Court Information

Date: July 25, 2017

Information Number: 998-16-Y18128

Ontario Court of Justice

Youth Justice Court

In the Matter of the Youth Criminal Justice Act, S.C. 2002, c.1

Her Majesty the Queen

- and –

J.B.

Before the Honourable Justice G. Wakefield

At the Courthouse, 150 Bond St. E., Oshawa, Ontario

On Tuesday, July 25, 2017

Publication Ban

Protected from Publication by Sections 110 and 111 of the Youth Criminal Justice Act

Ban on Publication - s. 486.4(1) Ordered by Justice Devlin April 22, 2016

Appearances

• B. Guertin – Counsel for the Crown
• K. Fay – Counsel for J.B.

Reasons for Sentence

WAKEFIELD J. (Orally)

Conviction and Background

On April 25, 2017, I convicted J.B. of both sexually assaulting and forcibly confining the victim in this matter for an offence which occurred on March 6, 2016. Reasons for conviction, setting out the findings of fact, are now reported. Sentencing submissions were heard on June 23, 2017 with the assistance of a Pre-Sentence Report. However, insufficient time was left on that date to release a decision, especially with regard to the defence submissions regarding the applicability of a deferred custody sentence to the facts of this case. As such, sentencing was put over to July 25, 2017.

J.B. was 17¾ years old when he committed these offences. Had the same choices and actions occurred three and a half months later, he would be facing a substantially lengthy period of incarceration in a federal penitentiary. As I explained to the defendant, even under the Youth Criminal Justice Act's predecessor legislation, the Young Offender's Act, I would have anticipated a minimum one-year secure custody disposition and not be surprised at a lengthier sentence.

Sentencing Submissions

However, the sentencing regime under the current legislation, together with a positive pre-sentence report, has resulted in a Crown position of 9 to 12 months open custody, followed by 12 to 18 months probation, to bring a total disposition up to the maximum permitted by the Act, together with requests for DNA and a s. 51(1) weapons prohibition order for three years.

Counsel for J.B. is urging a deferred custody disposition of four to six months, followed by 12 to 16 months probation. Should that position not carry the day, then counsel proposed an open custody duration of three to four months, followed by probation.

Defence agreed to my suggestion that a probation order should include an abstention-from-alcohol term and given the probation order e-form has broader language than the s. 51(1) order, a probationary term prohibiting weapons in addition to the s. 51(1) order.

The Crown opposed the availability of a deferred custody order given the offence caused serious bodily harm and if wrong, that a deferred custody order would not, in any event, meet the requirement of meaningful consequences.

Pre-Sentence Report Assessment

J.B. is the subject of a quite positive pre-sentence report. It sets out the challenge of sentencing an otherwise good person who has chosen to do something very bad.

He is described as having positive and very close relationships with all his immediate and extended family. He describes his mother as his best friend and closest to her of all his family members.

Despite his parents separating five years ago and having a past history of "butting heads" with his father, his relationship with his father is now very close and in fact, they work together as the defendant completes his grade 11 co-op at that worksite. I have certainly seen continuing support from his parents and extended family throughout these proceedings.

J.B. is described as being quite compliant at home, completing chores and participating in all residential activities as his parents taught him life skills in order to be successfully independent one day.

Like so many teenagers, he experimented with marijuana at 14 and alcohol at 15. While sufficiently mature to dislike some of the side effects of marijuana and deciding to stop consuming that drug, he did not see the same effect on him from alcohol consumption despite the inherent warning of receiving a public intoxication ticket in 2015, months before assaulting the victim and after having voluntarily consumed a prodigious amount of alcohol.

The defendant is confirmed to have completed the necessary volunteer work for his high school diploma and has continued that volunteer work beyond the required 40 hours.

J.B. may have had a rocky educational start in high school but which he improved upon, despite absenteeism until grade 12 when charged with this offence, upon which he was transferred to the Durham Alternative Secondary School to ensure compliance with the non-association order with respect to the victim. Despite that disruption in his education and the stress of his outstanding charges, he successfully completed the requirements for his OSSD and graduated. He is now the recipient of a scholarship for a post-secondary program in Elevating Devices Mechanics and already has confirmed an apprenticeship position. J.B. has moved on and is creating the foundation for a long, successful future career.

The pre-sentence report also confirms a self-reported insight into the impact of sexual assaults on victims, including the victim of his own crime. I acknowledge that his comments in that report are suggestive of a level of insight and sensitivity I suspect is rare within his age group.

The youth worker who authored the report was also clearly impressed to the extent of specifically recommending a Deferred Custody And Supervision Order disposition if an actual custodial sentence was even imposed.

The report points out that a secure custody disposition would essentially bar the defendant from entering his apprenticeship on time. While the report acknowledged an open custody sentence would permit a reintegration application to attend Durham College and his apprenticeship, the report is more focused on minimizing the sentencing impact on the defendant and supporting rehabilitation over other YCJA sentencing principles.

The Youth Worker states that "the average length of specialized, community-based treatment in North America for youth who have harmed others sexually is about 15 months, so some encouragement from the courts for a period of at least 18 months would be beneficial". This sentence will provide that encouragement since the report confirms such treatment would be available in either Open Custody or a Deferred Custody disposition.

Victim Impact

The victim has not moved on as successfully as has the defendant. While not being able to speak to the victim, the pre-sentence report author did talk to her mother, who asserted on behalf of her daughter that neither mediation or reconciliation were options for the victim. There was a request for a non-association condition in these dispositions.

The victim impact statement sets out the trauma the defendant has inflicted on the victim. She has not been able to move on as successfully as the defendant. She describes herself as unable to sleep, unable to focus on tasks, diminished self-confidence, unable to control her feelings. She is also unable to maintain relationships due to trust issues. She no longer feels comfortable around people.

Additionally, unlike the defendant, she has not been attending school as she is now "known as the girl who was raped". In my view, that was a perfectly foreseeable consequence in this age of social media, despite any number of publication bans, as was the expectation she would have "to endure various social media posts as a result of his friends posting very aggressive comments".

I do trust the police are following up on such postings on Facebook, Twitter and Instagram to determine any breaches of the non-publication orders in this matter.

Just as foreseeable is that while she is glad the court system recognized the defendant committed a crime, "a conviction for rape does not make the situation better or take the memory of the event away". I read that as confirming the victim is still suffering today from the damage caused by the defendant on March 6, 2016. I infer that she now perceives herself as having irreparable emotional and psychological effects.

The ongoing impact of the assault included financial loss from not being able to work with ongoing costs from attending counselling and psychologist appointments. Those costs increased well past her family's insurance benefit coverage and she has now lost access to those supports.

Also telling of the psychological impact on this victim are her own words:

I am afraid to be alone but always feel alone. I am afraid to run into most of the people I knew when the event occurred. I feel like I am worthless. The thought of moving forward makes me scared and I have felt that I don't want to go on.

Legal Analysis: Deferred Custody and Supervision Order

Is a deferred custody sentence available here? I must assess the Act's requirements for such a sentence as I have an obligation to impose the least restrictive sentence in balancing all the sentencing principles set out in the Act.

Who bears the onus of demonstrating an offence is one causing serious bodily harm? Clearly it is on the Crown to prove it on the evidence amounting to proof beyond a reasonable doubt, given the finding would be an aggravating factor on sentence and one which would deprive a youth of the less restrictive deferred custody sentencing option.

In s. 42(5) of the Youth Criminal Justice Act, a deferred custody and supervision order (DCSO) is permitted provided it does not involve an offence in which serious bodily harm is caused or attempted to be caused and such a sentence would not be inconsistent with the sentencing principles set out in s. 38 and s. 39 of the Act. The Act does not provide a definition of serious bodily harm. The Act does limit the duration of a DCSO sentence to a maximum of six months followed by probation.

The definition section of the Act does define a violent offence as:

a) An offence committed by a young person that includes an element of 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.

"Serious offence" is defined as an indictable offence under an act of Parliament for which the maximum punishment is imprisonment for five years or more.

I also note the s. 2 of the Criminal Code defines bodily harm as any hurt or injury to a person that interferes with health or comfort of the person and that is more than merely transient or trifling in nature. It is obvious that the health and comfort extend to emotional and psychological consequences. (R. v. McCraw [1991] 3 Supreme Court of Canada 72 at page 81)

Most reported cases deal with s. 42(5) prior to its amendment and focus on whether the offence was a serious violent offence which would preclude deferred custody. That is no longer the case.

I am only aware of two reported Ontario cases reviewing the current wording of this section, R. v. M.A. [2017] O.J. No. 856 and R. v. J.L. [2016] O.J. No. 5131.

R. v. M.A. Analysis

In R. v. M.A., in sentencing a youth for a low-level home invasion in which there was only a brief physical restraint without any physical injuries, Justice Doody observed at paragraph 20:

"Serious bodily harm" is not defined in the YCJA or the Criminal Code (the definitions of which are adopted for the Youth Criminal Justice Act by s. 3(2) to the extent that they are not in conflict). "Bodily harm" is not defined in the YCJA, but is defined in the Criminal Code as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature".

He goes on at paragraph 21 to state:

The Supreme Court of Canada held in R. v. C.D.; R. v. C.D.K., 2005 SCC 78 at para. 20, that the phrase "serious bodily harm", at least for the purpose of the previous definition of "serious violent offence" in the YCJA (which used that phrase), meant 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.

The judge went on to say:

I see no reason not to adopt the same definition where the phrase is used in s. 42(5), which was added to the YCJA in 2012, after the Supreme Court's decision.

I too see no reason not to continue to adopt that definition to the current wording of s. 42(5), given Parliament would have been aware of the Supreme Court decision as well as, by implication in the Act, that threatening without any physicality can still amount to violence.

Additionally, in R. v. M.A., the court determined that the facts of that home invasion did not give rise to the likelihood of bodily harm, nor was there evidence of psychological harm. Specifically, that complainant's emotional upset was not more than transient in nature.

R. v. J.L. Analysis

In R. v. J.L., regarding prostitution offences involving minors being pimped by that young offender, the court noted at paragraph 66:

Ultimately, bearing in mind that V. and A. were respectively just 15 and 16 years old at the time, that they had intimate photos of themselves posted on-line, that over a two day period they engaged in a variety of sex acts with men who were complete strangers to them and who were many years older than they were, it is impossible not to conclude that these events would have impacted on their emotional well-being in a manner that was more than transient or trifling.

At paragraph 67:

There is evidence to clearly support this conclusion in the record. For example, the Agreed Statement of Fact notes that V. cried during her first sexual experience as a prostitute. Similarly, A. was so upset during one of her encounters that she texted J. afterwards to report that she, "wanted to die."

However, on the issue of the availability of a DCSO, the court ruled at paragraph 89:

In my view, such a sentence is not foreclosed by section 42(5). Although I have concluded that J.'s offences caused bodily harm to the victims, I am not prepared to conclude, without direct evidence from either victim, that the harm occasioned rises to the level of, "serious bodily harm," which the Supreme Court has held requires, "substantial" interference with the physical or psychological integrity, health or well-being of the victim. McCraw at page 81. Further, I do not believe that a sentence of deferred custody would be inconsistent with the purpose and principles set out in section 38 and the restrictions on custody set out in section 39.

In my view, in all of the circumstances, a sentence of deferred custody for six months would be the appropriate disposition in this case, followed by two years probation.

R. v. J.A.H. Analysis

In the Manitoba Court of Appeal decision in R. v. J.A.H. 2016 MBCA 58, the Crown appealed a DCSO sentence for a 14 to 15 year old youth with a prior record of violence on multiple counts with multiple victims under 10 years, including sodomizing them. That court held the trial judge was in error in finding the DCSO was available on those facts. The trial judge had placed the onus on the Crown to adduce additional evidence of harm, yet had already found the victims had suffered serious bodily harm. The court went on at paragraph 23 and following:

The sentencing judge declined to draw the inference. She ruled that the Crown had not established that the respondent had caused, or attempted to cause, serious bodily harm under section 42(5). She then proceeded to impose the DCSO. Which raises the question: what other evidence was the sentencing judge expecting the Crown to call?

[24] Violence and serious bodily harm are implicit in the facts to which the respondent pled guilty. As a result, the evidentiary basis for the serious bodily harm can simply be inferred by the facts that were before the Court. The respondent did not contest that he had forced sexual intercourse or sodomy with his younger victims. As was stated by Cory J in McCraw, "Violence and the threat of serious bodily harm are indeed the hallmarks of rape" (at p 84).

That Court of Appeal went further at paragraph 26:

Moreover, certain facts need not be proven by the calling of evidence because they are sufficiently undeniable to notice judicially (see R. v. Find, 2001 SCC 32, at para 48). In our view, it is beyond reasonable dispute that perpetrating major sexual assaults against young children causes them to suffer serious bodily harm. It is therefore not necessary for the Crown to tender victim impact statements from each of the 5 young victims, or to call them to the witness stand, or to call an expert to prove that the child suffered serious physical or psychological harm. This is also in line with the modern approach to the evidence of young victims of favouring procedures and practices which will reduce the "likelihood of inflicting further injury on a child as a result of involvement in the criminal process" (see R. v. F. (CC), 1997 SCC 306, at paras 29, 41).

Paragraph 27, continuing:

In the result, we are of the view that it can be inferred or presumed that forced anal and/or vaginal penile penetration committed on young children causes or attempts to cause serious bodily harm on the victims. In such circumstances, a youth court is precluded from imposing a DCSO and that leaves, in practical terms, as the only realistic sentence, a custody and supervision order (see R. v K.C., 2011 ONCA 257 at para 26). Consequently, the combined sentence of 6 months of deferred custody and 30 months of probation must be set aside.

I do note that the victim in my case was not much older than the eldest victim in the cited case.

Ultimately, the Manitoba Court of Appeal substituted a sentence of community supervision instead of custody due to the lengthy time the matter had been before the courts and the lengthy time the offender had been in counselling, among other factors.

R. v. S.(B.) Analysis

Defence provided me with R. v. S.(B.), 2017 MBPC 23 in which that court, in assessing the availability of a deferred custody sentence, considered the type of evidence necessary for the Crown to prove the offence caused serious bodily harm, at paragraph 8, stated:

I therefore begin by rhetorically asking myself whether the young person by his actions did in fact actually cause serious psychological harm to the victim. As indicated earlier herein, there is general agreement that such was the case from the perspective of the victim and her parents. However, their victim impact statements make no such mention of any specific diagnosed psychological disorders, disabilities or other infirmities that have been connected to the assault by treating professionals. Indeed, the only mention of treatment was a general reference in the victim's statement to counselling she received to help her contend with understandable post-offence feelings of violation and fear. I am of the view that standing alone, the victim's evidence of psychological harm fails to meet the objective standard necessary to support a finding of serious psychological harm. In other words, although there is ample evidence of general traumatisation suffered by the victim, there is no clinical psychological evidence that same has left her with pathological, long-term treatable or untreatable psychological harm. The Court again observes and emphasizes that it did not receive a report from the Primary Health counsellor who provided post-trauma service to the victim in such respect. The Court is of the view that it is unqualified to make a diagnostic assessment of serious psychological harm absent the guidance and opinion of a qualified clinical psychological expert – obviously someone with appropriate accreditation in the diagnosis of psychological disorders and therapy, perhaps even a clinical psychologist who has recognized expertise in the field of forensic psychology.

I would respectfully disagree with that proposition. In my view, revictimizing the victim by forcing disclosure of counselling records or forcing participation into forensic psychological assessments are completely contrary to this Act's Declaration of Principle in s. 3(1)(d)(ii) that "victims should be treated with courtesy, compassion, and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the Youth Criminal Justice system". I adopt the ruling in J.A.H. that the finding of serious bodily harm can be inferred from the nature of the offence without more formal intrusive assessments of victims.

R. v. K.S. Analysis

Defence has provided me with R. v. K.S., 2016 YKTC 23, a sentencing dealing with sexual interference on younger siblings. In that judgment, at paragraphs 175 and 176, the court stated that while it understood the need to protect young children, the court still required information from collateral sources such as parents or caregivers or, in some circumstances, counsellors about the harm suffered by victims in order to be able to come to an informed decision about the extent of the harm caused to the victims. The court further concluded that it would be wrong to engage in speculation and operate on the basis of a presumption of harm in such cases.

In my view, with respect to those courts with contrary findings, there is now more than sufficient appellate authority as to the psychological consequences of sexual assaults and especially forced intercourse for me to infer the existence of serious bodily harm from the offence and factual underpinnings without any ancillary evidence or testimony and I find that the Crown has met its onus from that alone.

Additionally, forced assessments or even disclosure of counselling records at sentencing hearing, which presumably would only have been available to the defence at trial after a pre-trial third party records application would, in my view, breach the Act's principles regarding victims set out in s. 3(1)(d)(ii).

However, here, in this trial, there is also the victim impact statement which sets out the ongoing emotional harm from which the victim is still suffering and fact of counselling with the now deprived but continuing need for counselling.

I do find the existence of serious bodily harm from the ongoing psychological impact on the victim and as such, I find that the DCSO sentencing option is statutorily barred.

Accountability and Proportionality

In R. v. K.C., 2011 ONCA 257, while primarily a review of the former Serious Violent Offences Designation, sets out:

Due to the operation of s. 42(2)(p), the maximum available deferred custody sentence was a sentence of six months duration (less credit for pre-sentence custody). Particularly having regard to the fact that the January 27, 2007 incident was the second occasion in a period of just over a week that the respondent was involved in a violent robbery involving the use of a sawed-off shotgun, a deferred custody sentence was simply insufficient to hold the respondent accountable for his conduct — conduct that, on the sentencing judge's findings, was a significant contributing cause of serious psychological trauma to at least one of the victims of the January 27, 2007 incident.

The Court of Appeal continued at paragraph 88:

I reach this conclusion even taking account of the positive steps the respondent took towards his rehabilitation following his arrest. The opinion expressed in both the pre-sentence report and the s. 34 assessment that he has a relatively low risk of re-offending and the concerns expressed in the s. 34 assessment that a custodial disposition would expose him to more delinquent associates and therefore have a negative impact on his rehabilitation.

[89] In addition to reducing overuse of custody for non-violent young persons, the YCJA has, as one of its purposes, holding young persons accountable for their offences by imposing meaningful consequences. Further, one of the principles of youth sentencing is that the sentence "must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence: s. 38(2)(c). As I have said, in my opinion, the deferred custody sentence imposed by the sentencing judge was simply insufficient to hold the respondent accountable for the extremely serious January 27, 2007 set of offences.

Even if I am wrong as to the availability of a DCSO, I do find that such an option, even in the context of the Act's direction to impose less restrictive sentencing option, that in the circumstances of this offence a DCSO would be insufficient to hold the defendant accountable for such an extreme and intrusive assault on the victim's sexual integrity and her continuing to suffer the effects of the assault.

Sentencing Decision

In the circumstances of this offence, I also find that the Crown submission as to sentencing is correct. There will be an open custody sentence of 12 months duration comprising eight months custody and four months community supervision. However, taking into account the positive pre-sentence report and the availability of both scholarship and apprenticeship in J.B.'s immediate future, I intend to provide an opportunity to you to demonstrate your ability to follow through on your plans. As such, I am ordering a sentence review on December 1, 2017, at 9:00 a.m. in courtroom 101.

The custodial portion of this sentence will be followed by a probationary period of 12 months as recommended by the Crown on conditions I will set out.

Additionally, given the primary nature of the offence, there will be a DNA order that shall apply to both charges. With respect to the forcible confinement, while there is no prior record, given the circumstances of this offence, the minimal impact on the personal integrity of the offender, and the five-year retention period, I am satisfied that it is in the best interests of the administration of justice to have the DNA apply to this count. I do note that the 5-year retention period means that if you stay out of trouble, ultimately, the DNA is destroyed by the government.

There will be a s. 51(1) order for a period of three years.

I have not heard any request by the Crown or submissions as to a financial compensation order pursuant to s. 42(2)(e), nor do I have an evidentiary basis on which to make such an order.

However, I direct Victim Support to confirm they have provided counselling support referrals to the victim and explained how to put a claim into the Criminal Compensation Board and assisted her in that endeavour. I further direct that VWAP confirm that they have informed the victim of her civil remedies, both with respect to the defendant and as well as those responsible in law for permitting the party, together with how she would go about obtaining counsel prepared to work on a contingency fee basis. Without knowledge of rights and how to enforce such rights, they become quite empty, especially for a young victim still a minor in law. I direct the Crown to confirm to me when this has been accomplished.

Terms of Probation

The terms of the 12-month probationary disposition are as follows:

• You will keep the peace and be of good behaviour.

• You will appear before the court when required to do so.

• You will report in person to a Youth Worker within two working days of your release from custody and after that at all times and places as directed by the Youth Worker or anyone designated by the Youth Worker to assist in your supervision.

• You will live at a place approved of by a Youth Worker and not change that address without obtaining the consent of the Youth Worker in advance.

• You will not contact or communicate in any way, directly or indirectly, on any physical, electronic or other means with M.S. The only exception is through legal counsel or in the presence of a peace officer in case there is pending litigation.

• You will not be within 250 metres of any place you know any of the persons named above to live, work, go to school, frequent or any place you know the person to be except for required court attendances. And again, with the same exception through legal counsel and in the presence of a peace officer.

• You will not possess any weapons as defined by the Criminal Code, including but not restricted to a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited restricted weapon or device, ammunition, explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person.

• You will not buy, possess or consume alcohol or other intoxicating substances.

• You will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the Youth Worker and complete them to the satisfaction of the Youth Worker for alcohol abuse and under "other", any counselling to assist in rehabilitation. That will incorporate all the recommendations in the pre-sentence report.

• You will sign any release-of-information forms as to enable your Youth Worker to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Additional Orders

The warrant will be endorsed with a McKinnon recommendation. This is more than appropriate and it keeps the defendant within the community so he can take full advantage of the application to attend college.

Final Address to the Defendant

Stand up, sir.

Today's sentence is a direct consequence of the choices you made some time ago. You probably are no longer the same person that you were then. I am counting on finding confirmation that you are no longer the same person when I see you again in December and nothing would make me happier than to look at perhaps ameliorating the sentencing once you have demonstrated your ability to work within the system and the counselling. You are under sentence, sir. Thank you.

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Maxine Newell, certify that this document is a true and accurate transcript of the recordings of M. Newell in R. v. J.B. in the Ontario Court of Justice, Youth Justice Court, held at 150 Bond St. E., Oshawa, Ontario, taken from Recording number 2811-101-20170725-082828-Y-5-WAKEFIG, which has been certified in Form 1.

31 July, 2017

Maxine Newell, C.C.R.

Transcript ordered: July 25, 2017

Transcript completed: July 31, 2017

Transcript Released: August 1, 2017