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:
110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.
111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.
129. 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. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.
Ontario Court of Justice
DATE: 2025-01-21
COURT FILE No.: 4114998 Y4811017
Toronto Region
BETWEEN:
His Majesty the King
— AND —
D.B., a young person
Before Justice Cidalia C.G. Faria
Heard on January 10, May 6, June 18, November 1, and December 20, 2024
Reasons for Sentence released on January 21, 2025 [1]
Brianne Bovell — counsel for the Crown
Emma Rhodes — amicus curiae
D.B. — the accused on his own behalf
Faria J.:
I. Introduction
[1] DB first pled before me on January 10, 2024, to an indecent act he committed in 1974, when he was 17 years old.
[2] The case then took several turns, including an application by amicus curiae, challenging the constitutionality of ss. 42(5)(a) and 42(2)(p) of the Youth Criminal Justice Act (YCJA), alleging the provisions violate ss. 15 and 7 of the Canadian Charter of Rights and Freedoms.
[3] These provisions disentitle a young person from a Deferred Custody and Supervision Order (DCSO) for the offence of indecent act because it is an offence that “causes or attempts to cause bodily harm”. The provisions also limit the length of a DCSO to 6 months. An adult who commits an indecent act is eligible for a Conditional Sentence Order (CSO), the Criminal Code equivalent of a DCSO under the YCJA. Its length can be up to 2 years less a day.
[4] I followed the principle of horizontal stare decisis, and found, as Justice Camara did in R. v. T.M., 2024 ONCJ 257, that both sections violate ss. 15 and 7 of the Charter. I declared ss. 42(5)(a) and 42(2)(p) invalid. (R. v. D.B., 2025 ONCJ 38)
[5] The matter is now finally ready for sentence, and these are my reasons.
II. Brief Procedural History
[6] DB first pled guilty to an indecent act on January 10, 2024 when he was represented by Counsel. The matter was adjourned for material to be filed and for submissions to be made. I noted the Information was flawed and advised the parties. The plea was struck, a new Information filed, and DB entered a proper guilty plea as a young person to indecent act on June 18, 2024.
[7] I then brought to Counsel’s attention that his position, that of a Conditional Sentence Order under the Criminal Code is unavailable to a young person, as is the YCJA equivalent, a DCSO because an indecent act causes or attempts to cause bodily harm and is thus excluded per s. 42(5)(a) of the YCJA and limited to 6 months per s. 42(2)(p). I referred him to a recent decision on the constitutionality of these provisions. The sentencing was adjourned for Counsel to consider his position.
[8] Counsel had been ill throughout the proceedings and on November 1, 2024, applied to be removed from the record as he was medically unable to continue to represent his client. I granted the application.
[9] DB received legal information, and then chose to represent himself.
[10] I appointed amicus curiae to assist with the constitutional issue and heard submissions on December 20, 2024. As indicated earlier, I found the impugned provisions unconstitutional in written reasons earlier today.
III. Circumstances of the Offence
[11] DB is LIF’s cousin. Between January 1974 and April 1974, LIF was 5 years old and lived in Toronto with her parents, her two brothers, and 17-year-old DB. DB had been sent to Canada from Italy to stay with the family.
[12] During this time, LIF would be left alone with DB. On one occasion, LIF was in DB’s bedroom. She stood on his bed with her pants down. DB penetrated her vaginally with his fingers.
[13] On a second occasion, DB was in the laundry room in the basement of the home with LIF. He exposed his penis and placed it in her mouth for her to perform fellatio. DB ejaculated. He laughed when she said she thought he had peed in her mouth.
[14] On June 27, 2022, LIF came forward and reported the incidents to police, and on July 31, 2022, DB surrendered to police.
IV. DB Circumstances
[15] DB’s father abandoned him and his mother in a small farming village in Italy. His mother was unable to care for him, and unable to protect him from violence. She sent him at the age of 13 to Toronto to live with relatives. Once DB arrived, he stayed with his aunt and uncle who fed him and put a roof over his head but did not have the time or inclination to provide much else. They did not parent him. Further, because he was in Canada illegally, his relatives did not allow him to go to school. He just stayed in the house when the other children went to school.
[16] I infer DB had to learn English and make his way within that context from the age of 13. When DB committed the offence at the age of 17, he had been abandoned by both his parents, he was alone, and illegally in a foreign country. He was dependant on relatives for survival. He had no education, no job, no guidance, and no social skills.
[17] From these very compromised conditions, DB went on to make a life for himself. He learned to speak English and got a job. Although he could not read nor write in the English language, he attained success in a company called Dynamic Tire and built a career. He married, and supported his wife who had a mental health condition. He had two children whom he raised, and who are now adults and attended court.
[18] When the tire business required technical skills, DB was let go. This led to depression and severe health conditions. Several exhibits were filed documenting these conditions which include the fact he had heart bypass surgery in 2023, has diabetes, an anxiety disorder, panic attacks, insomnia, major depressive disorder, obstructive sleep apnea, osteoarthritis and chronic mechanical back pain. He takes numerous medications for these conditions and medications for several other medical conditions that are not as debilitating. [2]
[19] DB is now a 68-year-old man with severe health issues who lives on a small pension. He sees his children and 5 grandchildren. He gardens when he can. He volunteers in a community centre 4 hours a week when he can. A very articulate letter filed by his granddaughter spoke of DB’s perseverance and positive influence on her life and the life of her family. She described DB as dedicated, selfless, encouraging, calm, responsible, steadfast, and a remarkable pillar to her family. [3]
V. Position of the Parties
[20] The Crown recommends a 4-month custodial sentence, and a 2-month supervision order. She also recommends a DNA order.
[21] DB adopts the position of his former Counsel that his sentence should be served in the community as a DCSO. Neither his former Counsel nor DB, representing himself, made submissions on the appropriate length of the DCSO.
VI. Legal Principles
[22] Youth sentences are governed by the overarching principles in s. 3 of the YCJA. The youth criminal justice system is intended to protect the public by holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, promoting the rehabilitation and reintegration of young persons and supporting the prevention of crime by referring young persons to programming.
[23] The system is separate from that of adults based on the principle of diminished moral blameworthiness or culpability. This is the cornerstone of youth sentencing as articulated in R. v. D.B., 2008 SCC 25.
[24] It is noteworthy that a youth sentence should:
- Be less severe than an adult sentence for the same offence.
- Be similar to sentences for other young people.
- Be proportionate to the seriousness of the offence and the degree of responsibility of the young person.
- Be the least restrictive possible.
- Promote the rehabilitation of the young person.
- Promote the reintegration of the young person.
- Promote a sense of responsibility in the young person.
[25] General deterrence is not a permissible objective of a youth sentence. [4]
[26] The purpose and principles of sentencing as set out in s. 38 of the YCJA must guide this court. The principles of accountability, proportionality, restraint, and the least restrictive sentence capable of rehabilitation and promoting a sense of responsibility apply.
[27] The sanction should also reinforce the link between the offending behaviour and its consequences, respect for societal values, reparation of harm to victims and the community.
VII. Analysis
[28] I must consider DB’s circumstances in 1974 when he was 17 years old and committed the offence and apply the principles of sentencing to a young person although before me today is a 68-year-old man. He did not know then, what he knows now. LIF submitted a Victim Impact Statement (VIS) [5]. She informs the court that the offence still affects her today. She is traumatized for life, she trusts no one, and she is triggered by stories or movies with similar situations. [6]
[29] Even at the age of 17, DB could see the immediate reaction of his conduct and the way it disturbed and harmed his little cousin.
Aggravating Factors
[30] This offence was committed against a very young child. LIF was only 5 years old at the time and completely unaware of the depth of the sexual violation perpetrated against her. This was aptly captured by her believing that DB had urinated in her mouth.
[31] DB was in a position of trust in the family as an older cousin, both in the view of the parents who left LIF in his care, and in the eyes of LIF who likely perceived him as an adult given the age difference.
[32] The breach of trust was further exacerbated by the fact DB was a family member.
[33] The sanctity of LIF’s home was violated. The offence was perpetrated where she was to have felt the safest. Instead, she was deeply violated.
[34] The combination of the victim’s age, DB’s position of trust, and his relationship with her contributed to the significant negative impact of this offence on the victim. Her life has been adversely and seriously impacted emotionally and psychologically. The offence also damaged her relationship with her family and her interactions with others.
[35] The degree of physical interference was significant in both instances.
[36] It is particularly abhorrent that DB ejaculated in LIF’s mouth and laughed at her innocent disgust when she believed he had urinated in her mouth.
Mitigating Factors
[37] I must also consider factors in DB’s favour. DB communicated his intention to plead guilty to his counsel from the start, and though it took some time to reach fruition, it is considered an early plea. It saved valuable resources in a strained justice system.
[38] His plea obviates the need for the victim to testify. Given the intensity of the VIS, a trial and even the gentlest of cross-examinations would have had a very traumatizing effect on the victim.
[39] DB had no criminal record at the time he committed the offences, nor has he acquired one in the last 50 years.
[40] DB’s circumstances at the time of the offence, as a young person, were particularly compromised. He was sent to Toronto alone, at the age of 13, to live with strangers. Though he was fed and housed, he was not parented. His education was limited by the very people who were responsible for his care. He had no family, no support, no education, no guidance, and was isolated in a foreign country at the time of the offences.
[41] These circumstances of vulnerability further attenuate his diminished culpability as a young person.
[42] However, it is, in my view, DB’s response to the accusation of these offences as an adult that is most mitigating.
[43] In June 2022, LIF called DB after decades of little or no contact and accused him of molesting her as a child. DB took immediate responsibility. He acknowledged his wrongdoing. He tried to ameliorate her pain. He apologized. He demonstrated insight specifically telling her that it was all his fault.
[44] He used words such as he was “stupid” “young” and “ignorant”, but said it was “all my fault”. He did not deny or minimize or deflect from the severity of his actions 50 years before. He attempted to repair the harm done, to no avail, but the effort matters.
[45] Unbeknownst to him, he was being recorded and LIF provided DB’s confession to the police. [7]
[46] DB’s immediate, authentic taking of responsibility for such severe, damaging, and stigmatized conduct is unusual in these courts.
[47] DB turned himself in, and immediately indicated he would plead guilty. DB’s remorse is on audio. His remorse is demonstrated by his plea, and again during his allocution when he again apologized for the offence. He expressed the shame he feels and the shame he has brought on his family, and his life, after having accomplished so much.
Principles
[48] The nature of the offence DB committed is grave. It has negatively impacted LIF all her life and will likely continue to. DB’s remorse, his apologies, and his plea cannot repair the harm done.
[49] Had DB committed this offence as an adult, a CSO though available, would be insufficient to reflect the gravity of the offence and the blameworthiness of the offender, nor would it adequately reflect the denunciation and deterrence required for an adult offender.
[50] However, neither the concept of blameworthiness nor the principles of denunciation and deterrence apply in the same way to young persons, and that is what DB was when he committed the indecent act, a young person.
[51] His sentence must be proportionate to the seriousness of his offence and the degree of his responsibility as a young person. The sentence must also be the least restrictive as possible in the circumstances for a young person.
[52] It is for these reasons that a DCSO is the most appropriate sentence in this case. It reflects both the gravity of the offence and DB’s diminished culpability by virtue of both his age and his circumstances at the time he committed the offence.
[53] The YCJA limitation of 6 months, however, is insufficient to reflect the proportionality required in this case.
[54] The appropriate sentence must reflect the community’s condemnation of what DB did and sanction it as he understood it at the time. His cruel laughter to the victim’s reaction and disgust demonstrated he understood her innocence at the time and was not empathetic to it. That is blameworthy conduct, in its context as a young person that must be reflected in the sentence. For this reason, a DCSO significantly longer than 6 months is warranted.
VIII. Sentence
[55] DB, I sentence you to a 2 year less a day Deferred Custody and Supervision Order. The conditions of the order will be appended to my reasons.
[56] The maximum total penalty available under the YCJA for this offence is 2 years, and for that reason, I cannot impose an additional period of probation.
[57] I will make a DNA order for a sample to be taken in this Courthouse today.
Released: January 21, 2025
Signed: Justice Cidalia C.G. Faria
Appendix A: DCSO
DB, you will be placed on a Deferred Custody and Supervision Order for a period of 2 years less a day commencing today, January 21, 2025 which is to be served under conditional supervision in the community subject to the following conditions:
- Keep the peace and be of good behaviour.
- Appear before the Court when required to do so.
- Report to the provincial director or designate within 24 hours of this order and thereafter when and how as required by the provincial director or designate.
- Advise the provincial director or designate of your address and report to the provincial director or designate any change of address.
- Attend and actively participate in all assessments, counselling, and rehabilitative programs as directed by the provincial director or designate, and in particular, in relation to sexual boundaries.
- Sign any releases to enable the provincial director or designate to monitor your attendance and completion of all assessments, counselling, and rehabilitative programs as directed by the provincial director or designate.
- Do not possess, own, or obtain control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance.
- Have no contact with LIF directly or indirectly.
- Not be within 100m of where LIF lives, works, goes to school, volunteers, worships, or you know her to be, except in the presence of counsel or for court attendance.
- Remain in your residence at all times during your Deferred Custody and Supervision Order except:
(a) In the case of medical emergencies involving yourself.
(b) For the purpose of travelling directly to, from and during medical, dental, therapeutic, and counselling pre-scheduled appointments, the details for which you will provide to the provincial director or designate.
(c) For the purpose of travelling to, from while in a place of worship once a week, the details for which you will provide to the provincial director or designate.
(d) From 10 a.m. to 4 p.m. on Saturdays for the purpose of obtaining the necessities of life.
(e) When in the direct presence of your daughter or son-in-law between the hours of 10 a.m. and 9 p.m., with prior written approval from the provincial director or designate.
(f) With the specific, dated, written pre-approval of the provincial director or designate, the approval for which will be carried on your person.
Footnotes
[1] I read my reasons orally and advised the parties that should there be any difference between my oral reasons and my written reasons, it is written reasons that prevail.
[2] Exhibits 3, 4, 5, 6, 7, 10, 11, and 12 from medical professionals, and from the Vaughan Innovative Medical Clinic, list each diagnosis, its symptoms, and DB’s medication, and his ongoing medical requirements.
[3] Exhibit 9, Letter of IC.
[4] R. v. BWP; R. v. BVN, 2006 SCC 27, paras. 22-26.
[5] Exhibit 1: Victim Impact Statement by LF includes several statements which are inadmissible such as unproven allegations about DB, his children, and others. Some of these allegations are specifically denied in writing by DB’s daughter PC in Exhibit 2. These allegations are not considered part of the VIS.
[7] Exhibit 3: Audio recording of DB speaking to LIF in June 2022.