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138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records)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

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. T.B., 2013 ONCA 675

DATE: 20131107

DOCKET: C57039

Rosenberg, Rouleau and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T. B. (a young person)

Appellant

Craig Parry, for the appellant

Andrew Menchynski, for the respondent

Heard: October 28, 2013

On appeal from the sentence imposed on March 12, 2013 by Justice J.E. Allen of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

Overview

1The appellant appeals from the disposition imposed by Allen J. on March 12, 2013 of 12 months closed custody and supervision and 12 months probation on a charge of sexual interference. For the following reasons the appeal is dismissed.

Background

2Counsel have been very helpful in their submissions on this difficult case. The 17-year-old appellant, who had no prior criminal record, committed a very serious offence. He gained access to an apartment building lobby, pursued the 13-year-old complainant, a complete stranger, grabbed her, groped her between her legs and grabbed her breasts. He continued the assault notwithstanding the complainant’s screams and attempts to get away.

3Extensive material was placed before the trial judge to assist him with sentencing the appellant. Because of his very unfortunate antecedents detailed in the pre-sentence report, the Gladue report and the reports of Dr. Chretien and Dr. Dickey, the appellant presents as a high risk to re-offend generally and to re-offend sexually. He suffers from a relatively severe conduct disorder that could lead to Antisocial Personality Disorder as an adult. He may well suffer from a deviant sexual preference which would cause additional serious concern. Due to his intellectual limitations, effective treatment is problematic. The evidence strongly supported the view that the appellant required residence in a structured living situation.

Issues

4The two principal issues raised by appellant’s counsel are the lack of credit for pre-sentence custody and the imposition of a sentence that does not accord with s. 38 of the Youth Criminal Justice Act, S.C. 2002., c. 1.

Pre-Sentence Custody

5As to the pre-sentence custody, we agree that it would have been helpful if the trial judge had explicitly dealt with the issue. That said, we are satisfied that this is one of those exceptional cases, as discussed in R. v. E.L. (2006), 2006 12290 (ON CA), 210 O.A.C. 124 (C.A.), and R. v. N.W.P., 2008 MBCA 101, 231 Man. R. (2d) 61, in which it was open to the trial judge to not give any credit for pre-sentence custody. The lengthy comments by the trial judge in his dialogue with counsel and his reasons on March 6, 2013 explain why the maximum disposition was required, in this unusual case, to protect the public through rehabilitative measures in a highly structured setting.

Compliance with Section 38 of the YCJA

6We are also satisfied that the disposition is consistent with s. 38 of the Act. Counsel submits that the trial judge’s candid observation about the difficulty in holding this appellant accountable shows that the custodial portion of the sentence was imposed solely for the purpose of incapacitation. We do not agree for the following reasons. The trial judge explicitly stated that he was not imposing sentence for the purpose of incapacitation or general deterrence. It is clear that the trial judge was rightly concerned that if the appellant did not get proper treatment a time would come when a sentence would have to be imposed to segregate the appellant from society. However, that was a matter that would occur only if the appellant was sentenced in the future as an adult for new serious offences.

7The trial judge made it abundantly clear that the disposition he was considering was for purposes of rehabilitation. His comments about protection of the public must be seen in that context.

8Section 38(1) of the Act provides that the purpose of youth sentencing is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. In the course of his reasons on March 6, the trial judge made some very strong comments about accountability, at one point stating that “holding him accountable in the context of this particular case is nonsense”. Counsel submits that accordingly the trial judge must have imposed the custodial sentence for reasons other than accountability. When the reasons are read as a whole it is apparent that the trial judge’s comments were rooted in the appellant’s intellectual limitations and the impulsiveness of the act. The sentence imposed did attempt to hold the appellant accountable for his actions in the sense discussed in R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 33, to the extent possible, given the appellant’s limitations. It is doubtful that any lesser disposition would have been effective in holding the appellant accountable while at the same time promoting his rehabilitation and reintegration into society as required by s. 38(1) of the Act.

Alternatives to Custody

9The appellant also submits that the trial judge erred in principle in failing to consider alternatives such as a group home or custody at the Syl Apps facility. However, the trial judge did consider these alternatives and rejected them for cogent reasons. The group home option would not be sufficient after the appellant turned 18, which was to occur shortly. As to Syl Apps, the sentencing had already been adjourned once to get more information. Through his counsel, the appellant opposed a further adjournment and provided reasons why the Hope Manor facility was preferable.

Disposition

10Accordingly, while leave to appeal is granted, the appeal from sentence is dismissed.