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.

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.

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 (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records)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

CITATION: R. v. M.A.H., 2013 ONCA 235

DATE: 20130415

DOCKET: C53844

Cronk, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.A.H. (A “Young Person” Under the Youth Criminal Justice Act)

Appellant

Bradley Greenshields, for the appellant

Amy Alyea, for the respondent

Heard: October 12, 2012

On appeal from the conviction entered and sentence imposed by Justice Catherine A. Kehoe of the Ontario Court of Justice dated March 10, 2011.

Tulloch J.A.:

A. introduction

[1] After a three-day trial before a judge in the Youth Justice Court, the 16 year-old appellant was convicted of robbery and aggravated assault. The trial judge imposed a sentence of 5 months closed custody for the offence of assault; 5 months open custody, consecutive, for the robbery charges, followed by 5 months of community supervision. The trial judge also gave the appellant a 12- month probationary term and imposed various ancillary orders.

[2] On application by the Crown, pursuant to s. 42(9) of the Youth Criminal Justice Act, S.C. 2002, c. 1, (the “YCJA”), the trial judge designated the aggravated assault as a “serious violent offence” within the meaning of that statute.

[3] The appellant appeals from his convictions and sentence. At the conclusion of the oral argument presented on behalf of the appellant, this court dismissed both the conviction and sentence appeals with reasons to follow. These are those reasons.

B. FACTS

(a) The online exchange and consensual fistfight

[4] The violent events in question started with an antagonistic exchange of words and bullying over Facebook between the victim, E.T., and the appellant and his friends.

[5] One of the appellant’s friends, A.B., was particularly incensed over this online altercation and challenged E.T. to a fistfight. E.T. accepted A.B.’s challenge and on September 23, 2009, the two boys met to fight.

[6] Although E.T. suffered minor injuries during the fight, it concluded rather uneventfully. The appellant, among others, attended the fight to support A.B.

[7] After the crowd dispersed, the boys went their separate ways. E.T and his friend, J.C., began their walk home.

(b) The robbery

[8] Following the fight, the appellant and a friend, J.B., formed the intention to rob E.T of his cell phone.

[9] The appellant and his friend, J.B. approached E.T. and demanded his cell phone. E.T. was not clear in his testimony as to which one of the two asked for his phone, as he was not looking directly at them and did not know them at the time of the incident. However, he believed that it was the appellant who subsequently pushed him and demanded that he empty his pockets. The appellant admitted to being present but nothing more. J.B. pled guilty in a separate proceeding to stealing the cell phone, and testified at trial that the appellant had not been involved.

(c) The assault on the driveway

[10] Despite having obtained the cell phone without incident, but concerned that E.T. might report the robbery, the appellant, J.B. and A.B. proceeded to charge towards E.T. E.T. turned and fled. The appellant pursued E.T. through the neighbourhood.

[11] Eventually, the appellant caught up to E.T. and threw him to the ground on a driveway. Other members of the appellant’s group arrived at the scene, where E.T. was punched and kicked by the group members.

[12] During the assault, E.T. was pushed up against a chest-high chain-link fence. As he hit the fence, E.T. felt his finger immediately become entangled in the fence. He testified that one or two people forcefully pulled him off the fence. He further testified that one of these people was the appellant. When E.T. was finally pulled off the fence, his finger was severed at the top knuckle.

[13] After he was pulled from the fence, E.T. fell to the ground, yelled and pointed at his bloody finger. The crowd panicked and dispersed.

[14] Unfortunately, attempts to re-attach E.T.’s finger were unsuccessful.

C. The conviction appeal

[15] The appellant submits that the trial judge fell into error by reasoning in reverse from the injury to the degree of force used to conclude that the requisite mens rea had been established. Put another way, rather than considering the nature of the blows struck by the appellant, the trial judge focused on the ultimate injury to conclude that the force used by the appellant had been “extreme” or “extraordinary” such that a reasonable person would have appreciated the likelihood of bodily harm.

[16] The trial judge found that, while on the driveway, the appellant had thrown E.T. to the ground and struck him repeatedly. After the assault on the ground, the appellant pushed E.T. into the fence and pulled him off it. During this action, part of E.T.’s left ring finger was severed.

[17] From the testimony accepted by the trial judge and the obvious damage to E.T.’s body, apparent from the pictures admitted into evidence, it is clear that E.T. was subjected to a violent beating.

[18] While the appellant referred to the severing of E.T.’s ring finger as a “freak accident”, the law requires only objective foreseeability of the risk of bodily harm and not the risk of injury of the kind that actually occurred: R. v. L.P. (2003), 2003 CanLII 34564 (ON CA), 172 C.C.C. (3d) 195 (Ont. C.A.), at para. 15.

[19] In my view, the trial judge’s conclusion that the risk of bodily harm was objectively foreseeable in the circumstances was correct. I do not agree with the appellant’s submission that the judge’s verdict disclosed the type of reverse reasoning error contemplated at p. 380 of the Manitoba Court of Appeal’s decision in R. v. Matson (1970), 1970 CanLII 1013 (BC CA), 1 C.C.C. (2d) 374.

[20] The fact that E.T. actually suffered bodily harm only strengthens the trial judge’s conclusion. It was clear from the trial judge’s reasons that she took his injuries as merely reflective of the amount of force used by the appellant in concluding that the injury was “absolutely foreseeable”.

[21] Accordingly, the conviction appeal is dismissed.

D. the sentence appeal

[22] The appellant appeals his sentence on two grounds. First, he submits that the trial judge erred by designating the aggravated assault as a “serious violent offence” (“SVO”) within the meaning of s. 42(9) of the YCJA. The appellant argues that the offence could not have been designated as such where the specific injury was neither intended nor foreseeable.

[23] In addition, he argues that the overall sentence imposed by the trial judge was manifestly unfit having regard to the principle of proportionality under s. 38(2)(c) of the YCJA.

(a) Designation of a “serious violent offence” under the YCJA

[24] On application by the Attorney General, a youth justice court may designate an offence a SVO pursuant to s. 42(9) of the YCJA. Section 2(1) of the YCJA defines a SVO as “an offence in the commission of which a young person causes or attempts to cause serious bodily harm.”

[25] In R. v. K.C., 2011 ONCA 257, 105 O.R. (3d) 1, this court confirmed that the definition of SVO contained in s. 2(1) of the YCJA creates a preliminary threshold that must be met before a youth justice court can exercise its discretion to make a SVO designation. The appellant submits that the proper approach to the preliminary threshold requires the youth justice court to consider whether the young offender is sufficiently morally culpable for his actions. Put another way, since it was unforeseeable to the appellant that serious bodily harm would befall E.T. as a result of the appellant’s actions, it would be unfair to subject the appellant to a SVO designation. I disagree.

[26] Writing for the court in K.C., Simmons J.A. declined to fully address the issue of foreseeability at the threshold stage of a SVO designation. At para. 71, she commented that:

[I]n arguing this appeal, the parties did not address the issue of foreseeability of bodily harm as a component of the SVO threshold and I do not find it necessary to do so. As I point out below, the trial judge concluded, in effect, that the respondent had subjective foresight of bodily harm with respect to the second set of charges. That level of foresight would clearly satisfy any level of foresight that may be found to be necessary at the threshold stage of the analysis. I would add that if foreseeability of bodily harm is found not to be a component of the SVO threshold, in my view, it is a factor that can be considered as part of the exercise of discretion as to whether to make an SVO designation or not.

[27] At issue in K.C. was the proper test to be applied on a SVO designation hearing in relation to an offence committed by a young person found guilty as a party. This case, on the other hand, involves the appellant’s first-hand commission of a violent aggravated assault. The appellant conceded in this court that the complainant suffered “serious bodily harm” and that the appellant was the “legal cause” of that harm. In these circumstances, whether the element of foresight plays a role in a youth justice court’s determination whether the SVO threshold is met is essentially irrelevant.

[28] I am of the view that, in cases where a youth justice court concludes that a young offender has occasioned serious bodily harm to another person, the preliminary SVO threshold under s. 42(9) should be automatically met. Whether or not the serious bodily harm was reasonably foreseeable should, however, remain a factor at the second discretionary stage.

[29] In Youth Criminal Justice Law, 2nd ed. (Toronto: Irwin Law, 2009), authors Nicholas Bala and Sanjeev Anand suggest that, in considering a SVO designation, mens rea might only be at issue where serious bodily harm is not actually caused by the young offender’s actions. At p. 606, Bala and Anand state:

If the offence results in serious bodily harm, then the state of the youth’s mind may not be relevant, so that criminal negligence causing death would be within the definition. However, if serious bodily harm did not result, it must be proven that the youth had the intent to cause serious bodily harm, in which the psychological state of the youth would be relevant.

[30] In R. v. C.D.; R. v. C.D.K., 2005 SCC 78, [2005] 3 S.C.R. 668, the Supreme Court of Canada concluded that a harm-based definition of “violent offence” was preferable to one that is force-based because, inter alia, it reflects the traditional definition of violence which tends to focus on the effects of violence rather than the means employed to produce those effects.

[31] At the threshold SVO stage, the same logic should apply: the focus should be on the effects of the violence rather than the means employed. Once a youth justice court has concluded that serious bodily harm has resulted from the young offender’s conduct, it may still decline to exercise its discretion under s. 42(9) to make the SVO designation. In this way, the court retains its flexibility since foreseeability remains a factor to be taken into account by the youth justice court when exercising this discretion: see R. v. E.F., 2007 ONCJ 113, 157 C.R.R. (2d) 189, at para. 46.

[32] In her reasons for sentence, the trial judge referred to E.F. and reproduced those factors that should and should not be considered by the court when exercising its discretion pursuant to s. 42(9). In my view, she had good reason to conclude that the aggravated assault committed by the appellant was deserving of a SVO designation. This designation was amply supported by the trial judge’s findings of fact regarding the circumstances of the offence and the appellant’s conduct.

[33] In the result, I see no basis for appellate interference with the trial judge’s exercise of her discretion. I would not give effect to this ground of appeal.

(b) Fitness of the sentence imposed by the trial judge

[34] As noted earlier in these reasons, the appellant intervened in the online altercation in support of his friend A.B. After the consensual fistfight between A.B. and E.T., the appellant robbed and assaulted E.T. for a first time. Following the robbery, the appellant chased E.T. and, with his friends, continued to beat E.T. During this last round of violence, E.T. sustained the permanent loss of part of his left ring finger.

[35] The trial judge characterized the appellant’s actions in this regard as gratuitously violent. I agree with her assessment.

[36] In arriving at the sentence imposed on the appellant, the trial judge considered the applicable principles of youth sentencing. She concluded that a custodial sentence of five months’ closed custody, five months’ open custody and five months of community supervision followed by a period of probation was appropriate.

[37] In my view, the sentence imposed by the trial judge was fit and does not offend the requirement of proportionality provided for in s. 38(2)(c) of the YCJA.

E. Conclusion

[38] As indicated at the end of oral argument, both the conviction appeal and the sentence appeals are dismissed.

Released:

“APR 15 2013” “M. Tulloch J.A.”

“EAC” “I agree E.A. Cronk J.A.”

“I agree S.E. Pepall J.A.”