The court hearing this matter directs that the following notices be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. (1) Identity of offender not to be published — Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 (1) Identity of victim or witness not to be published.— Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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.

112. No subsequent disclosure — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. (1) Offences — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( 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.

Further:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 (1) Order restricting publication -- sexual offences – 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) Mandatory order on application – 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.

486.6 (1) Offence – - 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.

And Further:

This hearing is also governed by section 278.95 of the Criminal Code:

278.95 (1) Publication prohibited – A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2022 06 16 Court File No.: Central East Region: Oshawa Courthouse: File #Y20-18261

Between:

Her Majesty the Queen

— And —

L.P., a young person

Before: Justice Peter C. West

Submissions Heard on: April 8, 2022 Reasons for Judgment released on: June 16, 2022

Counsel: Mr. S. O’Neill and Mr. D. Morgan.................................................... counsel for the Crown Mr. T. Balka.................................................................... counsel for the young person L.P.

WEST J.:

1On February 1, 2022, I found L.P., a young person, guilty of sexually assaulting H.B. on March 9, 2020. I ordered a pre-sentence report and sentencing submissions were adjourned to April 8, 2022. Sentencing was adjourned to June 16, 2022, to allow L.P. to complete Grade 12 so he could graduate from high school.

2The facts of the sexual assault are fully set out in my reasons for judgment dated February 1, 2022 and I do not intend to set them out again. L.P. and H.B. had only just begun communicating with each other through Snapchat, approximately a week before H.B. walked L.P. home after school on March 9, 2020. L.P. was in Grade 10 and H.B. was in Grade 9. L.P. invited H.B. into his house to watch a movie and after a short time L.P. engaged in sexual intercourse with H.B. despite her telling him to stop repeatedly.

Position of the Parties

3The Crown is seeking a six month custody and supervision order pursuant to s. 42(n), submitting that the offence of sexual assault qualifies as a “violent offence” under s. 39(1)(a). The Crown is also seeking 12 months probation to follow the custody and supervision order and a two year weapons prohibition order under s. 51 of the YCJA and a DNA order.

4Mr. Balka conceded that the offence of sexual assault provides a gateway to a custody and supervision order under s. 39(1)(a) and s. 42(n); however, he submitted that in the factual circumstances of this case, a probation order would be an appropriate response to hold L.P. accountable for his actions.

L.P.’s Personal Circumstances

5L.P. is currently 17 years of age and at the time of the offence was 15. He does not have any siblings and in 2018 his parents separated and were divorced in September 2020. His mother works for a bank and is involved with corporate and business lending. His father is involved in construction, installing concrete floors. L.P. has a good relationship with both of his parents. L.P.’s maternal grandmother lives in New York, although he and his mother have not visited since COVID began.

6L.P.’s mother indicated in the PSR that whenever L.P. has gotten into trouble at home or in school in the past and there have been consequences, he has learned from the experience and did not repeat the behaviour. As a result of these charges his mother imposed her own “house arrest” rules, which L.P. has complied with. This resulted in his only being outside his home for school or for work. L.P. is employed at Canadian Tire in the sports department and has worked there since June 2021.

7In June 2022, L.P. will graduate from high school. He currently attends Grade 12 at […] Whitby. Prior to attending this high school he attended […] in Oshawa for Grade 9 and 10. His Ontario Student Record indicated as of June 22, 2021, he had completed 22 credits by the end of Grade 11. Truancy is not an issue and his marks in high school are spread out, mainly passes, in the 50s, 60s, and 70s. His most recent credits at the end of Grade 11 were 88 (Media Arts), 83 (Canadian Law), 85 (Photography) and 71 (Physical Education).

8L.P. does not have a youth record or any involvement with the police prior to the charge before the court. L.P. has applied to the New York Film Academy and his future goal is to be involved in writing, directing and acting in movies. He has not applied to any post secondary programs in Ontario.

9L.P. indicated he would abide by any sentence imposed by the Youth Court. He is willing to be involved in community service. He is also prepared to become involved in counselling respecting the charge before the court.

10L.P. advised the probation officer he was shocked when he was charged. He advised he pleaded not guilty but was found guilty. He believed the sex was consensual but acknowledged the complainant said in her evidence that it was not consensual. L.P. told the probation officer he “did not really know what contributed or led up to his sexual offending,” and noted they (referring to H.B. and himself) had different accounts of what happened. He and both of his parents indicated to the probation officer they have not been able to discuss what occurred with each other. L.P. further indicated he was not sure how H.B. has been impacted, but suggested it was likely, “not that much.” However he also indicated he believed victims of sexual assault are “likely traumatized” and may develop “trust issues” as a result.

11When I asked L.P. if he wanted to say anything before I imposed sentence, although he was not required to say anything, he said “I’m sorry for what happened and sorry for all the people I’ve hurt.” He told me he believed he would “become a better person because of this.”

Victim Impact Statement

12H.B. and her mother, K.B., provided Victim Impact Statements (VIS). H.B. described how the sexual assault greatly impacted her, causing her to have nightmares and recurring dreams of the event and how she would wake up in tears. She described not being able to walk home the way she did with L.P. and also not being able to walk home unless someone is with her. She has attended for therapy every two weeks since the incident.

13H.B. described how she had to undergo a sexual assault kit, which was very uncomfortable, having two nurses swab her all over while she lay naked on a table being examined. This made her feel violated. If she thinks about what occurred it makes her feel physically ill. She also described constantly fearing for her security.

14K.B., H.B.’s mother described the significant emotional impact L.P.’s actions had on H.B., causing her to struggle in school, creating anxiety and upset. K.B. worries about H.B.’s safety, is concerned about where H.B. is and has installed a new tracking app on her phone. K.B. described how L.P.’s actions also affected K.B.’s mother and her sisters and their families. It has increased her worry for H.B.’s younger sister and her safety.

Mitigating and Aggravating Circumstances

15L.P. does not have a youth record or any prior involvement with the police and this is a mitigating circumstance. He is a youthful first offender and was only 15 at the time of the commission of the offence. He has a strong supportive relationship with his mother and father, who are very supportive of him.

16L.P. was on release for two years and Mr. Balka indicated his mother put him on a form of “house arrest” while living with her, however; I am aware there was not a release order requiring L.P. to be subject to house arrest. L.P. changed high schools and it would appear that in this final year, Grade 12, his marks have improved. His mother indicated she believed he was more serious about school and had improved his grades. He has specific goals and plans to pursue post secondary school education in film art. He has applied to the New York Film Academy as his grandmother lives in New York but has delayed applying to any postsecondary programs in Ontario because of the uncertainty of how the court process will conclude.

17L.P. has also been working part-time at Canadian Tire since June 2021. He indicated he volunteers at his church but did not indicate what he was doing there. Both the Crown and defence agree that L.P. is a young person of previous good character.

18Sexual assault of a 14 year old young person is a serious offence. Sexual assault covers a broad spectrum of illegal conduct that is sexual in nature and in this case the conduct of L.P. towards H.B. was at the highest level of that spectrum, forced sexual intercourse. In this case the evidence disclosed that L.P., in addition to ignoring H.B. telling him she did not want him to have intercourse with her, repeatedly telling L.P. to stop, he also did not use a condom. In my view this is a further aggravating circumstance. The serious, long-lasting and pervasive damage caused by sexual offences of young people has recently been emphasized in R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, at paras. 74-86.

19A further aggravating circumstance in this case was the fact that L.P. really did not know H.B. as he had only initiated contact with her 5-6 days before he asked H.B. if she would walk home with him, as they had learned they lived close to each other during their Snapchat messages. Their only interaction prior to Monday, March 9, 2020, the date of the offence, was through Snapchat. They both testified during that 5 or 6 day period they may have walked in the halls of their high school (apparently the students referred to this as “laps”) with a group of friends only once or twice, but never with just the two of them. Walking home together after school was the first time they were alone together. L.P. had asked H.B. to come over to his house after school to hang out together but she had told him she could not go to his house because her mom wanted her to go straight home as she had too much homework. L.P. then asked her to just walk him to his house, as it was on her way home, to which she agreed. I found as a fact, based on the totality of the evidence, that L.P. had not discussed with H.B. any intention for he and H.B. to kiss or engage in any sexual activity at L.P.’s house. Even after convincing H.B. to come into his house, purportedly to watch a movie, L.P. did not ask or discuss with H.B. whether she wanted to engage in any type of sexual activity with him. On the whole of the evidence I found that L.P. forced sexual intercourse on H.B. and the H.B. did not consent.

20I found the Snapchat messages from March 9, 2020, demonstrated that there was no plan for H.B. to come to L.P.’s house to hang out and further that they demonstrated there was no prior discussion between H.B. and L.P. about engaging in consensual sexual activity. L.P. also had pre-arranged for two of his friends to come to his house after school and he called them to come over after H.B. left so he could tell them everything that had happened between he and H.B. In my view all of this evidence, conceded by L.P. in cross-examination, leads to the reasonable inference that L.P. had planned to engage in sexual activity with H.B. without discussing it with her, which is an aggravating circumstance on the facts of this case.

21L.P. was entitled to have a trial respecting the charge he faced and he is not required to accept my findings respecting the evidence, however, he is not entitled to claim the mitigating benefit of a guilty plea and acceptance of responsibility that follows a guilty plea. It is clear from the caselaw; however, lack of remorse is not an aggravating circumstance to consider on sentencing and I do not consider it as such, (see R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 68; R. v. Valentini (1999), 132 C.C.C. (3d) 262 (Ont. C.A.), at paras. 80-85). What is acceptable for a sentencing judge to take into account, however, is a young person’s lack of remorse, together with a lack of understanding of the nature and impact of their criminal conduct towards the victim (see R. v. J.F., 2011 ONCA 220, per Rosenberg, J.A., at para. 86 and R. v. M.R., 2014 ONCA 484, at paras. 9-10). This can be considered as an aggravating factor in determining a proportionate and appropriate sentence that will “promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and the community” per s. 38(2)(e)(iii) of the YCJA.

22The Victim Impact Statements reflect that L.P.’s criminal conduct has had a significant impact on H.B., as well as on H.B.’s mother, grandmother and other family members. This is an aggravating circumstance to be considered on sentence. In determining a youth sentence I must take into account under s. 38(3)((b) the harm done to victims and whether it was intentional or reasonably foreseeable. In my view the harm done to H.B. by L.P.’s conduct was at the very least reasonably foreseeable to him, given H.B. repeatedly telling L.P. “no” and to stop what he was doing.

Sentencing Principles Under the YCJA

23Parliament, in enacting the Youth Criminal Justice Act (YCJA), aimed to correct an over-reliance by the justice system on custodial sentences, a practice which evidence showed did not benefit society or the young offender. The YCJA provides that young people who are under 18 when they commit criminal offences are to be held accountable for their actions, but in a manner that is different than the way adults are held accountable for criminal offences. The YCJA takes this approach because it recognizes the diminished moral blameworthiness of young people who commit criminal offences, due to their lower level of maturity: R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3.

24The YCJA carefully details the guiding principles that must be relied on when interpreting provisions within the Act:

s. 3 (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour.

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(i) rehabilitation and reintegration,

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

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

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

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

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

(i) reinforce respect for societal values,

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

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

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

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

25The purpose of sentencing under the YCJA is set out at section 38(1). The purpose of sentencing under section 42 (youth sentences) is to “hold a young person accountable for his or her conduct by imposing just sanctions that have meaningful consequences to the young person and promote his or her rehabilitation and reintegration into society.” The focus of sentencing is to protect society through an attempt to rehabilitate and reintegrate the youth back into the community. As a result of the amendments to the YCJA in 2012, courts can now consider the need for specific deterrence and denunciation in sentencing in youth matters.

26Section 38 of the Act goes on to set out principles and factors that must be considered in fashioning an appropriate sentence. A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 (set out above) and the principles set out in s. 38(2) of the YCJA. Under s. 38(2)(b) any sentence imposed “must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances.”

27Sentences in Youth Court must “be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence,” (see s. 38(2)(c)); and “all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons with particular attention to the circumstances of aboriginal young persons,”(see s. 38(2)(d)). In order to comply with s. 38(2)(c), the sentence must (i) be the least restrictive sentence that is capable of achieving the purpose set out in s. 38(1); (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community,” (see s. 38(2)(e)). Further a youth sentence, subject to s. 38(2)(c), may have the following objectives: (i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences, (see s. 38(2)(f)), which was added to s. 38(2) as a result of the 2012 amendments to the YCJA. General deterrence as a sentencing principle continues to have no place in determining an appropriate youth sentence, even for violent offences. The Supreme Court of Canada directed in R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 33 and 34, that the principle of general deterrence does not apply to youth sentences.

28A Youth Court sentencing judge must consider the following factors in determining the appropriate sentence:

38(3) (a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

29The starting point in any analysis of whether a custodial sentence is an appropriate sentence for a young person is a consideration of s. 39 of the YCJA. Section 39(1) allows a court to consider a custodial sentence in only four circumstances:

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

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

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

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

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

30In my view the gateway to a custodial sentence is open for consideration under s. 39(1)(a) because L.P. has committed what can only be described as a “violent offence.” The definition of “violent offence” was considered by the Supreme Court of Canada in R. v. C.D.; R. v. C.D.K., 2005 SCC 78, [2005] S.C.J. No. 79, at paras. 81-87, where the majority held “violent offences” are those offences were a young person causes, attempts to cause or threatens to cause bodily harm. The definition of "violent offence" is now found in s. 2(1) of the YCJA, which states:

(a) an offence committed by a young person that includes as an element the causing of bodily harm;

(b) an attempt or a threat to commit an offence referred to in paragraph (a); or

(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

31It is my view a sexual assault involving vaginal intercourse amounts to bodily harm, as set out in s. 2(1)(a) of the YCJA. Bodily harm includes both physical harm as well as psychological harm (see R. v. McCraw, [1991] 3 S.C.R. 72, which defined "serious bodily harm" as "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant". Further, in R. v. Friesen, the Supreme Court referred to McCraw at para 56:

This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v. McCraw, [1991] 3 S.C.R. 72"may often be more pervasive and permanent in its effect than any physical harm" (p. 81).

32Despite the above finding, s. 39(2) directs if any of paragraphs in s. 39(1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all reasonable alternatives to custody. I must impose the least restrictive sentence that is proportionate, considering the seriousness of the offences and L.P.’s degree of responsibility. I must impose a sentence that also promotes L.P.’s rehabilitation and re-integration into society. I must keep in mind the goal of the YCJA was to reduce and restrict the use of custody for young persons.

33Section 39(3) of the Act sets out factors to be considered in determining whether there are reasonable alternatives to custody:

(a) the alternatives to custody that are available;

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

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

34In determining whether a non-custodial sentence will meet the objectives of the YCJA, a court must consider whether the sentence is sufficient to hold a young person accountable for the offence. The Court of Appeal has provided guidance as to what it means to hold a young person who offends accountable. In R. v. A.O., 2007 ONCA 144, [2007] O.J. No. 800 (C.A.), at paras. 46-47, Justice Rosenberg held that "accountability in the YCJA is the equivalent of the adult sentencing principle of retribution, reflecting "the moral culpability of the offender, having regard to intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct." Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society. The purpose of accountability in this context would seem to exclude accountability to society in any larger sense or any notion of deterrence (see R. v. A.O., at para. 42).

35Before dealing with whether there are alternatives to custody that are reasonable in all of the circumstances of this case I must first determine whether s. 39(1)(d) has applicability on the facts of this case, in other words, are the aggravating circumstances of this sexual assault so exceptional that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38. The question therefore is whether the facts in this case amount to the type of “exceptional case” contemplated by this section? In R. v. R.E.W., [2006] O.J. No. 265 (C.A.), at para. 31, Rosenberg J.A. explained how s. 39(1)(d) should be interpreted and it is my view the offence committed by L.P. does not meet the requirements of s. 39(1)(d). This in no way minimizes the seriousness of the offences or overlooks the community’s appropriate denunciation of L.P.’s conduct. The facts of this case, however, fail to disclose such exceptionally aggravating circumstances that a custodial sentence is the only proportionate sentence that would hold L.P. accountable.

36One form of custody that is not available on the facts of this case is a deferred custody and supervision order pursuant to s. 42(p), as a result of s. 42(5), which excludes a deferred custody and supervision order for offences where the young person attempts or causes serious bodily harm. Serious bodily harm includes "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant” (see R. v. McCraw, supra and R. v. C.D.; R. v. C.D.K., supra). In a number of the cases provided by Mr. Balka, the Youth Justice imposed a deferred custody and supervision order for sexual assault cases involving sexual intercourse. Recently, in R. v. J.R.S., [2019] O.J. No. 5473, at para. 1, the Ontario Court of Appeal held that in the case of a sexual assault a deferred custody sentence was not an available sentence and was therefore illegal, considering the Supreme Court’s decision in R. v. McCraw referred to above. One of the cases provided by Mr. Balka [1] involved a deferred custody and supervision sentence being imposed, which the Ontario Court of Appeal has now clearly ruled is an illegal sentence under the current legislation. I should note that no Charter constitutional challenge was brought by the defence respecting this prohibition, although it is my view the restriction in s. 42(5)(a) is similar to the conditional sentence provisions for an adult accused under s. 742.1 of the Criminal Code that were struck down by the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478, [2020] O.J. No.3183 (C.A.). As a result, a deferred custody and supervision order is not an available sentence in this case.

Sentence Imposed

37Sentencing is a highly individualized process that is dependent on the unique facts surrounding the offence and offender. No two cases are identical and there are often significant differences between the circumstances of individual cases (see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92). I was provided a number of sentencing cases by both counsel involving youth sentencing cases for sexual assault. [2] I have read each of the cases but do not intend to refer to them in detail, as in some of the cases provided by the Crown the factual circumstances of the sexual assaults were more serious than this case; in some of the cases the youth had pleaded guilty or the sentencing judge had received psychiatric or psychological assessments or s. 34 assessments; in one case the youth was now an adult and would serve a custodial sentence in an adult correctional facility, which the sentencing judge did not believe was a fit and proportionate sentence. The youth sentences imposed and/or upheld on appeal for sexual assault offences were most often custody and supervision sentences of 90 days to 18 months, followed by a period of probation. As I indicated earlier, a deferred custody and supervision sentence is not available for a sexual assault offence because of s. 42(5) of the YCJA. Although the British Columbia Court of Appeal in R. v. A.A., 2013 BCCA 202 substituted a deferred custody and supervision sentence for a 120 day custody and supervision order, without considering the two Supreme Court cases referred to in R. v. J.R.S., supra.

38Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 12 explained:

…The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

39I have already found that s. 39(1)(a) is applicable to the facts of this incident and as a result, there is a gateway available to impose a custodial sentence. In my view s. 39(1)(b), (c) and (d) are not applicable in this case. I recognize that it does not automatically follow that a custodial sentence must be imposed when there is a gateway available pursuant to s. 39(1)(a) to impose a custodial sentence. As I have indicated above, s. 39(2) provides that a youth court shall not impose a custodial sentence under s. 42 unless the court has considered all alternatives to custody and determined if there are reasonable alternatives or combination of alternatives that are in accordance with the purpose and principles set out in s. 38 (see also R. v. Priest, [1996] O.J. No. 3369 (C.A.), at paras. 17-22, and other Ontario Court of Appeal decisions dealing with adult youthful first offenders).

40L.P. is a youthful first offender and his PSR is relatively positive. The only negative aspect in the PSR dealt with L.P.’s understanding and insight into the impact that his conduct had on H.B. and her family. When he was asked by the probation officer about the impact on H.B., he indicated that he was not sure how H.B. was impacted but he suggested it was likely “not that much” because she ended up getting back together with her ex-boyfriend a couple of months after the offence date. L.P. did indicate that he believed the victims of sexual assault were “likely ‘traumatized’ and may develop ‘trust issues’ because of the victimization. Another observation from the PSR is that L.P. has not discussed what occurred between he and H.B. with either of his parents and as a result, they are in the dark as to exactly what happened. These beliefs by L.P. reflect in my view a lack of empathy towards H.B., which is concerning. In R. v. M.R., 2014 ONCA 484, the Ontario Court of Appeal held:

It is permissible for a sentencing judge to take into account lack of remorse, together with an offender's lack of understanding of his or her involvement in the offence, as factors demonstrating that the young person has not accepted responsibility for his actions: R. v. J.F., 2011 ONCA 220, per Rosenberg J.A., at para. 86.

41L.P.’s lack of remorse and lack of awareness and understanding respecting the harm he inflicted by his criminal conduct towards H.B. is an important consideration in crafting an appropriate youth sentence that gives effect to s. 38(2)(e)(iii) of the YCJA. This section requires that a sentence imposed on a young person "must ... promote a sense of responsibility in the young person, and an acknowledgment of the harm done to victims and the community." H.B. provided a VIS where she described the continued emotional and psychological harm and impact of L.P.’s sexual assault on her. K.B., H.B.’s mother, also provided a VIS, which reflects how L.P.’s offence impacted her and her extended family.

42As I indicated above, the purpose of sentencing under the YCJA is to hold a young person accountable for the offence they committed through the imposition of just sanctions that have meaningful consequences and that promote the young person’s rehabilitation and reintegration into society, contributing to the long-term protection of the public. The fact that L.P. does not have any great awareness or understanding or insight into the seriousness of his conduct and the significant impact it had on H.B., particularly having regard to the factual circumstances of this case where L.P. had only very recently (4-5 days before the incident) begun conversing with H.B. by social media, then had full sexual intercourse with her when she was telling him to stop what he was doing, in my view raises serious concerns about L.P.’s attitudes, beliefs and behaviour in terms of future intimate relationships he might have.

43As discussed in Friesen, supra, in para. 76, the sentences imposed must be commensurate with the gravity of sexual offences against children and courts must recognize and give effect to “ (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences.” The Supreme Court has emphasized that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm varies from case to case. L.P. is wholly responsible for the commission of this offence. It is my view L.P.’s sexual assault of H.B. was a violent offence, which caused “serious bodily harm” to her, as defined by s. 2 of the YCJA and the caselaw.

44Some of the cases provided by Mr. Balka were from other Provincial Courts where the youth sentencing court imposed a period of probation with conditions as an appropriate sentence; however, in those cases there were considerations which were not present in the facts and circumstances of L.P.’s sentencing. One of the cases, R. v. C.Z., [2021] B.C.J. No 291 (BCPC), the sentencing judge indicated he only agreed to impose a 24 month probation sentence because it was a joint recommendation by the Crown and defence. In R. v. A.W., [2021] A.J. 32 (APC), at paras. 75-77, the young person pleaded guilty and acknowledged the harm he caused, a s. 34 Report was prepared. The youth had a troubled upbringing, he himself was a victim of sexual abuse and because of his age when the sentence was imposed he would have served a custodial sentence in an adult jail. It was only as a result of the final two considerations that the sentencing judge found a non-custodial sentence was justified.

45In my view a probationary term, as submitted by Mr. Balka, falls far short of conveying the extremely serious nature of L.P.’s criminal behaviour. Further, in my view the degree of responsibility of L.P. for the commission of this offence rests entirely with him. As discussed above, the amendments in 2012 to the YCJA mandated sentencing judges to consider specific deterrence and denunciation in sentencing young persons pursuant to s. 38(2)(f). It is also my opinion that L.P.’s lack of insight into his conduct and its impact on H.B. increases the importance of specific deterrence and denunciation and the imposition of only a probationary term will not properly address those sentencing principles. Further, it is my view that probation alone would not hold L.P. accountable for his criminal conduct through measures that are proportionate to the seriousness of the offence and L.P.’s degree of responsibility. The Crown’s position on sentence in my view is reasonable and fair considering the totality of the facts and circumstances surrounding L.P.’s personal circumstances, the serious impact of his criminal conduct to H.B., L.P.’s moral blameworthiness respecting his criminal conduct, and the seriousness of the offence.

46In all of the circumstances of this case it is my view that a six month custody and supervision sentence (four months in open custody and two months community supervision) followed by 18 months of probation with conditions, is the proportionate and appropriate sentence to be imposed. It is my view this will properly meet the principles and objectives of the YCJA. Pursuant to s. 42(14), no youth sentence shall be in force longer than two years or any combination of sentences imposed at the same time shall be longer than two years. The two sentences imposed pursuant to ss. 42(k) and 42(n) total 24 months or 2 years.

47In the PSR, Sean Hill, the probation officer, indicates that if an open custody sentence is imposed, McKinnon House in Oshawa, which has a social worker who could facilitate clinical programming, would likely be where L.P. will be placed. It is my view that programs addressing impulse control, decision-making, victim impact, healthy relationships, sexual offence specific assessment and counselling are essential to ensure L.P.’s rehabilitation and reintegration into society and reduce his risk of re-offending. I adjourned L.P.’s sentencing to allow him to complete his final semester of courses in the high school he was attending. I would hope that the clinical programming discussed by Mr. Hill would be commenced while L.P. is serving the open custody and community supervision portions of his custody and supervision sentence.

48Once L.P. completes the custody and supervision sentence he will be subject to the conditions I am now outlining in his 18 month probation order.

a) Keep the peace and be of good behaviour;

b) Report to a youth probation worker within 3 working days of completing his custody and supervision order and thereafter as directed by the youth worker;

c) Reside at an address approved of by his youth worker and not change that address without the youth worker’s permission;

d) He is not to communicate or contact H.B. or any member of her family, directly or indirectly, either by physical, telephone or electronic (social media) means;

e) He is not to be within 100 metres of any place he knows H.B. or any member of her family lives, goes to school, works, frequently or he knows them to be;

f) He is to attend and actively participate in any assessment, treatment or counselling recommended by his youth worker including, but not limited to: impulse control, decision-making, victim impact, healthy relationships, sexual offence specific assessment and counselling or any other programs deemed appropriate by his youth worker;

g) Sign any release of information forms necessary to permit his youth worker to confirm his completion of any assessment, treatment or counselling he is engaged in;

h) Complete 50 hours of community service work to be completed at a rate determined by his youth worker but to be finally completed within 12 months of the commencement of the probation term.

49I am ordering that you provide a sample of your DNA today by 4:30 pm.

50I am ordering a weapon’s prohibition order pursuant to s. 51 of the YCJA for 2 years.

Released: June 16, 2022 Signed: Justice Peter C. West

1R. v. T.T., 2020 ONCJ 633 (Harris, D.A.). Justice Harris in a recent decision of R. v. J.D., [2021] O.J. No. 1762 (OCJ) imposed a sentence of probation in a case where the young person pleaded guilty, a psychological report was prepared, he determined a deferred custody and supervision order was not available citing R. v. C.D. and R. v. McCraw but imposed house arrest for six months, as a term of probation, followed by curfew for the next six months.

2Crown: R. v. M.R., 2014 ONCA 484; R. v. L. (J.), 2010 ONCJ 453 (Hackett); R. v. A. (D.), 2011 ONCJ 748 (Feldman); R. v. A. (J.), 2012 ONCJ (De Filippis); R. v. J.R.S., 2019 ONCA 852 and R. v. R.S., 2022 ONCA 123 and R. v. M.M., [2021] N.S.J. No. 418 (NSPC). Defence: R. v. T.T., 2019 ONCJ 633 (Harris); R. v. J.D., [2021] O.J. No. 1762 (OCJ); R. v. A.W., [2021] A.J. No. 32 (AJPC); R. v. B.T.L., [2020] B.C.J. No. 1592 (BCPC) and R. v. C.Z., [2021] B.C.J. No. 291 (BCPC).