of the structure and support that youth
    detention facilities had provided. The future was much less clear in the
    absence of this structure. The sentencing judge was concerned that the
    appellant had not acknowledged his central role in the shootings; on the
    contrary, he maintained that he was not responsible for firing the shots that
    started the gunfight. This, the sentencing judge stated, was of significance
    coupled with the fact that the appellant remained at medium risk of
    re-offending.

[13]

The sentencing judge rejected counsels
    characterization of the appellants actions as impulsive or spontaneous,
    describing them instead as reflecting a conscious understanding of the problems
    his attendance at the party might pose, and his choice of how to deal with
    those problems. The sentencing judge stated that the appellants decision to
    draw and fire his gun was the antithesis of spontaneity. At the time of the
    gunfight, the appellant was on bail on charges of robbery and failure to appear.
    Under the bail conditions, he was not to possess firearms and was subject to a
    10:00 p.m. curfew. His decision to attend the party in breach of these bail terms,
    with knowledge of the problems that might arise, was conscious and
    deliberate.

[14]

On the third factor, which requires
    consideration of any other factors the court considers relevant, the sentencing
    judge addressed the interests of society and in particular the protection of
    the public, which he found must be balanced against the interests of young
    persons in rehabilitation and reintegration. The sentencing judge noted that if
    the appellant received the maximum youth sentence of seven years for second
    degree murder, pursuant to s. 42(2)(q)(ii) of the
YCJA
, he would be
    released from custody in four years. If he were to receive the maximum
    community supervision period of three years, he would be free of all
    supervision by approximately age 28. If, on the other hand, the appellant were
    to receive an adult sentence he would receive life imprisonment with a seven-year
    period of parole ineligibility. Because adult parole ineligibility runs from
    the date of detention, the appellant would be eligible for parole under an
    adult sentence one year before he would be released from prison to community
    supervision under a maximum youth sentence. An adult sentence therefore would
    not necessarily treat the appellant more harshly than a youth sentence. The
    primary benefit of an adult sentence would be the structure it would create for
    continued monitoring of the appellants conduct.

[15]

The sentencing judge concluded that the
    seriousness and circumstances of the offence clearly favoured the imposition of
    an adult sentence, while the appellants age, maturity, character, background
    and previous record supported the imposition of a youth sentence. The
    sentencing judge recognized that the appellant had made significant progress
    while in the youth system but expressed the concern that the principal benefits
    of the youth system would be lost even if a youth sentence were imposed because
    the appellant would have to be transferred to an adult facility. The sentencing
    judge reiterated the problems he perceived with an IRCS order in the
    appellants case. Finally, the sentencing judge concluded that the appellants
    offences were horrendous and instilled fear in the public, and that
    accountability, which equates to retribution, required a punishment that
    properly reflected the moral culpability of the appellant.

[16]

Balancing all of these factors, the sentencing
    judge concluded that the presumption of diminished moral blameworthiness had
    been rebutted and that the only sentence that would hold the appellant
    accountable was an adult sentence. It was also the only sentence commensurate
    with the damage that had been done, and the only sentence that would provide
    for the ongoing supervision of the appellant he considered necessary. He
    sentenced the appellant to life imprisonment with no parole eligibility for a
    period of seven years, concurrent on both counts of second degree murder, and to
    three years, concurrent, on the count of attempted murder. The appellant was
    credited with four years pre-trial custody and was sentenced to time served on
    the counts of aggravated assault and reckless discharge of a firearm.

The alleged IRCS error

[17]

The focus of the appellants submissions was the
    sentencing judges analysis of the suitability of an IRCS order, which the
    sentencing judge properly considered in the context of assessing
    accountability. The appellant argues that the sentencing judge committed the
    error recognized by this court in
M.W.

Specifically, the
    sentencing judge erred in concluding that the value of an IRCS order was
    debatable because the appellant would serve his sentence in an adult
    institution, and as a result would lose the supports that made the IRCS program
    effective.

[18]

In
M.W.
,
the sentencing judge
    imposed an adult sentence because, among other reasons, he was concerned that
    the appellants would be transferred to a federal institution where the funding
    for their IRCS orders would cease. This court held that the sentencing judges
    speculation was an error: s. 93(1) of the
YCJA
requires young persons
    serving a youth sentence to be transferred to a provincial correctional
    facility once they reach age 20, unless transfer to the federal system is
    warranted in the best interests of the young person or the public. There had
    been no suggestion that the appellants would be transferred to a federal
    institution.

[19]

The appellant submits that the decision in
M.W.
is dispositive of this appeal. He says that there is no evidence that he could
    not be managed effectively by a seven-year IRCS order or that a life sentence
    under the supervision of the Parole Board of Canada would provide better
    support.

[20]

We do not agree. The appellant was 21 years old
    when he was sentenced and, pursuant to s. 89(1) of the
YCJA,
was
    required to serve his sentence in an adult facility. (That the appellant
    appears to have remained in a youth facility beyond age 21 is not significant
    for purposes of the sentencing judges analysis.) Unlike in
M.W.
, the
    sentencing judge was concerned with the implications flowing from the appellant
    serving his sentence in an adult facility, regardless of whether that facility
    was provincial or federal. As he put it, [i]t is quite apparent that the adult
    system is simply not set up to accommodate young persons, who are required to
    serve a sentence in an adult facility, but for whom it is desirable that they
    received the type of attention, and the type of programming, that is available
    in the youth system.

[21]

The sentencing judges concerns about the
    suitability of the IRCS program for the appellant were based on more than
    simply where the sentence would be served and the risk of transfer to a federal
    facility. He was also concerned that the appellant had not acknowledged
    responsibility for the offences, a key consideration in the accountability
    analysis. Finally, as the Crown notes, other errors found in
M.W.

did
    not occur in this case, including unjustified concern in enforcement of the
    IRCS program and an erroneous belief that actual credit had to be given for
    pre-sentence custody when imposing a youth sentence.

[22]

However, even assuming that the sentencing judge
    erred concerning the value of an IRCS order, there is no basis for this court
    to intervene. Errors in the reasoning process do not justify intervention on
    appeal
per se
; any error must have had an impact on the sentence
    imposed. In the absence of an error that impacted the sentence, there is no
    basis to intervene unless a sentence is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089,
at
    para. 11.

[23]

In this case, the appellants eligibility for an
    IRCS order was simply one consideration relevant to the question of
    accountability. As the sentencing judge stated: I do not find the fact that
    the [appellant] qualifies for an IRCS order greatly influences the conclusion
    whether a youth or an adult sentence is appropriate. Put another way, the appellants
    sentence would have been the same regardless of the alleged error concerning
    the IRCS program. Rehabilitation was only one factor relevant to the question
    of accountability and was not determinative of the matter. The sentencing judge
    properly recognized that the central question he had to determine was whether
    or not a youth sentence would have sufficient length to hold the appellant
    accountable for his offending behaviour, and he found that it would not. This
    finding was open to the judge and is entitled to deference.

[24]

The alleged error concerning the IRCS program did
    not have an impact on the sentencing judges conclusion that the Crown had
    rebutted the presumption of reduced moral culpability. It was irrelevant to
    that issue:
M.W.
, at para. 107. The sentencing judge rejected the
    appellants characterization of his conduct as impulsive. On the contrary, he
    found that the appellants decisions reflected a conscious understanding of
    the potential for problems associated with his attendance, and his choice as to
    the manner in which he was going to be able to respond to those problems. He
    noted that there was no evidence that the appellant was suffering from a mental
    illness or disability at the time of the events that would have impaired his ability
    to understand the moral impact of his actions. The sentencing judge noted,
    further, that the appellant was on bail on charges of robbery and failure to
    appear and was in breach of both a weapons ban and a curfew order when he
    committed the offences.

[25]

The sentencing judges characterization of the
    appellants actions as conscious and deliberate is amply supported on the
    record. He considered the age, maturity, and the conduct of the appellant both
    before and after the offence  his improvement in custody as well as the medium
    risk of re-offending that he posed  and concluded that the presumption of
    diminished moral blameworthiness had been rebutted. This conclusion reveals no
    error and is entitled to deference.

[26]

In summary, there is no basis to interfere with
    the sentencing judges conclusions that the Crown had rebutted the presumption
    of reduced moral culpability; that only an adult sentence would hold the
    appellant accountable for his role in the events that led to two murders and more
    than 20 people being injured; that only an adult sentence was commensurate with
    the damage that was done; and, that only an adult sentence would provide for
    the ongoing supervision of the appellant he found necessary. This ground of
    appeal must be rejected.

The collateral immigration consequences

[27]

The appellant submits that the trial judge
    failed to take into account the immigration consequences that would result from
    the imposition of an adult sentence. The appellant says that he is a permanent
    resident but not a citizen of Canada and would be subject to a removal order
    unless sentenced to a youth sentence under the
YCJA
.

[28]

The immigration consequences of an adult
    sentence were the subject of brief submissions from trial counsel but were not
    addressed by the sentencing judge in his decision. The sentencing judge should
    have addressed the matter, but his failure to do so was harmless in the
    circumstances.

[29]

Section 718.1 of the
Criminal Code
codifies proportionality as the fundamental principle of sentencing in the
    adult context. Collateral consequences are not to be applied in a manner that
    undermines that principle. As the Supreme Court of Canada has emphasized,
    collateral consequences cannot be used to reduce a sentence to a point where
    the sentence becomes disproportionate to the gravity of the offence or the
    moral blameworthiness of the offender:
R. v. Suter
, 2018 SCC 34, [2018] 2 S.C.R. 496,

at
    para. 56.

[30]

The appellant caused the largest mass shooting
    in Torontos history. The sentencing judge concluded an adult sentence was
    required because he was satisfied that a youth sentence would not have
    sufficient length to hold [the appellant] accountable for his offending
    behaviour in accordance with the purpose and principles set out in
    subparagraph 3(1)(b)(ii) and s. 38 of the
YCJA
. The collateral
    immigration consequences could not have reduced the sentence to a youth
    sentence.

[31]

This ground of appeal must be rejected.

The fresh evidence

[32]

As we have not found an error requiring that we
    sentence the appellant anew, the application to admit fresh evidence is
    dismissed.

Conclusion

[33]

Leave to appeal sentence is granted, but the
    appeal is dismissed.

Janet Simmons J.A.

E.E. Gillese
    J.A.

Grant Huscroft
    J.A.


