WARNING

The court hearing this matter directs that the following notice should 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . 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.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

Court File No.: Simcoe Y11-119 Date: 2013-03-01 Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen

— AND —

B.H., a young person

Before: Justice K.A. Sherwood

Heard on: November 6, 2012, January 22, 2013 and February 26, 2013

Reasons for Decision released on: March 1, 2013

Counsel:

• Erica M. Quayle for the Crown
• Edward Kiernan, counsel for the accused B.H.

SHERWOOD J.:

[1] Guilty Plea and Crown Application

[1] On November 6, 2012 B.H. plead guilty to one count of sexual assault contrary to section 271 of the Criminal Code. The Crown proceeded by indictment, and prior to the young person entering his plea had given notice to the defence that it would be seeking a serious violent offence designation pursuant to section 42(9) of the Youth Criminal Justice Act. That application was heard on January 22, 2013. The young person contests the Crown's application.

Facts

[2] At the time of the offence B.H. was 17 and in grade 12. A few weeks earlier B.H. had met the victim, R.T. at a local fall fair. R.T. was 13 and in grade 9 at the same school as B.H. attended. D.V., an acquaintance of B.H. was 19 at the time. D.V. had graduated from the same school in September 2010. Prior to November 14, 2011 D.V. and R.T. were unknown to each other. On November 14, 2011 B.H. and D.V. approached R.T. while she was on her school lunch break, and invited her to go with them to get "high". The three of them went to a wooded area near the school and between 11:40 a.m. and 3:00 p.m. they smoked marijuana and drank whiskey. B.H. and D.V. both knew that R.T. was 13 years old. R.T. became intoxicated by both the alcohol and the drug. Both B.H. and D.V. began to fondle the complainant over her clothing. R.T. later stated to police that she had no control over herself due to her intoxication, and was unable to stop the advances by both accused. Both B.H. and D.V then proceeded to remove R.T.'s shorts and her underwear that she was wearing underneath her skirt. They then, one after the other, digitally penetrated her vagina. They pulled up her shirt, removed her bra, and proceeded to lick, suck and lightly bite at her breasts. Both accused then dressed R.T., and due to her intoxication, assisted her out of the wooded area to the roadway. R.T. returned to the school and told a friend what had occurred. The incident was reported to school officials who contacted the police. Both B.H. and D.V. were later arrested. As D.V. was over the age of eighteen at the time of the offence, he was charged as an adult. On a guilty plea D.V. was convicted of sexually assaulting R.T. and has been sentenced to six months in custody followed by two years of probation. B.H. was cooperative with the police and provided an inculpatory statement admitting these facts. It was noted that there were no physical injuries sustained by R.T.

[3] Victim impact statements were provided by R.T. and her mother K.T. In her statement, R.T. states that she has lost trust in people, particularly males and no longer feels safe. The statement provided by K.T. describes more troubling emotional issues exhibited by R.T. including instances of self-harm and depression for which she is receiving treatment. Further details of these victim impact statements will be reviewed later in my analysis.

[4] A pre-sentence report was filed. That report is generally favourable. It indicates that B.H., has no prior youth criminal record. While he comes from a split family, his upbringing was not significantly problematic until he was 14 years old and relocated with this mother. It was then that through his stepbrother he was introduced to marijuana. His mother describes him as being easily influenced, and as a follower. Subsequent to this charge he appears to have experienced a great deal of anxiety, and there was an incident when shortly after the charge he attempted to commit suicide. Also, shortly after this charge he began to access services with respect to substance use and mental health concerns. However, despite his efforts to stop using drugs he resumed doing so. Currently he describes his drug use as casual and although he states a future goal of sobriety, he currently has no plan to reduce his substance use. His mother had ongoing concerns about his substance use and as she felt that he was not putting for the an appropriate effort to deal with this, she took a tough love approach and in August 2012 advised him that he was no longer welcome to reside at her home. He then relocated to his father's home where it is reported that over the last several months his behaviour has improved, perhaps as a result of his father setting clear rules, expectations and boundaries. As a result of this offence, B.H. was expelled from school. He continued his secondary education through an independent learning program and to his credit completed sufficient courses to obtain his secondary school diploma in June 2012. Since June 2012 B.H. has been employed as a cook at a local restaurant, working approximately 25 to 30 hours per week. He has expressed a goal of becoming a cook in the Canadian Armed Forces. B.H. has engaged in some community based services, including 11 sessions of cognitive behavioural therapy to address his stress and suicidal ideation, and more recently some preliminary involvement with Community Addictions and Mental Health services regarding substance use, although there is an indication in the report that he lacks insight into the impact of his substance use and has not followed through with a recent referral to an information session regarding the impact of substance use. B.H. has been heavily involved in competitive hockey since a very young age, and has assisted in coaching minor hockey teams. He is currently playing two games a week and one night of practice in a competitive hockey league. The pre-sentence report indicates that B.H. "did express some level of remorse for his actions and was able to acknowledge that he should not have supplied the victim with marijuana or alcohol, however he appeared to struggle to take accountability for his actions, stating that he felt the victim exaggerated her level of intoxication."

[5] The probation officer suggests that probation services has the ability to provide additional services, including access to counselling, including connection with a counsellor to address the sexual component of his offence, and completion of an assessment to determine the youth's risk level to reoffend. Additionally probation can provide a referral to a youth justice intervention program worker who, in collaboration with probation, would be able to assist B.H. in accessing further information about the Canadian military and the recruitment process. The pre-sentence report suggests that if a custodial disposition were deemed an appropriate sentence, B.H. would be a suitable candidate for a deferred custody and supervision order as he could be held accountable for his actions with additional supports, services and supervision in the community, and that to ensure success in the community he would benefit from a prolonged period of counselling relating to issues of impulsivity, inappropriate sexual behaviour and substance use, which could be accessed through referrals initiated by Probation Services.

[6] In addition to filing a copy of B.H.'s Secondary School Diploma and correspondence confirming some community services that the young person has performed, the defence also filed a report from Dr. Seamus P. Norton, paediatrician, dated October 31, 2012 regarding his consultations with B.H. on January 10, 2010, March 29, 2010 and February 10, 2012. Dr. Norton has found B.H. to have persistent, long-standing symptoms of attention deficit hyperactivity disorder, which he describes as a "chronic mental health disorder characterized by difficulty maintaining necessary levels of attention for daily tasks, managing impulse control, and regulating hyperactivity", a condition that affects multiple brain functions, and may result in functional difficulties including "lack of inhibition (inability to stop one's own behaviour at the appropriate time), limited ability to think flexibly and respond appropriate to situations, lack of emotional control (modulating emotional responses by bringing rational thought to bear on feelings), impaired initiation (ability to begin an activity), problems with planning and organization, and deficits in self-monitoring (inability to monitor performance or responses and to measure actions against some standard of social expectation or requirements for given situations)." Dr. Norton confirms that at times, both before and subsequent to the offence, he has treated B.H. with medication and that B.H. has been cooperative and compliant with his treatment program.

The Law

[7] Section 42(9) of the Youth Criminal Justice Act provides:

s. 42 (9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly.

[8] In an application to have an offence designated as a serious violent offence, the Crown bears the burden of proving, beyond a reasonable doubt, that the offence ought to be so designated. See: R. v. K.G.B., 2005 NBCA 96, 202 C.C.C. (3d) 521 (N.B.C.A.) at para. 22.

[9] The term "serious violent offence" is defined in section 2(1) of the YCJA to mean "an offence in the commission of which a young person causes or attempts to cause serious bodily harm". The term "serious bodily harm" however is not defined in the YCJA. Accordingly, pursuant to subsection 2(2), these words are to have the same meaning as in the Criminal Code.

[10] Bastarache J. confirmed in R. v. C.D., 2005 SCC 78, [2005] S.C.J. No. 79, 203 C.C.C. (3d) 449 (S.C.C.) at para. 20 that "serious bodily harm" in the context of a "serious violent offence" under the YCJA is defined as:

… 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.

This decision clarifies that actual or attempted serious physical bodily harm is not the only criterion for designating an offence as a serious violent offence, as the designation can also be based upon serious psychological harm.

[11] On an application for an SVO designation, the sentencing judge should not consider the effect that such a designation might have on the sentence to be imposed. As Richard J. states in R. v. K.G.B, supra, at para. 27:

The determination of whether a particular offence was committed in circumstances in which a young person causes or attempts to cause any hurt or injury, whether physical or psychological, that interferes to a substantial degree with the physical or psychological integrity, health or well-being of a victim, is a determination that, in my view, must be made without regard to the impact it might have on the sentence to be imposed. Just as the law would not condone a finding that an offender is not guilty simply as a means to justify not wanting to impose a mandatory sentence, so too should the determination of whether an offence is a serious violent offence be made independently of the repercussions the determination may have for the offender.

[12] It should also be noted that there is a distinction between "violent offence" as referred to in section 39(1) of the YCJA as a prerequisite to a young person being committed to custody under section 42, and "serious violent offence" as referred to in section 42(9) of that act. While a "serious violent offence" encompasses requirements of a "violent offence" and would thus satisfy the prerequisite to a custodial disposition under section 42, there are other significant consequences that may flow from an SVO designation. Pursuant to section 42(5) of the Act a deferred custody and supervision order is not available in respect of a serious violent offence. Further, an SVO designation continues to exist as long as the young person's record exists and accordingly a subsequent offence may bring the offender closer to consideration of an adult sentence or, pursuant to section 42(7), upon a finding of guilt on a third serious violent offence the court may impose an intensive rehabilitative custody and supervision order.

[13] As stated by Hackett J. in R. v. J.L., 2010 ONCJ 453, [2010] O.J. No. 4455, 261 C.C.C. (3d) 190 (Ont. C.J.) at para. 63:

…these provisions indicate that Parliament's intention was to create a hierarchy of offenses with generally escalating consequences for young persons as the seriousness of the offence progresses from non-violent, to violent and to serious violence. This hierarchy of offenses and escalating consequences are consistent with and reflect other principles contained in the Act and more specifically, the fact that a sentence must be proportionate to the seriousness of the offence (s. 38(2)(c)) and that meaningful consequences for the offence must be imposed (s. 3(1)(a)(iii) and s. 38(1)).

[14] While there are significant consequences attached to an SVO designation, and while the described hierarchy of offences might infer a presumption of a custodial disposition (See R v. C.D. (2005), supra), it should be noted that an SVO designation does not automatically require an increased punishment, or even a custodial disposition, although a non-custodial disposition would be a result anticipated in only exceptional cases. Conversely, a determination not to designate a committed offence as a "serious violent offence" does not negate the possibility of a custodial sentence if it is otherwise warranted under the sentencing purposes and principles of the Act. (See R. v. K.K., [2011] O.J. No. 3362 (Ont. C.J.))

[15] The wording of section 42(9) in including the word "may" imports a judicial discretion whether or not to designate a finding of causing or attempting to cause serious bodily harm as a serious violent offence. This was confirmed in R. v. C.D. (2005), supra, at para. 21, where the Supreme Court of Canada stated that:

Although the definition of "serious violent offender" is relatively straight forward, even if a young person's actions would appear to satisfy it – i.e. even if a young person causes or attempts to cause serious bodily harm in the course of committing an offence – it does not automatically follow that he or she has committed a "serious violent offence." Instead, pursuant to s. 42(9) of the Y.C.J.A., the Crown must apply to have an offence designated as a "serious violent offence," and the Youth Justice Court to which the application is made is required to hold a hearing before it makes its decision…

[16] While the sentencing court retains a residual discretion on an application for a serious violent offence designation, the YCJA does not set out criteria for the exercise of this discretion. The Ontario Court of Appeal however, in R. v. K.C., 2011 ONCA 257, [2011] O.J. No. 1478, 270 C.C.C. (3d) 20 (Ont. C.A.), has set forth an analytical framework to be applied in the consideration of such applications.

[17] In R. v. M.C., [2011] O.J. No. 4268 (Ont. C.J.), Justice Tuck-Jackson provides an overview of the law relevant to s. 42(9) of the YCJA and in paragraphs 37 and 38 provides a concise summary of the analytical framework for such applications as set out in R. v. K.C., supra, as follows:

37 In its recent decision, R. v. K.C., 2011 ONCA 257, [2011] O.J. No. 1478 (C.A.), the Ontario Court of Appeal has clarified the analytical framework that sentencing judges in this province must apply to those applications. The test to be applied, … may be summarized as follows:

(1) Is there evidence of serious bodily harm?

(2) If so, is there evidence that Mr. C. caused the serious bodily harm? and

(3) If so, is an SVO designation necessary to hold the young person accountable for his offence(s), having regard to the purposes and principles of sentencing under the YCJA, and the circumstances of the offence(s) and of Mr. C.

38 The Court divided the analytical framework into two phases. During the first phase, the sentencing judge must consider issues "(1)" and "(2)", supra. The Court of Appeal in R. v. K.C., supra, referred to this phase as the threshold for designating an offence as a serious violent offence. Once satisfied that there is evidence of serious bodily harm and that the subject of the application caused, in law, that harm, the sentencing judge has no discretion as to whether or not to conclude that this initial threshold has been met. See: R. v. K.C., supra, at para. 91. However, once the Court is satisfied that the threshold established by the definition of Serious Violent Offence in s. 2(2) YCJA has been met, the Court does have a discretion concerning whether or not to make the designation. See R. v. K.C., supra, at para. 45 – 46.

[18] This first phase of an SVO determination involves a narrow "harm based" approach, being a consideration of whether the offence occasioned serious bodily harm, including physical or psychological harm, and the offender's culpability in the causation of such harm. Accordingly in this phase, the court's focus is to be primarily upon the circumstances of the offence and the harm occasioned by the offence, and it is not appropriate to consider the circumstances of the offender beyond those that affect his state of mind at the time of the offence and thus may go to his culpability in causing the harm, or the foreseeability of the harm. In determining whether to designate a committed offence as a serious violent offence the focus of the youth justice court is to be primarily upon the nature of the offence and the consequences to the victim. The effect that the designation would have on the sentencing, and the personal characteristics and circumstances of the offender are not relevant factors to consider in the exercise of the court's discretion at this stage of the sentencing hearing. However, in so much as part of the consideration is whether the harm to the victim, physical and/or emotional, was intended or reasonably foreseeable the court may consider the conduct and mental state of the accused at the time of the offence, but not his personal characteristics or circumstances beyond the offence. Accordingly factors such as developmental delays which impact on the offender's mental state at the time of the offence may be considered. In R. v. W.B., [2003] M.J. No. 487 (Man. Prov. Ct.), in para. 42, the court stated:

The factors that can be taken into account could include such matters as provocation; and whether in a case where serious bodily harm resulted, such harm was reasonably foreseeable. No doubt others will be identified as jurisprudence develops. Perhaps disabling conditions such as fetal alcohol effect will be taken into account. It seems that such factors are relevant to moral culpability which underpins our criminal justice system along with concerns for public safety.

[19] As Hackett J. in R. v. J.L., supra, states at para. 59:

… I find that the judge on an s.v.o. application must consider the role of the young person in both the crime and the causation of harm including both his actions and mental state at the time. The personal characteristics or circumstances of the offender peripheral to the offence are not relevant factors on an s.v.o. application.

And at para. 66:

… I find that the judicial discretion in the determination of a serious violent offence should be based upon the culpability of [the] young person for the particular offence and resulting harm. This requires an assessment of the role of the offender in the commission of the offence and, more particularly, his actions and mental state at the time of the offence and their relationship to the causation of the serious bodily harm. I further find that the personal characteristics and circumstances of the offender beyond the offence are not relevant at the stage of the s.v.o. application. The presence of provocation by the victim, mental illness or disability, consumption of alcohol, drugs at the time, and the inability to foresee the actual harm are all mitigating factors to consider in assessing the young person's culpability and role on such an application, whereas, pre-meditation and the intentional infliction of harm are aggravating factors.

Hackett J.'s comments are particularly applicable to the first phase of an SVO determination as outlined by the Ontario Court of Appeal in R. v. K.C., supra.

[20] The second phase of an SVO determination involves an exercise of the sentencing judge's discretion to determine, whether in accordance with the purposes and principles of the Act, an SVO designation is necessary to hold the offender accountable for their offence. This phase of the determination may include a broader consideration of the circumstances of the offender. As Tuck-Jackson J. in R. v. M.C., supra, at para. 45 explains:

45 Once the threshold definition is satisfied, the sentencing judge must then proceed to consider the broader issue: Is it necessary to make an SVO designation in order to hold the young person accountable for his or her actions. The more difficult issue is identifying what factors the sentencing judge ought to consider as he or she exercises its discretion in this regard. The Court of Appeal in R. v. K.C., supra, indicated that the question to be answered at this phase "could bring into play the whole panoply of factors relevant to youth sentencing". See: R. v. K.C., supra, at para. 79. The Court went on to identify three categories of relevant factors: (1) the circumstances of the offence, including the young person's level of moral blameworthiness; (2) the circumstances of the young person, including the young person's efforts at rehabilitation between the offence and the date of sentencing and the young person's level of risk of re-offending; and (3) the purposes and principles of sentencing under the Youth Criminal Justice Act, including those set out in s. 3 and 38 of the Act.

[21] In paragraphs 48, 49 and 50 of that decision, Justice Tuck-Jackson provides non-exhaustive lists of relevant factors appropriate to the category of "Circumstances of the Offence" and "Circumstances of the Offender" and lists possible sources of evidence for this information. I will canvas those factors relevant to this case later in my analysis.

[22] Accordingly there is a two stage approach to the consideration of an application for an SVO designation. The first phase requires the determination of the "threshold" test, which is to be determined on a narrow consideration of whether or not the offence committed caused or was an attempt to cause serious bodily harm, which can be physical and/or psychological harm, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant. Within that stage of the determination, consideration of the circumstances of the offender should be strictly limited to circumstances that may go to his state of mind at the time of the offence, and thus to their degree of culpability in causing the harm. The second stage of the determination involves the exercise of judicial discretion in deciding whether an SVO designation is necessary to meet the sentencing principles and purposes of the Act, and it is in this phase that the court, in addition to its consideration of the circumstances of the offence and the sentencing purposes and principles of the Act, should consider the broader circumstances of the offender, including: the young person's age and level of maturity; education and cognitive abilities; medical, psychological, psychiatric or other conditions; prior record of offending behaviour; demonstrated remorse; efforts at rehabilitation and progress since the offence; risk of re-offending; any reparations made by the young person to the victim or the community; and time spent in pre-trial detention.

Analysis

Phase One – the "Threshold" for a Serious Violent Offence Designation

(a) Is there evidence of Serious Bodily Harm?

[23] In considering whether there is evidence of serious bodily harm, evidence of such, even hearsay evidence, may be provided by a victim impact statement, viva voce evidence from the victim or a parent, psychological report or other relevant and sufficiently reliable information. See R. v. K.G.B., supra at para. 22; R. v. J.R., [2010] O.J. No. 2813 (Ont. C.J.)

[24] Evidence on the record is not required before the court can conclude that a complainant has suffered psychological harm. Crimes of sexual assault are inherently violent and can and often do have a crippling effect upon the psychological and emotional well-being of the victim. See Moldaver J. in R. v. McF., April 27, 1992, unreported (Ont. Gen. Div.) referred to with approval by Abella J. in R. v. Stuckless, (1998) 27 C.C.C. (3d) 225 (Ont. C.A.). In R. v. E.S.A., 2003 ABPC 86, [2003] A.J. No. 571, the court relied on R. v. Stuckless, supra, to conclude that sexual touching and assaults are by their very nature inherently violent even where a breach of trust is not present or whether or not penetration occurs. Sexual assault is not necessarily a crime of violence but it can be, and often is, and where the victim is a child, psychological harm can be presumed. (See R. v. J.J.A., 2012 ONCJ 544, [2012] O.J. No. 4042 (Ont. C.J.) at para. 12.)

[25] In this case the crown relies on the victim impact statements of the victim R.T. and her mother K.T. to evidence serious bodily harm sustained by R.T. There was no other evidence provided on this issue apart from the description of the offence as provided above and acknowledged by the offender in his plea. Mr. Kiernan, for the accused, argues that this evidence falls below the requisite standard of proof, and accordingly is insufficient to satisfy the threshold phase of an SVO determination.

[26] The victim impact statement provided by R.T., prepared approximately one year after the offence, states that she no longer trusts anyone at all, and that she has stopped talking to all of her male friends because she is scared of this happening again. She describes how she no longer feels safe anymore, she is constantly scared, even terrified of just walking alone, and that she is now scared of most men and has no trust for them. R.T. does not describe any other impact upon her family, her friends, schooling or her out of school activities.

[27] The victim impact statement provided by K.T. describes a more extensive impact upon her daughter. She relates that since the offence R.T. has become withdrawn, has had to switch schools because of bullying from this incident, and has been the subject of false rumours; she ran away from home for a week during the summer of 2012; following the offence, she was taken to the hospital for a sexual assault examination and since then she has had several more trips to the Emergency Room as she has cut herself several times on her arms, legs, stomach, and hips, sometimes requiring stitches; she has stated at times that she will kill herself; she has seen several counsellors and is on antidepressant medication.

[28] The crown's evidence of serious bodily harm could certainly have been augmented by a more fulsome victim impact statement from the victim, viva voce evidence, and/or reports from the victim's attending medical health professionals, or counsellors. However, given the victim's age, apparent vulnerability and the nature of the offence being a sexual assault, it is not uncommon that such a victim may be reticent about sharing her experience and the impact upon her. The information of the mother in her statement is sufficient to substantiate that the offence has interfered with the health or comfort of the victim in a grave or substantial way and has had a profound and lasting effect on her.

[29] Accordingly, I am satisfied and find that there has been serious bodily harm to the victim.

(b) Did the young person cause the serious bodily harm?

[30] This question involves a consideration of the actions of B.H. in committing the offence and of circumstances relating to his state of mind at the time. The victim was known to B.H. at the time of the offence, as they had met a few weeks prior. He knew that she was only 13. He and D.V. approached her and invited her to come with them to get high. They took her to a secluded wooded area. They gave her marijuana and whiskey to the point where she became intoxicated, and they then engaged in a sexual assault of the victim, escalating from fondling of her breasts over her clothes, to removing her shorts and underwear, to both digitally penetrating her vagina, then lifting her shirt, removing her bra and then proceeding to lick, suck and lightly bite her breasts. There was no evidence of provocation, there was no evidence that B.H. was any less involved in the offending behaviour than his adult co-accused D.V., or that he was somehow led or coerced into the offending behaviour by D.V., or that his actions were any less of a contributing cause of the harm to the victim. There was no evidence that B.H. at any time tried to intervene to stop the sexual assault or to prevent D.V.'s participation in it.

[31] With respect to circumstances relating to B.H.'s state of mind at the time of the offence, there is evidence that he was participating in the drinking of the whiskey and smoking of marijuana, but nothing as to the extent of same. While it may be inferred that this could have resulted in some impairment on his part, there is nothing to indicate to what extent he was impaired or the effect that had upon his involvement and culpability in the commission of the offence. The report of Dr. Norton indicates that as a result of his persistent ADHD, B.H. may have functional difficulties including lack of inhibition, limited ability to respond appropriately to situations, lack of emotional control, and deficits in self-monitoring, but does not provide any correlation of these functional limitations to B.H.'s active involvement in the offence. While these limitations may somewhat reduce B.H.'s moral blameworthiness, which is consistent with the scheme, purpose and principles of the YCJA, they are not sufficient, in light of the circumstances of the offence and the high degree of B.H.'s active participation in the commission of the offence, to conclude that his actions and commission of the offence did not cause the emotional harm to the victim.

[32] In the circumstances of this offence, and considering as well the circumstances of the offender, but only as to his state of mind at the time of committing the offence, the harm occasioned to the victim, who was only 13 at the time, was, or should have been, reasonably foreseeable, even to B.H.

[33] Accordingly, I am satisfied and find that the actions of B.H. in committing the offence caused the serious bodily harm to the victim.

Phase Two – the Discretionary Determination to Make an SVO Designation

(c) Is an SVO designation necessary to hold B.H. accountable for the offence?

[34] In this stage of the consideration the court has discretion to determine whether an SVO designation of the committed offence is necessary to hold the offender accountable for his offence.

[35] The Ontario Court of Appeal in R. v. A.O., 2007 ONCA 144, [2007] O.J. No. 800 (Ont. C.A.), at paras. 42 and 47 addressed the concept of "accountability" as follows:

…Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society.

In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, "the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct". We see no other rational way for measuring accountability.

[36] In considering the circumstances of this offence, it was significant, and by its nature, a violent offence. The participation of B.H. in committing the offence with D.V. was at least equal to that of the other offender. There are aggravating factors in the commission of this offence by B.H. – there was a significant age difference between the offender, B.H. who was 17 at the time and the victim, who was only 13; the victim and the offender were known to each other as they had met a few weeks prior to the offence; the victim was provided alcohol and marijuana by the offenders, which by her account lead to her intoxication and inability to fend off their advances; the victim was invited by the offenders away from her school during her lunch break and to a secluded area where the offence took place; and the sexual assault involved the removal of items of the victim's clothing, fondling, kissing, biting and digital penetration by both offenders. These aggravating factors relating to the commission of the offence speak towards exercising my discretion to make an SVO designation. I must also consider however, that while amounting to a deliberate and significant violation of the integrity and well-being of the victim, the offence was not in the category of the "worst offence of sexual assault". The commission of the offence did not involve a breach of trust, coercion, the use of overt force or violence, penile penetration, repeated assault, or the infliction of physical bodily harm and disfigurement.

[37] While I have found that the actions of B.H. in committing this offence have caused serious harm to the victim, I must as well consider the extent of that harm in this phase of the SVO determination. As I have alluded to, the information directly from the victim as to the impact of this offence upon her is limited. She has certainly sustained significant and long lasting effects, however these are not of the worst imaginable, and while it is easily inferred that she will continue to experience an impact from this offence, there is no evidence, expert or otherwise, to assist the court in determining what the extent of the long term impact upon her will be. As the burden in this application rests upon the crown it would be unfair and improper to speculate further upon the extent of future impacts upon the victim and to hold that against the offender.

[38] The pre-sentence report raises some concerns about B.H's substance use, his apparent lack of insight into the impact of same, and his current commitment to addressing that issue. The Crown suggests that this may impact upon his prospects for rehabilitation and thus increase the risk of his re-offending. The information to support this suggestion is at best sparse. While the parties all participated in drinking alcohol and smoking marijuana on the day of the offence, there is nothing to indicate that B.H.'s use of drugs was otherwise a causal or contributing factor of the offence. There has also been no formal assessment conducted of the offender's level of risk to re-offend. Again, as the onus on this application rests upon the Crown, I am not satisfied to the requisite standard that there is any elevated risk of B.H. re-offending.

[39] The pre-sentence report also speaks of a number of positives regarding B.H. To his credit, subsequent to the offence he has completed his secondary education; he has obtained and maintains steady employment which has been described as a positive influence in his life; he has relocated to his father's home and seems to be responding positively to the rules, expectations and boundaries that have been set for him in this new arrangement; he has a career plan ahead of him which may involve enrolment in the Canadian Armed Forces; he has accessed some community supports and services including attending for cognitive-behavioural therapy; he has expressed remorse; he has been engaged in appropriate recreational activities; and he too has experienced significant effects from his participation in this offence, including anxiety and an incident of attempted suicide. In general, the information in the pre-sentence report supports that B.H. may have the ability to achieve effective rehabilitation and through this, accountability for his offending behaviour. The report also speaks of the further services that may be available for B.H. to facilitate further progress.

[40] In light of the evidence concerning the circumstances of the offender, B.H. cannot be classed as a "worst offender".

[41] This analysis is not to say that an SVO designation must be reserved for the "worst offences" with the "worst impact" upon the victim(s) committed by the "worst offender", but the court in exercising its discretion to make an SVO designation must at this stage of the determination consider, together with the principles and purposes of the Act, the circumstances of the offence, the harm occasioned by it, and the circumstances of the offender.

Conclusion

[42] On a balanced analysis of all of the factors noted above I am satisfied that while the Crown has discharged the burden of establishing that the offence committed by B.H. is a violent offence and meets the "harm-based" threshold necessary to support a designation of serious violent offence, I am not satisfied to the requisite standard that such a designation is necessary, in all of the circumstances of this case, to achieve the purposes of youth sentencing, and in particular to hold B.H. accountable for his offending behaviour.

[43] In making this determination I am in no way diminishing the significant impact that this offence has had upon the victim. I am discharging my obligation to exercise judicial discretion in making a determination of the SVO application.

[44] Accordingly the Crown's application for a serious violent offence designation is dismissed.

Released: March 1, 2013

Signed: "Justice K.A. Sherwood"