WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO s. 38 OF THE ACT WHICH PROVIDES:
38.(1) Subject to this section, no person shall publish by any means any report
(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or
(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence
in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.
(2) Every one who contravenes subsection (1), …
(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.
W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.
DATE: 20030303
DOCKET: C38763
COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O., WEILER and CHARRON JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Mary-Ellen Hurman
for the respondent
Respondent
- and -
B.R.G.
Robert B. Howe
for the appellant
Appellant
Heard: February 4, 2003
Application for review pursuant to s. 16(9) of the Young Offenders Act to reverse the reasons and order for transfer of Justice S.G. Radley-Walters of the Ontario Court of Justice dated August 9, 2002.
CHARRON J.A.:
[1] The applicant is 43 years old. He is charged with sexual offences allegedly committed between 1972 and 1977 when he was 13 to 18 years of age. The complainant is his sister. She was 8 to 13 years old at the time of the alleged incidents. She reported the sexual incidents to the police only recently, in June 2000. The Crown obtained an order pursuant to s. 16(1) of the Young Offenders Act, R.S.C. 1985, c. Y-1 (the “YOA”) for the transfer of the charges from youth court to ordinary court. This is an application brought pursuant to s. 16(9) of the YOA for review of the transfer order.
[2] The relevant test governing the transfer application under s. 16(1) of the YOA is set out in the following subsections:
(1.1) Order – In making the determination referred to in subsection (1)…, the youth court, after affording both parties and the parents of the young person an opportunity to be heard, shall consider the interest of society, which includes the objectives of affording protection to the public and rehabilitation of the young person, and determine whether those objectives can be reconciled by the youth being under the jurisdiction of the youth court, and
(a) if the court is of the opinion that those objectives can be so reconciled, the court shall
(i) in the case of an application under subsection (1), refuse to make an order that the young person be proceeded against in ordinary court, …
… or
(b) if the court is of the opinion that those objectives cannot be so reconciled, protection of the public shall be paramount and the court shall
(i) in the case of an application under subsection (1), order that the young person be proceeded against in ordinary court in accordance with the law ordinarily applicable to an adult charged with the offence…
(2) Considerations by youth court – In making the determination referred to in subsection (1) … in respect of a young person, a youth court shall take into account
(a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed;
(b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt under this Act or any other Act of Parliament or any regulation made thereunder;
(c) the adequacy of this Act, and the adequacy of the Criminal Code or any other Act of Parliament that would apply in respect of the young person if an order were made under this section, to meet the circumstances of the case;
(d) the availability of treatment or correctional resources;
(e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and
(f) any other factors that the court considers relevant.
[3] The application for review in this court is governed by s. 16(9):
(9) Review of youth court decision – An order made in respect of a young person under this section or a refusal to make such an order shall, on application of the young person or the young person's counsel or the Attorney General or the Attorney General's agent made within thirty days after the decision of the youth court, be reviewed by the court of appeal, and that court may, in its discretion, confirm or reverse the decision of the youth court.
[4] The Crown alleges a total of eight incidents of sexual touching. Some of the incidents were allegedly committed when the applicant was 13 years old. At the transfer hearing, the Crown conceded that the charges in relation to allegations arising before the applicant became 14 were not capable of transfer pursuant to s. 16(1) of the YOA. As well, the jurisdiction of the youth court does not extend to one of the offences, as it was allegedly committed after the applicant attained the age of 18 years and was no longer a young person. A charge was brought in ordinary court in relation to that incident. Hence this application relates only to those incidents that allegedly occurred after the applicant reached the age of 14 and before he was 18 years old.
[5] The complainant also reported a number of other sexual incidents involving the applicant’s older brother and their uncle, and charges were laid against them. Some of the charges against the applicant’s brother were also brought in youth court but were subsequently transferred to ordinary court with his consent. The charges against the uncle were brought in ordinary court as he was an adult at the relevant time. The Crown intends to join the applicant with the other two accused on one information in ordinary court if the charges are transferred.
[6] The allegations against the applicant involve acts of simulated intercourse without clothing, oral sex, and acts of sexual touching of the complainant under her clothing. The allegations against the applicant’s brother involve a larger number of incidents involving forced masturbation and simulated sexual intercourse from the time the complainant was 8 years old. Some further offences involving full sexual intercourse and forced masturbation are alleged to have been committed by the applicant’s brother when the complainant was 13 to 23 years of age. The charges against the complainant’s uncle involve four incidents of full sexual intercourse when she was 13 and 15 years of age. He was in his fifties at the time.
[7] At the hearing, the Crown called Melanie Ferdinand, the provincial coordinator for Assessment, Placement and Transfer from the Ministry of Public Safety and Security, to provide expert opinion evidence on the facilities and opportunities available to both young offenders and adults in the provincial correctional system. A predisposition report was also prepared and filed with the court to assist in determining whether the charges should be proceeded with in ordinary court.
[8] The youth court judge made reference to the following facts in his consideration of the various factors set out in the YOA:
• the alleged offences involved a breach of trust by an older sibling towards a younger sibling;
• the applicant is mature, married and has two children aged twenty and fifteen;
• no other allegations of sexual impropriety were made against him; his only involvement with the criminal justice system resulted in a conditional discharge in 1995 for assaulting his son;
• there are limited correctional services available for mature, older offenders who have been convicted of offences committed while they were young persons;
• contrary to the youth custodial system, the adult custodial system allows for earned remission on sentences, temporary absence passes, conditional sentences and intermittent sentences;
• the youth custodial system, and more particularly its treatment programs, is not geared to handle offenders who are over the age of twenty years of age at the time of disposition; and
• when incarcerated young offenders reach the age of twenty, an application is normally made under s. 24.5(1) to have the offender serve his sentence in an adult facility.
[9] The predisposition report revealed that the correctional authorities recommended that the applicant not be placed in a facility for youth.
[10] In all the circumstances, the youth court judge concluded that the objectives of affording protection to the public and rehabilitation of the offender could not be reconciled by the applicant being in youth court. In particular, he found that the protection of the public includes other young offenders and that placement of the applicant in a facility for youth “would put both parties in danger and at risk.” He also adopted the reasoning in R. v. G.S. (1991), 1991 7079 (ON CA), 5 O.R. (3d) 97 (C.A.) where this court held at p. 109 that “[i]t is reasonable to assume that it was the intention of Parliament that, other things being equal, the older a young person is, the heavier the age factor weighs in favour of making the transfer order. That would seem to be a matter of pure common sense.”
[11] The standard of review in this court is aptly set out by Doherty J.A. in R. v. J.C. (2000), 2000 5657 (ON CA), 143 C.C.C. (3d) 59 at para. 15:
The appellate court must consider the applicable statutory principles and make its own evaluation of the merits of the application. In doing so, the appellate court will accept any credibility assessments and findings of fact made by the judge hearing the application unless those findings are unreasonable or are based on a misapprehension of the evidence or a failure to consider relevant evidence: R. v. M. (S.H.) (1989), 1989 31 (SCC), 50 C.C.C. (3d) 503 at pp. 548-49 (S.C.C.); R. v. C. (D.) (1993), 1993 8531 (ON CA), 85 C.C.C. (3d) 547 (Ont. C.A.) at p. 558, leave to appeal to S.C.C. refused (1994), 86 C.C.C. (3d) vii.
[12] In my view, the youth court judge’s findings and his conclusion that the charges should be transferred are reasonable and entirely supported by the evidence. I also agree with his conclusion on my own evaluation of the merits of the application.
[13] The most significant circumstance in this case is the fact that the applicant is 43 years old. Although age is but one of the considerations set out under s. 16(2), as noted by this court in R. v. G.S., the older the age of the “young person”, the heavier this factor will weigh in favour of a transfer. In my view, this conclusion is inescapable given the very nature of the youth court system. As noted by L’Heureux-Dubé J. in R. v. S.H.M. (1989), 1989 31 (SCC), 50 C.C.C. (3d) 503 at 513 (S.C.C.):
Transfer deprives the youths of their entitlement to the rehabilitative philosophy and treatment resources of the system specially designed to meet their needs.
[14] This underlying concern about the effect of a transfer permeates many of the considerations set out in s. 16(2). It also informs much of the court’s determination under s. 16(1.1) as to whether the objective of rehabilitation can be reconciled with the youth remaining in youth court. However, the concern about depriving the offender of the benefits of a system designed to meet his needs does not arise in the case of a 43-year-old person. On the contrary, the youth court system will generally be ill-suited to meet the mature offender’s rehabilitative needs.
[15] The appellant’s age and the consequent ill-suitability of his placement in a youth facility with other young offenders was also specifically noted by the application judge. The application judge was of the view that such a placement raised a concern for the safety of both the appellant and the other young offenders. The appellant submits that this kind of concern is one that should be addressed at the time of disposition only. He notes s. 24.5(1) of the YOA which allows for the transfer of a young offender who has attained the age of 18 years to a provincial adult facility to serve his disposition where the court considers it to be in the best interest of the young person or in the public interest.
[16] In my view, the availability of a transfer under s. 24.5(1) does not preclude the application judge on a transfer application under s. 16(1) from considering the effect of any potential placement of the offender in a youth facility when it is relevant. Other young offenders can properly be considered as part of the public in determining the need for protection of the public under s. 16(1.1).
[17] I note finally that the public interest in the efficient administration of justice by avoiding a multiplicity of proceedings is also a relevant factor under s. 16(2)(f), insofar as it can be considered within the parameters of the broad objectives in s. 16(1.1): see R. v. F.O.; R. v. K.G. (2002), 2002 53224 (ON CA), 163 C.C.C. (3d) 426 at para. 79 (Ont. C.A.); R. v. D.M. (1990), 1990 10955 (ON CA), 61 C.C.C. (3d) 129 at 130 (Ont. C.A.). In this case, this additional factor provides further support for the transfer of the charges to ordinary court.
[18] For these reasons, I agree with the youth court judge’s conclusion on the evidence before him that the objectives of affording protection to the public and rehabilitation of the appellant cannot be reconciled under the jurisdiction of the youth court. I would dismiss the application for review and confirm the order for transfer.
Released: MAR 03 2003 Signed: “Louise Charron J.A.”
D’OC “I agree Dennis O’Connor A.C.J.O.”
“I agree K.M. Weiler J.A.”