A second girl guilty of manslaughter in the swarming death of Kenneth Lee will avoid additional jail time, with a judge ruling her treatment in custodywas a “significant” factor in his decision on her sentence.
Tuesday saw the prosecution of eight teenage girls again dominated by issues of how they were treated in custody — with the strip searches they faced weighing on not only their sentencing but whether some of the girls are held accountable at all.
The girl sentenced Tuesday is the second to receive a verdict. The first girl, who also pleaded guilty to manslaughter, was also spared additional detention. In both cases, Justice David Rose heard evidence that the girls were made to strip completely naked during routine searches.
On Tuesday, Rose described the attack on Lee, 59, at a downtown parkette in December 2022 as “vicious” and “cowardly.”
But after hearing all the evidence about the second girl to be sentenced, he concluded she should be subject to a similar fate as the first — 21 months’ probation and participationin an intensive support program that includes counselling.
“There is nothing to be gained by further custody,” said Rose, reading from his decision in a pc28courtroom. As part of that decision, heruled that strip searching such a young person and subjecting them, as the court previously heard, to solitary confinement was “a significant mitigating factor in sentencing.”
The girl — who was 13 at the time of the swarming and stabbing and is now 15 — spent more than 250 days in youth detention facilities. Though she initially received bail in the swarming case, shewas rearrested this August after it was alleged she was involved in an assault on a 52-year-old man at the Wilson TTC station in North York.
During his ruling, Rose acknowledged how the loss of Lee has devastated his family.
He was swarmed and stabbed while trying to protect a female companion he was with that night who some of the girls were harassing for alcohol, according to agreed statements of fact earlier read in court. Lee suffered a stab wound that punctured his heart. He died in hospital.
Living in a shelter at the time, his family has said Lee, the eldest son, struck out on his own later in life to gain independence. He was still in touch with his family and they expected him to visit for Christmas.
His sister, Helen Shum, said Lee was a fun uncle who made time for her kids — pizza parties and Monopoly — and was always cracking jokes.
Rose found the girl sentenced Tuesday has struggled with various mental health challenges. A psychological analysis ordered by the court reported she was “on a roller-coaster.”
Video evidence presented in the swarming case also showed the girl appeared intoxicated in the lead-up to and following the stabbing and that, at 15 years old, she has a serious drug and alcohol problem.
The judge said she was at real risk to reoffend violently if she doesn’t receive intervention.
But he also spoke to the time the girl had already spent in custody, her guilty plea, her willingness to receive counselling and the fact the girl had been strip searched six times. During four of those searches, Rose said, the girl was made to strip completely naked, a violation of provincial policy.
The judge also referenced a decision stemming from the girl’s bail hearing in January 2023. Justice Maria Sirivar ordered the girl not be strip searched when she returned to the youth detention facility — Sundance, operated by the St. Lawrence Youth Association. The next day, Sirivar was informed the facility had instead confined the girl to her room as a result of the judge’s order. Sirivar ordered her released.
The girl’s defence lawyer, Jordana Goldlist, successfully argued ahead of Tuesday’s decision that the teen should receive extra credit for the time she’d already served in custody due to the strip searching — concluding that based on the length of time she’d already been in detention, she should be released.
The Crown agreed the searches were unreasonable but argued the girl should be sentenced to an additional two years in custody and another year of probation.
Working against her release was the “vicious” nature of the attack on Lee, the judge said, but concluded she was not aware one of the other girls had a knife, nor was she the one who wielded it.
Criminal defence lawyer Daniel Brown, who is not acting in the case, said theaim of a youth sentence is to hold the young person accountable for their criminal conduct in a way that is both proportionate to the seriousness of the crime and the degree of their responsibility while focusing on their rehabilitation.
“This means that youth sentences focus less on jail sanctions than adult offenders facing similar crimes,” he said.
Regardless of the sentence being for a young person or an adult, “a judge cannot ignore serious constitutional violations when imposing a just sentence,” Brown said.
“Serious misconduct by those responsible for housing young persons in custody, including illegal strip searches, will almost always result in the reduction of a jail sentence or otherwise risk having the case tossed by the court on account of those violations.”
Following the sentencing, the judge heard evidence Tuesday afternoon in the case of two other girls who previously pleaded guilty. Their defence lawyers made what’s called a Charter application related to the strip searching they experienced, saying the charges against them should now be thrown out.
That issue won’t be decided until later this year or early next year, with the hearing continuing in December due to court scheduling.
The girls’ lawyers say their constitutional rights were violated by the searches. Criminal defence lawyer Anne Marie Morphew told the court she intends to bring at least one expert witness on behalf of her client to talk about the psychological impacts of being strip searched.
The hearing began with testimony from a former worker at a different facility where some of the girls were held — Woodview detention centre near London, Ont., run by Craigwood Children, Youth and Family Services. A lawyer for that and several other workers expected to testify notified the court the worker would be availing herself of laws that prevent any testimony from being used against her in criminal or civil proceedings.
these “suspicionless” and “unnecessary” searches have caused extensive harm and breached their Charter rights.
Both Sundance and Craigwood are run by organizations contracted by the Ministry of Children, Community and Social Services to provide detention services. Almost all of the spaces for girls in detention are within contracted facilities.
Thoughprovincial policies allow for children in detention to be strip searched, even if they have yet to face trial, policy dictates that they never be entirely naked during the process as has been alleged with several of the girls charged in the swarming case. Youth can also be stripped search routinely — meaning, there doesn’t need to be a suspicion of contraband like weapons or drugs being concealed.
The issue of strip searches is looming over the proceedings in the deadly swarming of Kenneth Lee, and has sparked a proposed class-action
The issue of strip searches is looming over the proceedings in the deadly swarming of Kenneth Lee, and has sparked a proposed class-action
The Star has requested and was denied a year’s worth of strip search records for youth in each facility operated in the province. The Star is appealing that decision. In the interim, the ministry was unable to say how many youth have been strip searched in their custody, saying they don’t compile that data.
The eight girls — ages 13 to 16 — who police say were involved in the attack on Lee were all originally charged with second-degree murder.
The four remaining girls who have not pleaded guilty to the lesser charge were committed to trials in Superior Court that are scheduled next year.
None of the girls charged can be identified under the Youth Criminal Justice Act, which promotes rehabilitation for young people.
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