ONTARIO YOUTH COURT OF JUSTICE
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IDENTITY OF YOUNG PERSON NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.
The court hearing this matter directs that the following notice be attached to the file:
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
A.P. (A Young Person)
REASONS FOR SENTENCE
Guilty Pleas entered and Submissions made on 23 March 2026
Before Justice C.A. Brannagan
Mr. J. Park counsel for the Crown
Mr. R. Nanni counsel for the Young Person
C.A. Brannagan J.:
OVERVIEW
- A.P., a Young Person under the Youth Criminal Justice Act (YCJA), pleaded guilty on March 23, 2026, to one count of voyeurism and one count of distributing an intimate image, contrary to ss. 162(1)(b) and 162.1(1) of the Criminal Code. The Crown elected to proceed summarily on both counts. These are my reasons for sentence.
FACTS
The Crown filed an Agreed Statement of Facts (ASF), which was made Exhibit #1 on the hearing. A summary follows.
On October 9, 2024, A.P. and E.C., both students, engaged in consensual sexual activity in a wooded area behind their school. Without E.C.’s knowledge or consent, A.P. recorded a five‑second video of the sexual activity on his cell phone.
The following day, he showed the video to E.C.’s ex‑boyfriend after being confronted about that sexual encounter. When she found out, E.C. reported the matter to school staff the next morning.
The school principal seized A.P.’s phone, provided it to police, and a search warrant later confirmed the video’s presence on his phone.
CIRCUMSTANCES OF THE YOUNG PERSON
A.P. is 16 years of age. He was 14 at the time of these offences.
His lawyer, Mr. Nanni, filed a Book of Exhibits on his client’s behalf. It included: a Report from Social Worker Lee-Anne Wine; letters of support from A.P.’s mother, father, and his brother; and an apology letter to E.C., written by A.P.
Ms. Wine reports that A.P., diagnosed with autism in grade 6, has struggled with emotional regulation, impulsivity, and social‑relational challenges, and has been influenced by family conflict and sibling dynamics. He completed seven therapy sessions in 2025, actively engaging in psychoeducation on consent, privacy, and the legal implications of voyeurism and intimate‑image offences. She notes meaningful progress, increased insight, and recommends continued counselling.
A.P.’s parents expressed shock and disappointment in their son, noting this conduct is out of character for him. They imposed strict consequences – including restricting his freedom, removal of internet access, monitoring measures, and tracking systems – all of which have affected A.P.’s daily life, including his social relations and the family dynamics. They also highlighted his remorse, positive qualities, and their commitment to supporting his rehabilitation.
A.P.’s brother describes him as a positive and well-regarded student and hopes that his brother can move forward from this incident.
In his apology to E.C., A.P. expressed remorse for violating her trust and privacy, acknowledging the harm he has caused her, and committed to never repeating such behaviour in the future.
VICTIM IMPACT STATEMENT (VIS)
Section 722 of the Criminal Code requires the court to consider the harm suffered by victims of crime and the impact of the offence on victims through victim impact statements. The VIS is the court’s opportunity to hear directly from victims about the impacts, losses, and harms that the offender’s conduct has caused them.
E.C. completed a VIS, filed as Exhibit #2; it was read into the record by Mr. Park.
In her VIS, E.C. described significant emotional and psychological harm, including feelings of violation, fear about the video’s circulation, social isolation, and difficulty attending school. She reports lasting impacts on her trust and sense of safety and worries that this incident will define her high school years. There is no doubt that the impact on her has been substantial and enduring.
THE POSITIONS OF THE PARTIES
The Crown seeks 18 months’ probation, under s. 42(1)(k) of the YCJA, with reporting, counselling, and no‑contact/non‑attendance terms, submitting that probation is necessary to support rehabilitation and ensure victim safety. Mr. Park argues that a discharge – absolute or conditional – cannot include the rehabilitative conditions sought. He argues that A.P.’s conduct involved a degree of planning that heightens his responsibility.
Defence emphasizes A.P.’s youth, his autism‑related impulsivity, remorse, early counselling, and collateral consequences including expulsion from school and family‑imposed restrictions. Mr. Nanni argues the offences fall at the lower end of severity and were impulsive rather than predatory. Defence seeks an absolute discharge with a 12‑month peace bond, or alternatively a conditional discharge.
THE APPLICABLE LAW
The Offences before the Court
Voyeurism, s. 162(1)(b)
In R. v. Jarvis, 2019 SCC 10, the Supreme Court of Canada found that Parliament’s intent in enacting the voyeurism offence was to protect individuals’ privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies: para. 48.
A few years later, in R. v. Downes, 2023 SCC 6, the Court confirmed that “[m]ost sex crimes, including voyeurism, are committed by men, while the victims are usually women and children”: para. 27. Voyeurism is therefore a profoundly gender-based sex crime.
The Court further observed that “[v]oyeurism is thus both a sexual and a privacy-based offence. Section 162(1) is intended to deal with both these related harms: behaviour that violates sexual integrity, and behaviour that breaches privacy”: at para. 28 (italics in original).
Jarvis and Downes confirm that voyeurism and intimate-image offences protect privacy and sexual integrity, particularly in the digital context. These offences can cause significant emotional and psychological harm even when recordings are brief or not widely distributed.
Distribute Intimate Images, s. 162.1(1)
The distribution of intimate images is a relatively new offence, having come into effect as part of Bill C-13, Protecting Canadians from Online Crime, S.C. 2014, c. 31. It was enacted in 2014 and proclaimed into force on March 9, 2015. The Bill formed part of the federal government’s initiative against cyber-bullying and sought to address the use of technology as a tool of harassment and sexual exploitation.
As with the offence of voyeurism and other types of sexual offences, the s. 162.1 offence aims to protect personal autonomy and the sexual integrity of the person: R. v. Walsh, 2021 ONCA 43, at para. 70, citing to Jarvis, at para. 122.
The harm of the offence is the non-consensual sharing of an intimate image, in which the victim’s reasonable expectation of privacy is violated: Walsh, at para. 67; Jarvis, at para. 118.
Purpose and Principles of Sentencing under the YCJA
The YCJA is a discrete criminal justice system for young persons. It is separate from that of adults and is based on the principle of diminished moral blameworthiness: YCJA, s. 3(1)(b).
The YCJA requires that youth sentences be proportionate, promote rehabilitation and reintegration, reflect diminished moral blameworthiness, and use the least restrictive measures capable of achieving accountability (ss. 3, 38).
Conditions may be imposed only if they are necessary, reasonable to comply with, and they cannot be imposed as substitutes for child protection, mental‑health or other social interventions (s. 38(2)(e.1)).
Mitigating and Aggravating Circumstances
The mitigating and aggravating circumstances relating to the young person or the offence are relevant to crafting a fit and appropriate sentence: s. 38(3).
For A.P., I find the following factors to be aggravating:
i. He abused a position of trust in relation to E.C., having regard to the factual circumstances in which these offences unfolded, including the violation of trust that existed between the two of them as friends.
ii. A.P.’s actions had and continue to have a significant impact on E.C..
iii. Despite the claim that A.P.’s decision to record the sexual activity was impulsive, he nevertheless kept the video, rather than deleting it, after he had time to reflect on what he had done.
iv. To Defence counsel’s assertion that I should not “double count” harm across the two offences, I find that they are separate delicts that seek to address distinct harms, and the combination of the two offences together enhances the seriousness of the crimes, including their impact upon E.C.
- Some seriously aggravating factors that appear in many cases are not present in this case. Their absence is not mitigating; it only shows that these aggravating factors are not engaged on this record. They include:
i. The video was very brief and did not capture any identifiable features of either A.P. or E.C.
ii. There is no evidence before me that the intimate video was distributed outside of A.P. having shown it to E.C.’s ex-boyfriend.
iii. This is not a case of “revenge porn” in which A.P. deliberately sought to harm E.C. or to exact retribution for some perceived wrongdoing.
- I find the following factors to be mitigating in this case:
i. A.P. was very young, 14 years old, when he committed the offences. He is now 16 years of age.
ii. He is a first-time offender, with no previous findings of guilt. A.P. appears to have had no other involvement with the criminal justice system beyond this reckless lapse in judgement.
iii. He has significant support among his family members.
iv. From the letters that have been filed on his behalf, A.P. was completely upfront about his wrongdoing with his family and social worker. This is a strong indication that he has true insight into the wrongfulness of his actions and speaks to his rehabilitative potential.
v. A.P. has faced significant repercussions and discipline from his parents; he continues to live under meaningful supervision and exacting restrictions.
vi. He has successfully completed extensive relevant counselling.
vii. The apology letter prepared by A.P. and the comments he made in court demonstrate his genuine remorse.
viii. A.P.’s remorse is further demonstrated by his guilty plea. He spared E.C. from having to testify about what would have clearly been difficult subject matter. It is especially significant that he chose to give up his right to a trial and to plead guilty in the face of potentially robust Charter arguments.
Discharges versus Probation under the YCJA
- The central issue is whether a discharge or a probation order is the appropriate disposition for A.P. The answer turns on the legal distinction between these two youth sentences.
Counsel’s Positions
Both lawyers relied on Duncan J.’s decision of R. v. R.P., 2004 ONCJ 190.
The Crown cites R.P. to emphasize that a conditional discharge cannot carry the probation-type conditions it seeks in this case (e.g., counselling as directed, sign releases, etc.). Mr. Park rests this submission on the basis that s. 42(11) of the YCJA expressly prohibits imposing conditions found in ss. 55 and 56 (i.e., mandatory and discretionary terms for probation orders) when the sentence is a conditional discharge. On this basis, the Crown submits that the conditions it considers necessary to advance the sentencing purpose and principles of the YCJA cannot legally attach to a conditional discharge.
In essence, the Crown relies upon R.P. to stress the legal limits of conditional discharges under the YCJA, arguing that the court cannot impose key protective and rehabilitative conditions unless the sentence is a probation order or another option that permits imposition of the terms sought.
Mr. Nanni submits that, if the court disagrees that an absolute discharge is appropriate, a conditional discharge would be preferable to a probation order. He does not directly dispute the authority of R.P. but reframes the statutory scheme, pointing to the fact that s. 42(2)(c) allows the court to discharge his client “on any conditions imposed by the court” and that such conditions, as the court deems necessary to achieve rehabilitation and reintegration, could be made consistent with s. 38(2)(e.1). In other words, if a condition is necessary for rehabilitation and reintegration, the court can impose it under a conditional discharge.
Mr. Nanni also argues that qualitative differences between the youth sentences at issue here – discharges and probation – can be found in the youth record access periods under s. 119 of the YCJA: one-year from the date of disposition for an absolute discharge (s. 119(2)(e)); three-years from the date of the finding of guilt for a conditional discharge (s. 119(2)(f)); and three-years after the end of the probation term for that disposition (s. 119(2)(g)).
Discharges versus Probation in R. v. R.P., 2004 ONCJ 190
In R.P., Duncan J. considered the statutory regime for young persons under the YCJA (and its predecessor, the Young Offenders Act) and contrasted them to the sentencing framework for adults: paras. 4-6.
Concerning the dispositions of probation (s. 42(2)(k)) and conditional discharges (s. 42(2)(c)), His Honour concluded that there is “little to choose” between them. He reasoned that both dispositions involve supervision, enforceable conditions, and potential prosecution for breach, and that “there is no distinction between the two sanctions”. In his view, the meaningful features of each sentence lie in the conditions imposed, rather than the vehicle through which they are employed. He also emphasised that, under the YCJA, the record-access periods carry minimal deterrent or public-interest value and therefore do not create a meaningful distinction between the two dispositions: paras. 15-17.
Conditional Discharges are Distinct from Probation
Courts have recently taken a more nuanced view. In R. v. J.E., [2023] O.J. No. 5051 (Ct. Jus.), Alder J. rejected the analysis in R.P. and held that “there is a difference between a conditional discharge and probation that must be considered when determining the appropriate sentence”: para. 26.
Alder J. went on to note that when a youth receives a discharge, they are placed on conditions, not probation, which reflects a less serious and less stigmatizing response than a probation order. This difference can affect how meaningful and proportionate the sentence feels to the young person, given the nature of their offence and their level of responsibility. The length of the access period is also relevant to proportionality and meaningfulness of the sentence. For very serious offences with high harm and high responsibility, a longer access period better reflects the gravity of the conduct and aligns with the YCJA principles of accountability, public protection, and crime prevention: para. 27.
The Nova Scotia Court of Appeal in R. v. P.J.S., 2008 NSCA 111, held that the “main difference” between a conditional discharge and probation is the length of the youth record’s accessibility period, which is significantly shorter for a discharge and cannot be extended by later offences. By contrast, a probation disposition can extend the access period and can even convert a youth record into an adult record under s. 119(9). This is a meaningful legal distinction.
I find the reasoning in P.J.S. and J.E. to be persuasive, providing the most principled accounts of the qualitative distinctions between these dispositions, and I adopt them.
To summarize, a conditional discharge under the YCJA is a meaningfully distinct sentence from a probation order, for the following reasons:1
i. It is among the lowest-level dispositions available under the YCJA, following a reprimand and an absolute discharge. It therefore carries less stigma, and reflects a fundamentally lower level of judicial intervention.
ii. It has no mandatory terms or conditions attaching to it.
iii. It cannot be combined with a probation order, intensive support and supervision program (ISSP), or non-residential programming.
iv. The record access period is shorter, and it cannot be extended by any later offence, youth or adult.
v. The youth record stemming from a conditional discharge can never become part of a future adult record, whereas a probation order has the potential to form part of an adult criminal record.
In short, the conditional discharge is a “clean slate” sentence, whereas a probation order is a “trackable” youth sentence. Discharges protect youth from long-term consequences, whereas probation is designed to remain visible if the youth continues to offend.
In my view, these are the relevant legal distinctions that animate the proper sentencing analysis in this case.
SENTENCING DISPOSITION
Given the gravity of the offences committed by A.P., balanced against his strong rehabilitative progress, I find that an absolute discharge would be insufficient, while probation would impose potentially disproportionate long‑term consequences.
I conclude that a conditional discharge with an 18‑month term of conditions strikes the appropriate balance in this case, supporting A.P.’s ongoing rehabilitation while safeguarding the long‑term protection of the public.
A.P. is discharged conditionally. In light of s. 38(2)(e.1), I deem the following conditions necessary for him to succeed in his rehabilitation and reintegration:
i. Report to and be supervised by the provincial director, as and when directed.
ii. Take any counselling that is directed by the provincial director, and complete that counselling to the director’s satisfaction.
iii. Sign releases to permit the provincial director to monitor enrollment in, attendance at, and completion of any counselling that is so directed.
iv. Not have any contact or communication, directly or indirectly, through any physical, electronic or other means, with E.C. or any member of her immediate family.
v. Not attend within 100 meters of any place where E.C., or any member of her immediate family, is known to live, work, study, worship, frequent, or otherwise known to be.
- Born on […], 2009, A.P. will complete his 18‑month sentence on or about October 24, 2027, shortly before turning 18. His youth record will expire some 17 months later. Collectively, these milestones underscore his ongoing capacity for growth and rehabilitation, and his potential to transition successfully into adulthood as a pro‑social, contributing member of society.
Released: 24 April 2026
Signed: Justice C.A. Brannagan
APPENDIX
| Conditional discharge Section 42(2)(c) | Probation Order Section 42(2)(k) | |
|---|---|---|
| Conditions | “…any conditions imposed by the court in accordance with para. 38(2)(e.1)” | “…place the young person on probation in accordance with sections 55 and 56” |
| Duration | Maximum 2 years | Maximum 2 years |
| Mandatory Terms | No | Yes: s. 55(1) |
| Discretionary Terms | Yes: in accordance with s. 38(2)(e.1) | Yes: in accordance with s. 38(2)(e.1), and standard terms included at s. 55(2)(a) through (i) |
| Reporting Supervision | Yes: s. 42(2)(c) | Yes: s. 55(2)(a) |
| Combined with Probation Order | No: s. 42(11) | Yes: s. 55(1) |
| Combined with Intensive Support and Supervision Program (ISSP) | No: s. 42(11) | Yes: s. 55(2) |
| Combined with Non-Residential Program | No: s. 42(11) | Yes: s. 55(2) |
| Record Access Period | Ends 3 years after the youth is found guilty: s. 119(2)(f) | Ends 3 years after the youth sentence imposed in respect of the offence has been completed: s. 119(2)(g) |
| Subsequent Summary Conviction Offence as a Youth | Old retention period is not extended. | Retention extended by later of 3 years after original retention date or 3 years after sentence for subsequent offence completed: s. 119(2)(i) |
| Subsequent Indictable Offence as a Youth | Old retention period is not extended. | Retention extended by 5 years after sentence for subsequent offence completed: s. 119(2)(j) |
| Subsequent Conviction as an Adult | Old retention period is not extended. | Indefinite retention if convicted as an adult during the YCJA retention period: s. 119(9). |
Legal Distinctions between Conditional Discharge & Probation under YCJA