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.

(2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

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138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records)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

Court File and Parties

Court of Appeal for Ontario

Date: 20220214 Docket: C69889

Judges: Miller, Trotter and Zarnett JJ.A.

Between: Her Majesty the Queen Respondent

And: R.S. Appellant

Counsel: R.S., acting in person Breanna Vandebeek, appearing as duty counsel Nicole Rivers, for the respondent

Heard: February 7, 2022 by videoconference

On appeal from the disposition imposed on August 17, 2021 by Justice Larry B. O’Brien of the Ontario Court of Justice.

Reasons for Decision

[1] After a trial, R.S. was found guilty of two counts of sexual assault. He was sentenced to an 18-month custody and supervision order, comprised of 12 months in open custody, followed by six months of custody and supervision. He was also made subject to a 12-month probation order. R.S. appeals this disposition.

[2] R.S. was 14-15 years old at the time of the offences. Both victims were his former intimate partners. With respect to the victim, M.J., in the course of consensual vaginal intercourse, R.S. penetrated her anally without her consent. This caused her to jump out of the bed. When she returned, R.S. engaged in another brief bout of anal intercourse. M.J. was 15 years old at the time.

[3] There were three incidents in relation to the other victim, E.H. On the first occasion, they were at a movie theatre. R.S. touched E.H. between her legs without her consent. He then forced her hand down his pants, onto his penis. During the second incident, after consensual kissing, R.S. forced oral sex on E.H. and then made her perform oral sex on him. R.S. then forced his penis with a condom into E.H.’s anus, causing her pain and to jump off the bed. Once she returned, he did the same thing again. On the third occasion, R.S. had forced vaginal intercourse with E.H.; he stopped when he noticed that she was bleeding. E.H. was 14 at the time.

[4] R.S. advanced three grounds of appeal against his sentence.

[5] First, R.S. submits that the youth court justice erred in finding that a deferred custody and supervision order was not available in the circumstances. Section 42(5) of the Youth Criminal Justice Act , S.C. 2002, c. 1 provides that a deferred custody and supervision order is available if “the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm.” The Crown and defence counsel at trial agreed that this disposition was not available. However, it is unclear whether they agreed that a deferred custody and supervision order is never available in the context of a sexual assault, or whether they were in agreement that it was not available on the facts as found by the youth justice court judge. Duty counsel also submits that the youth justice court judge was required to explain how he reached his conclusion that serious bodily harm was caused or attempted. Moreover, she submits that, because no evidence was called on this issue, the youth justice court judge must have improperly taken judicial notice of this fact.

[6] This ground of appeal can be decided on the basis that there was evidence before the trial judge that allowed him to make the finding that s. 42(5) (a) precluded the imposition of a deferred custody and supervision order. The evidence of the victims at trial and the victim impact statement written by E.H. provided ample support for the conclusion that R.S.’s actions caused the victims serious psychological harm.

[7] R.S. further submits that the sentence was unduly harsh. We do not accept this submission. The youth justice court judge carefully considered all of the aggravating and mitigating factors. R.S.’s conduct was very serious, involving two victims and multiple incidents, including vaginal and anal penetration. In relation to E.H., he only stopped after noticing that she was bleeding. These offences had a profound impact on both young victims.

[8] The youth justice court judge took into account the mitigating factors, including R.S.’s age and his lack of a prior youth justice court record. He characterized the pre-sentence report as “relatively positive”. Although the report underscored R.S.’s considerable rehabilitative potential, it also reflected a lack of empathy for his victims.

[9] In all of the circumstances, it cannot be said that the disposition crafted by the youth justice court judge was unfit.

[10] Lastly, R.S. relies on fresh evidence that details his progress while subject to the open custody and supervision order. The Crown does not oppose the admission of this evidence; however, she submits that the evidence merely confirms what was established at the disposition hearing – R.S. has excellent rehabilitative potential. It also demonstrates that R.S. is a low risk to re-offend.

[11] We commend R.S. for his commitment to a good deal of the programming offered to him while subject to his current disposition. We also note his very positive scholastic achievements to date. It would appear that R.S. is on the right path and we encourage him to continue these efforts. However, this updated information does not impact the fitness of the disposition that was imposed.

[12] Leave to appeal is granted, but the appeal is dismissed.

“B.W. Miller J.A.”

“Gary Trotter J.A.”

“B. Zarnett J.A.”