WARNING
The court hearing this matter directs that the following notice 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:
Identity of offender not to be published. —(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.
Identity of victim or witness not to be published.— (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.
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:
- Offences.— (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . 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.
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 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(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 victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court File and Parties
COURT FILE No.: 0611-998-21-Y6 DATE: January 4, 2024
ONTARIO COURT OF JUSTICE Central West Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
h.w. ( a Young Person )
Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on February 21, 22, and 24, March 14, and November 10, 2023 Reasons released on January 4, 2024
Counsel: Mr. Ayboub Ansari................................................................................................ for the Crown Mr. Richard Allman.................................................................................. for the Young Person
SCHWARZL, J.:
REASONS FOR SENTENCE
1.0: INTRODUCTION
1Following a trial, I found HW guilty of sexually assaulting EL. A sentencing hearing took place on November 10, 2023.
2What follows are my reasons for sentence.
2.0: CIRCUMSTANCES OF THE OFFENCE
3The offender and the victim were neighbours. Between June and December 2020, they were in a dating relationship. A few months after breaking up the victim went to the offender’s house during lunch on a school day. While they were alone in the house, the offender kissed the victim, digitally penetrated, and then had intercourse with her, all of which was against her will. At the time of the assault, the victim suffered injuries including vaginal bleeding and soreness.
3.0: CIRCUMSTANCES OF THE OFFENDER
4At the time of the offence, HW was 14 years old. When he was sentenced, the offender was 17 years old.
5He is a first-time offender.
6The Pre-Sentence Report (PSR) indicates that the offender is the eldest of two children. He lives with his parents and brother. Neither parent expressed any concern about HW’s prior behaviour. He told the author of the report that he would like to participate in counselling to process his experiences in the justice system.
7The offender is in high school and expects to graduate in June, 2024. As a result of this offence, he was suspended for twenty-seven days.
8HW has good prospects to learn a trade and to obtain employment as an adult.
9The PSR opines that the offender is an appropriate candidate for a community-based sentence.
10In addition to the PSR, a Psychological Assessment Report (PAR) was prepared by Dr. Wong, a clinical and forensic psychologist. The following are some of the relevant findings of the PAR:
(a) The offender vehemently denies any wrongdoing and that the sexual activity was consensual;
(b) The offender was raised in a stable and caring family environment;
(c) The offender has, and maintains, positive peer relationships;
(d) The offender falls within the average range of cognitive functioning and aggression; and
(e) The offender was assessed as a low risk for sexual recidivism;
4.0: VICTIM IMPACT
11EL was 15 when this offence occurred. She is presently 18 years old.
12The impact on the victim was profound. She described the effects of the offender’s actions as causing her life to be “a living nightmare that I cannot wake up from.” She lives in perpetual state of fear, isolation, and anxiety. Many of her relationships with other people have been damaged. She struggles go to school or work. She has been diagnosed with post traumatic stress disorder (PTSD) and her life has been altered for the worse by this offence.
5.0: POSITIONS OF THE PARTIES
5.1: The Defence
13The defence submits that while this crime meets the definition of a “violent offence” within the meaning of section 39(1)(a) of the Youth Criminal Justice Act (YCJA) this offence was “not a rape in the face of an explicit “no”, but rather failure to take reasonable steps.” They submit that in this case there were no overt acts of violence, threats, or extortion but only the offender’s failure to take the necessary legal steps in face of the victim’s acquiescence.
14The defence further submits that in the circumstances of this offence, there was no power imbalance between offender and victim: they were nearly the same age, exerted no control or undue influence over one another, and they were well known to each other.
15Counsel on behalf of the offender submitted that in the totality of the circumstances of this offender and of this offence, that a period of significant probation is appropriate given the direction found in sections 38 and 39 of the YCJA that the court must impose the least restrictive sentence that can achieve the sentencing goals and principles involving young offenders.
16In the alternative, the defence submits that a deferred custody and supervision order may be a reasonable disposition if I were to find that probation is insufficient to meet the applicable sentencing principles. When suggesting the possibility of a deferred custody and supervision order, the defence relied on the cases of R. v. T.T. , [2020] O.J. No. 5912 (OCJ) at paragraphs 29 to 38, and R. v. L.T. , 2019 ONCA 535 wherein the Ontario Court of Appeal upheld a deferred custody and supervision order where the young person forced both oral sex and intercourse.
5.2: The Prosecution
17The prosecution submits that given my findings of fact at trial, the absence of remorse by the young person, his high degree of responsibility, the need to impose a sentence proportionate to his level of responsibility, and the impact on EL, that a custodial disposition is warranted, whereas an order of probation alone is not justified in the circumstances. The Crown recommended a custody and supervision order of 18 months followed by probation.
18The prosecution submits that a deferred custody and supervision order is not available because such a disposition is precluded by section 42(5)(a) of the YCJA where the court finds serious bodily harm was caused or attempted, which they say happened here.
6.0: ANALYSIS
6.1: Does this case involve “serious bodily harm” so as to preclude a deferred custody and supervision order?
19I find that this case involves serious bodily harm thereby precluding the availability of a deferred custody and supervision order pursuant to section 42(5)(a) of the YCJA.
20The Supreme Court of Canada held in R. v. McGraw , [1991] 3 S.C.R. 72 that serious bodily harm means “any hurt or injury that interferes in a grave or substantial way with the physical integrity or well-being of the complainant.” In R. v. J.R.S., 2019 ONCA 852 the Ontario Court of Appeal held that where there has been life-altering and profound impact on the victim, then the bodily harm in that case was found to be serious. Such is the case before me.
21The victim has suffered PTSD and the effects of this crime have changed her life for the worse. I am not persuaded that the cases relied on by the defence in this case ought to be followed. On the facts of this case, a deferred custody and supervision order is not available to this offender: R. v. I.A ., [2022] O.J. No. 4740 (OCJ) at para 27 - 32; R. v. L.P. , [2022] O.J. No. 3940 (OCJ); R. v. R.S. , 2022 ONCA 123 at para 5 and 6.
6.2: Mitigating, Aggravating, and Other Factors on Sentence
22There are many mitigating factors present in this case. They include the following:
(a) The offender was only 14 at the time of this offence;
(b) He has no prior record;
(c) He has not violated his terms of bail pending trial and sentence;
(d) He has strong family support;
(e) He has good prospects for completing school and for finding employment;
(f) He is at a low risk of sexual recidivism; and
(g) The offence was a discrete event, occurring once with one victim;
23Where there is a demonstration of remorse or acceptance of responsibility, this is a mitigating factor on sentence. Since the offender has not acknowledged any wrongdoing in this case, there is no mitigation of sentence for this circumstance. On the other hand, the absence of remorse is not an aggravating factor.
24There are also significant aggravating features to this case that include the following:
(a) The offence was highly intrusive and fundamentally a very violent offence. The idea that proceeding with sexual activity in the face of acquiescence is somehow less culpable than overt acts of violence is to misunderstand the essence of the offence which is the invasive and unwanted penetration of one’s body;
(b) The offence involved both digital and penile penetration;
(c) The offence caused meaningful physical injury to the victim at the time of its commission;
(d) The offence caused significant and long-lasting psychological consequences to the victim; and
(e) The offender appears to have little understanding of the impact of his behaviour on the victim.
25While the absence of remorse is neither mitigating nor aggravating, it is an important factor in determining an appropriate and proportionate sentence because section 38(2)(e)(ii) of the YCJA requires the court to promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and the community: R. v. L.P. , supra; R. v. I.A. , supra.
6.2: Discussion and Sentence
26The fact that deferred custody is not available in cases of penetrative sexual assault does not mean that custody must necessarily follow. That said, I agree with Monahan, J when he stated in R. v. I.A. , supra at paragraph 26 that “the weight of judicial authority in this province for serious sex assaults by a youth have almost invariably imposed a custodial sentence.”
27There is no doubt this was a serious sexual assault that caused serious bodily harm. As such, the sentence must promote a sense of responsibility that the offender lacks and to acknowledge the grave harm done to the victim. In this case a probation order without more cannot do so. I find that a non-custodial disposition would also not adequately address the needs of rehabilitation, reintegration, and accountability. Balancing all of the relevant circumstances of this offender and this offence along with the fundamental principles involved in sentencing young offenders, I make the following orders on sentence.
28There will be a custody and supervision order of nine months being six months in custody followed by three months of supervision which is the least restrictive disposition in the circumstances. While subject to the supervision portion of this order, the offender will not communicate or associate with the victim or her family, nor will he be with 25 metres of her home, school, or any other place he knows EL to be present or associated with.
29Following the custody and supervision order, the offender will be placed on probation for fifteen months. Counsel will address me as to terms of probation, giving heed to the recommendations in both the PSR and the PAR.
30There will be a DNA order, to be executed today at the courthouse. Finally, there will be a firearms prohibition order. I will hear from counsel as to the length of the firearms prohibition order.
Richard H.K. Schwarzl,
Justice of the Ontario Court of Justice