Court File and Parties

Information No.: 12-Y000026 and 12-Y-000027

Ontario Court of Justice

Between:

Her Majesty the Queen

Crown

- and –

C.S.

Accused

Reasons for Sentencing

Appearances:

A. Paparella – Counsel on behalf of the Crown

L. Afolabi – Counsel on behalf of the Accused

Plea Date: 2nd October, 2012

Reasons for Judgment Date: January 3, 2013

Thibideau, J.: (Written)

The Offences

[1] The young person C.S., date of birth the […] 1998, pled guilty to 16 counts of sexual assault of five-year-old M.G. between the 1st of November 2011 and the 1st of February 2012, and one count of touching for a sexual purpose between the 1st of September 2011 and the 17th of April 2012.

The Offence Facts

[2] Both C.S. and M.G. were students at the same public school in Caledonia Ontario. C.S. was a school bus monitor and M.G. was one of his charges. All offences occurred on the school bus over a period of some seven months focussing on a period of some three months.

[3] The statement of agreed facts filed making out the offences reveals a pattern of conduct whereby C.S. and M.G. always sat together on a two seat bench. The rides from the school to home were longer than the rides from home to school, and the offences all occurred on the rides home, two days weekly. The only contact between them occurred on these bus trips. The sexual assault offences consisted of C.S. performing fellatio on M.G., and a one time showing of his own penis to M.G.

[4] In his statement C.S. recounted that the sexual activity took place after a month or two of bus rides when C.S. gained the trust of M.G. by acting as his friend. There were no threats, coercion or bribes but he did tell M.G. not to tell anyone about what was going on. There is a conflict in the material as to how and why the activity stopped. One version is about a self-realization that the conduct was wrong and stopped about a month before the investigation began. The other version is that the investigation essentially stopped the conduct. Another five year old child also told the police about similar but not as serious sexual interaction with C.S.

The Offender

[5] C.S. is now, over a year after the offences, 14 years of age. He has been in the community since the charges were laid in the spring of 2012. For almost all of that time he spends his weekdays living with his grandparents in another jurisdiction attending school in that jurisdiction. He spends weekends with his parents. This situation arose because shortly after these charges were laid C.S. was found to have acted sexually inappropriately with his younger brother.

Presentence Report

[6] A presentence report was detailed and incisive, providing the following relevant information.

[7] C.S. comes from an intact family of five with both parents being professionals in the community. He was homeschooled until entry into the traditional public school system in grade six, a pattern in the family. According to his parents this late entry into the socialization process at school may have contributed to C.S. being rather a loner and being bullied at school. One of his few close friends, of similar age, engaged with C.S. in substantial sexual activity for the school year prior to these offences. This report reports the parents view the friend as introducing C.S. to sexual behaviour, relying on the lack of maturity and experience of C.S. to take advantage of him. That child moved residence and school terminating the relationship. There is another view with respect to this relationship outlined in the section 34 assessment. It is noteworthy that the events we are dealing with began shortly after.

[8] Since being charged C.S. has lived with his grandparents and with his parents in two communities without incident. All adults involved have monitored his behaviour and have engaged him in useful activities, apparently successfully. Apart from these offences, the behaviour of C.S., then and now, at school and in the community, has been without incident. He is generally viewed as a rule follower without behavioural concerns outside of sexual concerns.

[9] The parents have cooperated with the police and the Children's Aid Society investigations, making C.S. available for interviews and engagement. They also obtained a private psychological assessment which is not filed with the court, and arranged for counselling early on. The parents feel overwhelmed, are looking for answers, and are engaged with service providers in an open way.

[10] The plan is for the status quo to continue. C.S. will continue to live with his grandparents and go to school in a different jurisdiction and return home on weekends to visit with his family. Service provider engagement will continue.

[11] While socialization has always been a difficulty for C.S. academic progress at school has not. In both jurisdictions he has been in the academic stream and now is engaging more in school life, although his loner trait is still evident. Those who know – e.g. School principal – are aware of the circumstances of C.S. and these charges. He is monitored accordingly.

[12] C.S. has no youth court record and no occurrence reports are known. He has apparently observed the terms of his release set more than a year ago.

[13] During the PSR process C.S. expressed remorse for what he did, stating he did not fully understand what he was doing or the impact of what he was doing. Presently there is counselling but it is not focussed and specific to sexual offence behaviour, which is required in the opinion of the person preparing this report. Appropriate service provider needs are available in both jurisdictions where C.S. currently lives.

[14] The preparer of the PSR had the advantage of reading a section 34 assessment for his report. It is the opinion of the assessor that a community based disposition is not appropriate at this time, assumedly because of the content of the section 34 assessment, no other reason being given.

Section 34 YCJA Assessment

[15] The court has the advantage of a full section 34 assessment. It is comprehensive and derives information from a large number of sources including C.S., various family members, CAS representative, the individual counsellor, the Crown Attorney's office, school records, and the results of a significant number of psychological tests, and the results of the family-obtained private psychological report.

[16] This assessment confirms the open and help-seeking attitude of the parents. It was observed the C.S. was very open and responsive to the assessment process himself.

[17] There is one significant noted discrepancy between the parental view of how things came to be and this assessment. The parents see C.S. as the victim of another boy's predatory behaviour for the sexual interaction that occurred with a school mate before these events and charges. The assessors are satisfied that the sexual interaction between the two was consensual between two boys of equal power and involvement. It is apparent that the CAS investigation came to the same conclusions independently of the assessors.

[18] This assessment also confirmed the positive home environment before and after these events, a home environment that is loving with committed parents and stability. C.S. had no specific antecedents, social, psychological or physical disabilities. Home schooling was seen by C.S. as impeding his socialization with others in the community, particularly when he started school, having to catch up socially. Shyness contributed to bullying.

[19] It is noted in the assessment that the home event where C.S. was sexually inappropriate with his younger brother occurred with a five year old child (same age as the others) with self-gratification as the primary purpose. The assessment also documented more fully the planned and deliberate nature of the sexual acts leading to the numerous convictions. The sexual offending was seen as calculated, relying on the authority afforded by the position of C.S. as a bus monitor. Troubling was the fact that the disclosure to the CAS worker was seen by that worker as "matter of fact", lacking remorse.

[20] While there is no clear conflict with the family-obtained assessment, some of which is referred to in the section 34 assessment, it is not controverted that the parental assessment was not offence specific nor did it explore the nature of the sexuality of C.S. as did the section 34 assessment. Both assessments seem to agree that C.S. seeks approval in social situations, denies or downplays troubling issues for himself, and has difficulty knowing what to do with socially unacceptable impulses. He is seen as a person who is overly organized, overly self-restrained in his lifestyle and uses his social and personal inadequacies to gain peer sympathy and acceptance. Mature coping strategies and insight are lacking.

[21] Problematic for repeated similar behaviour in the future is the following.

C.S. sees the biggest downside to his criminal behaviour as getting caught, not what effect it has had on others or himself. He is particularly autocratic and rigid towards younger children, yet he is more comfortable with younger children than his same age peer group. He excels in a self-imposed or exterior-imposed rigid and structured lifestyle.

[22] He was assessed as feeling guilt but not appreciable shame for what he has done. As a result significant positive change will require offence specific treatment.

[23] It is also noteworthy that he chose the main victim because C.S. perceived him as vulnerable and needier than others, appearing less intelligent, less liked, than others. Predatory skills are evident.

[24] Various disclosures made by C.S. during the course of the investigation and assessment are in some significant ways at odds. His disclosure to the police demonstrate less culpability on his part, involving realization of wrong and voluntary termination of activity, although the timelines in the police disclosure are larger than the timelines in the assessment disclosure with respect to both planning and implementation.

[25] C.S. is driven to illegal conduct by sexual drives that find no other outlet of a more appropriate nature. He has difficulty internally assessing right behaviour from wrong behaviour, particularly sexual behaviour. He is not appropriately internally controlled by moral values and a code of conduct.

[26] C.S. has strengths. He continues to live in a supportive and stable home environments with nuclear and extended family. He continues to have appropriate attention and monitoring by adult family members. Other than this kind of behaviour C.S. has had appropriate behaviour in the community over a significant period of time.

[27] Academic performance has been consistently good without problematic school behaviour. Socialization skills are improving. His ambivalence over what is right conduct and what is wrong conduct is reducing. He has an internal strong desire for acceptance from others and conformity to social norms. A real, if not fully comprehensive, form of remorse is present.

[28] There are weaknesses. Essentially C.S. presently has some high risk factors for reoffending.

[29] He has deviant sexual interests with unwillingness to address these interests. He has some attitudes supportive of sexual offending, e.g. lack of understanding of affect on others. The very nature of these offences are problematic with respect to the choice of victims, their age and vulnerability.

[30] These offences were not one-off in nature, but were rather multiple over a period of time with a fair degree of thought and planning involved.

[31] There are few realistic prevention strategies currently, except intensive monitoring. Sex offence specific treatment has not begun. He has learned to use trust and authority to get sexual gratification. This must be unlearned. Risk of detection was not a significant deterrent factor in his behaviour given the circumstances. He sees his sex needs as high propriety, while victim impact is not. His moral compass is not properly adjusted. He has underdeveloped empathy. His attraction to males conflicts with family values and his religious principles, leading to less likely help seeking than would otherwise be the case.

[32] The overall global assessment was that he is at moderate risk to reoffend in the same way and this requires future work and safeguards. Essential will be the following:

1. Sex offence specific treatment
2. Help in developing social skills and coping mechanisms
3. Sexuality counselling
4. Help in developing more appropriate and satisfying peer group relationships to reduce his emotional isolation and feelings of inadequacy
5. Behaviour supervision will need to continue until there are assurances it is no longer needed or can be reduced
6. A ban on non-supervised interaction with younger children is needed to protect from harm

Victim Impact Statements

[33] Victim impact statements were filed by the primary victim and his family members and by the family members of the child for whom evidence was agreed upon and placed before the court, but without findings of guilt. The most significant common theme arising from the statements is the sense of a child's innocence lost, followed by trust betrayed, calling into question the ability to trust others in the future with the safe care of a child.

[34] For the present there are visible emotional results for the two boys and their families from what has happened. The future is unclear. Some children are more resilient than others. Parental questions arise about how each child will cope in the future with the consequences of being victimized. Questions about the ability to participate in healthy relationships and to overcome bad memories are present.

[35] Each family has a child stressed and anxious, feeling less safe, now worried in everyday situations where a child should not be worried. Each family has lived for some time with the unknowns and emotional upset, stresses, and unwarranted self-blame that daily tests the various family relationships. As one family member said "for almost a year now our family has been shrouded in sadness and indescribable nightmare that doesn't end." Each person's world has been changed for the worse.

[36] Emotional harm is clear and palpable.

The Sentencing Process: Fundamental Sentencing Principles of the YCJA

[37] The primary and overriding purpose of sentencing in youth matters is to hold the young person accountable for the commission of offence through the imposition of just sanctions that have meaningful consequences and promote rehabilitation and reintegration into society thereby contributing to the long-term public protection.

[38] More specific principles under the umbrella of the primary principle are these:

S.38(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is mostly likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.

[39] The court is not permitted to commit a young person to custody unless certain criteria are met as specified in the Act as follows:

S.39(1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

(a) the young person has committed a violent offence;

(b) the young person has failed to comply with non-custodial sentences;

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

(2) If any of paragraphs 1(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

(a) the alternatives to custody that are available;

(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and

(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

(8) In determining the length of a youth sentence that includes a custodial portion, a youth justice court shall be guided by the purpose and principles set out in section 38, and shall not take into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under section 94.

[40] The court must use a sentence of incarceration as a sentence of last resort after all alternatives to custody have been considered and rejected as not being appropriate and in keeping with the sentencing principles and considerations in the Act.

The Positions

The Crown

[41] The Crown takes the position that only real custody can satisfy the various sentencing considerations particularly because of the deliberate nature of multiple acts over time, the disparity of ages between perpetrator and victim, and the makeup of the young offender which makes reoffending a real and substantial risk. The Crown argues that incarceration is possible under s.39(1)(a) – commission of a violent offence, and s. 39(1)(d) – exceptional circumstances.

The Defence

[42] The defence takes the position that a proper sentence is a deferred custody and supervision order under s.42(2)(p) of the Act which requires that a sentence term not exceed six months for a non-serious violent offence as defined in s.2(1) of the Act. It is acknowledged that the offences here are not serious violent offences as so defined.

[43] The defence further argues at s.39(1)(d) is not available for sentencing for these offences, the only gateway being through s.39(1)(a), the commission of violent offences. Probation should follow the deferred custody order. The defence asserts that once s.39(1)(a) is accepted as a gateway to incarceration consideration for these violent offences it is not proper to consider the alternative gateway of s.39(1)(d) because the criteria for incarceration under that section are separate and distinct from the criteria in the other. In short, no overlap of categories is permitted.

The Law

[44] The court is required to first determine whether incarceration is available as a sentence and then determine whether it is the only available sentence applying the principles and considerations mandated by the Act. All of these offences occurred as a result of grooming and manipulation without overt threats or physical harm. Is this sufficient for consideration of an incarceration sentence keeping in mind the s.39.(1) gateways to custody?

[45] The Crown and defence both agree that a custody sentence is a sentence available for these offences. They differ on the legal pathway to that sentence consideration. The defence argues that the correct and only pathway is a s.39(1)(a) pathway – the young person has committed a violent offence.

[46] There have been cases where significant sexual criminal behaviour has been determined to cause bodily harm of a psychological or emotional nature. For instance significant sexual behaviour of a young offender related to two younger boys in a role model scenario over a period of time, with one offence after arrest and release for the first offences, on bail for four years.

[47] On appeal the court held that such offences were serious violations of sexual integrity and caused substantial psychological harm. Inferentially the court relied upon the violence of the offence as the gateway to a custody sentence.

R. v. J.B. (2004) 2004 BCCA 487, 189 CCC (3d) 528 (BCCA)

[48] Likewise in Ontario at about the same time Clark, J. in Re: The Queen v. P.H. 2004 ONCJ 346, 193 CCC (3d) 424 (OCJ) found that sexual activities are all inherently violent acts triggering a consideration of custodial disposition. S.39(1)(a) was the express gateway to a custodial disposition.

[49] More recently Hearn, J. accepted and found that several sexual assaults with three younger boys of lesser age in a change room over a three to four day period, including invitation to touching and touching amounting to incomplete masturbation, coupled with video recording of one episode, were events constituting violent offences for s.39(1)(a) custody disposition purposes. He went on to specifically find that the activity did not constitute an exceptional case with the result that s.39(1)(d) could not be a gateway to a custodial sentence.

R. v. C.B. [2010] O.J. No. 1623

[50] More recently DeFilippis, J. in R. v. A.J. 2012 ONCJ 544 provided a comprehensive and incisive canvassing of the law in determining a fit sentence for a youth offender charged with eight counts of sexual assault of two youths both under 14 years of age, while he was older, complete with masturbation, oral and anal sex resulting in multiple convictions for sexual assault and other sexual offences. In that case the Crown sought a s.39(1)(a) violent offence pathway to a custodial sentence without argument to the contrary from the defence. That court acknowledged and followed the Supreme Court of Canada in R. v. C.D.; R. v. C.D.K. 2005 SCC 78 in determining that sexual assault can constitute a violent offence within the meaning of s.39(1)(a) provided certain characteristics are present.

[51] In that case the Supreme Court of Canada provides the definitive reasoning in determining whether an offence is a violent offence, thus attracting consideration of a custodial sentence under s.39(1)(a) of the YCJA.

[52] In that case two young offenders were found separately guilty of offences the Crown argued were violent – arson to property and dangerous driving – enabling the court to consider a custodial sentence. Both persons appealed to the Alberta Court of Appeal which upheld the sentences. On appeal to the Supreme Court of Canada the custodial sentences were quashed and the matters were remitted back to the trial court for further sentencing considerations based upon new principles. Those new principles summarized are as follows:

1. The term "violent offence" is not defined in either the Youth Criminal Justice Act or the Criminal Code of Canada. The definition requires judicial interpretation and definition.

2. The definition of violent offence as it pertains to s.39(1)(a) of the YCJA previously used "an action is violent if it causes bodily harm, or is intended to cause bodily harm, or if it is reasonably foreseeable that the action may cause bodily harm". However this was determined no longer to be a proper definition. Substituted is the new definition of violent offence, "an offence in the commission of which a young person causes, attempts to cause, or threatens to cause bodily harm".

[53] In this case here today the narrow issue is whether or not, absent actual physical coercion, absent threat of physical violence, the sexual acts making out the various offences can be a violent offence for purposes of s.39(1)(a) of the Act. In deciding this the Supreme Court of Canada has set out deciding principles:

1. The meaning of violent offence must be connected to the statutory definition of serious violent offence – which does exist – but it is not appropriate to interpret the term violent offence solely in that context.

2. The lack of statutory definition requires the creation of a judicial definition.

3. Whatever dictionary definitions are used to assist in defining violent offence, the philosophy and content of the Youth Criminal Justice Act requires a necessarily narrow definition, particularly the intent to reduce overall reliance on custodial sentences for young offenders.

4. The correct approach is to use a personal harm based definition as opposed to a force based definition. In short, look to result – is the harm done, not was force used, is the proper question.

5. The Act considers offences of both physical and psychological harm to be examples of violent behaviour as relevant to continued custody of an accused person before trial and therefore consistency and uniformity requires that both physical and psychological harm be considered for violent offences for s.39(1)(a) purposes.

[54] The result is this. It is now mandated law that if there is, arising from the criminal act, a physical or psychological harm before the court, properly proven, s.39(1)(a) is the gateway to consideration of a custodial sentence.

[55] The question arises, how does the Crown demonstrate that the requisite physical or psychological harm is present?

[56] In order to make out the requisite harm – in this case psychological harm – the Crown must prove the harm exists beyond reasonable doubt. Such harm is not presumed. However in doing so, the Crown need not present expert evidence or even formal testimony subject to cross-examination, to prove the requisite harm. Less stringent evidence, properly provided, is sufficient.

[57] The facts of the offence coupled with other evidence showing emotional or psychological harm can meet the standard of proof test, for example, victim impact statement evidence.

R. v. Gardiner

R. v. J.L.W. 2011 ABPC 368, para 35

R. v. T.F. 2008 NWTTC 11, para 12

[58] In this case the acts complained of were not physically violent. However, the circumstances of the acts, including the frequency over a substantial period of time, assist in proving psychological harm. But these facts by themselves are not sufficient, despite some judicial thinking to the contrary, to prove the necessary harm. The victim impact statements and the interview reports filed as part of the evidence before the court, added to those facts, complete the Crown evidence required to make out the necessary harm.

[59] The victim, months after the offences, described how he felt very scared then and now. He has feelings of not being safe and being worried – worried about seeing the offender, worried about what way he will grow up. He fears riding the school bus without his sister. He has recurring dreams about what happened. He fears being in the presence of older boys.

[60] His sister describes how her family members were crying all the time, with the drawing of an unhappy family and a crying family. The victim is described as having a spirit crushed and changed, no longer happy and outgoing. These detailed descriptions of how the emotional life of the victim has negatively changed is more than sufficient to complete the evidence before the court to make out psychological harm on a beyond reasonable doubt test so that the criteria for demonstrated harm is made out for a s.39(1)(a) gateway to consideration of a custodial sentence.

[61] Here it is not axiomatic that the facts supporting a s.39(1)(d) exceptional circumstances gateway to a custodial sentence exists. Such a gateway must be founded on the facts of the offence only, without considering the circumstances of the offender.

R. v. W.(R.E.) (2006), 205 CCC (3d) 183

[62] There are cases where both the s.39(1)(a) and the s.39(1)(d) pathways have been found to be operative together, or could be operative together.

R. v. B.(N.) 2011 ONCJ 183

R. v. K.O. 2012 NLCA 55

[63] But the criteria for the two gateways are different. S.39(1)(a) is a harm-based pathway for a violent offence. S.39(1)(d) requires an exceptional case with respect to an indictable offence with aggravating circumstances requiring a custodial sentence to conform with the purpose and principles of the Act. A custodial sentence under s.39(1)(a) is expressly not automatic by reason of s.39(2) of the Act. For s.39(1)(d) offences it is implicit that a custodial sentence is automatic. That being said Wells, J.A. writing for the Court of Appeal in R. v. K.O. supra at paragraph 53 of the judgment was of the view that the required consideration of reasonable alternatives to custody in accordance with the principles and purpose of s.38 of the Act does not make a custodial sentence automatic even if there is a finding under s.39(1)(d), with the result that no subsection of s.39 makes it "incumbent" on the youth justice court judge to impose a custodial sentence even if there is a specific finding that the offence fell within any of the four gateways to a custodial sentence. As Wells, J.A. pointed out this appears to be in accord with the thinking of Bastarache, J. speaking for the majority for the Supreme Court of Canada in R. v. C.D. supra where at paragraph 39 of that judgment he makes it clear that there are four gateways statutorily mandated but none of those gateways result in an automatic required custody order. The usual consideration of a non-custodial sentence as mandated by the scheme of the Act must take place before the imposition of a custodial sentence. It is implicit in the Crown's position that a s.39(1)(d) finding assists the Crown by making a custodial sentence mandatory. This is not so.

[64] While there is an abundance of serious concerns with respect to the facts of this case – planning and grooming, multiple offences of significant sexual nature, the lesser but still existent position of trust, grave psychological consequences of a continuing nature – it is not clear and compelling that s.39(1)(d) exceptional circumstances regarding this offence exist. It is not clear that this is one of those compelling cases where the aggravating circumstances make it necessary that the custodial sentencing gateway is available. This does not take away from the serious nature of the multiple offences, particularly with respect to the sexual acts done. However, there is an absence of physical force, threats or coercion. There is also an absence of physical injury.

[65] There is another consideration with respect to a s.39(1)(d) finding. Part of what might shock the community sense of what is proper justice would be the lack of any other gateway to a custodial sentence consideration. The presence of another gateway, s.39(1)(a), violent offence commission, may of itself result in a community perception that the last resort section s.39(1)(d) gateway is not required. In fact Rosenberg, J.A., in R. v. W.(R.E.) supra at page 198 set out the Court's conclusions about the law concerning the s.39(1)(d) gateway as follows:

• The object and scheme of the YCJA and Parliament's intention indicate that the Act was designed to reduce the over-reliance on custodial sentences that was the experience under the YOA. See R. v. C.D.; R. v. C.D.K. supra at para. 50.

• An expansive definition of "exceptional cases" would frustrate Parliament's intention to reduce the over-reliance on custodial sentences.

• Section 39(1)(d) can be invoked only because of the circumstances of the offence, not the circumstances of the offender, or the offender's history.

• Exceptional cases are those where any order other than custody would undermine the purposes and principles of sentencing set out in s.38. Put another way, s.39(1)(d) is intended to describe the rare non-violent cases where applying the general rule against a custodial disposition would undermine the purpose of the YCJA.

• Exceptional cases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can be justified.

• One example of an exceptional case is a case where the circumstances are so shocking as to threaten widely-shared community values.

[66] What is particularly noteworthy for our purposes is the conclusion that s.39(1)(d) offences are intended to be for "rare non-violent cases" where applying the general rule against a custodial disposition would undermine the purpose of the YCJA. In this case the offence is violent and covered by the s.39(1)(a) gateway. In that same case the Court of Appeal at page 200 made it clear that even if s.39(1)(d) applied, the sentencing court must consider the deferred custody and supervision option under s.42(5). In short, the gateway focuses on the circumstances of the offence, the sentence result from that gateway must focus on the circumstances of the offence and the offender as well.

[67] Sentencing with respect to young offenders in sexual assault cases with a spectrum of varying facts varies from significant periods of custody to non-custodial sentences. Factors affecting sentence, with respect to the offence which amount to exceptional circumstances include the use of force or threats, penetration, high degrees of position or authority or trust, disparity in ages, length of time and frequency of occurrences, and resultant physical or psychological harm. In this case some of those elements are present in varying degrees, as previously discussed. However on a global overview basis it cannot be said that what occurred here is so exceptional as to constitute the clearest of cases, which is required as the essential criterion. The offence circumstances must be aggravating indeed, shocking to the community. In context here this is not so. This is not to take away from what has happened and what the consequences have been. But the proper gateway to a custodial sentence on the facts of this case must be only s.39(1)(a) – the commission of a violent offence.

[68] Perhaps in practical terms it matters little. Like the Supreme Court of Canada our own Court of Appeal has decided that the restrictions on the imposition of a custodial sentence for any offence that qualifies for a custodial offence is the same for all four gateways. Simply because s.39(1)(d) is a residual category for imposing custody is not reason to interpret it so as to render the limits on custodial sentencing, applicable to other parts of s.39(1) ineffectual. In determining what is a fit sentence for all gateways the circumstances of the offence and the offender must be considered with aggravating or mitigating factors appropriately weighed.

R. v. W.(R.E) 2005 CCC (3d) 183 (OCA)

[69] Where an offence is encompassed by the first three gateways it is less likely, if at all likely, that s.39(1)(d) the exceptional circumstances will apply.

R. v. W. (R.E.) supra para 38

R. v. C.D., R. v. C.D.K. (SCC) supra

Resolution

[70] From the foregoing it is clear that a s.39(1)(a) violent offence has been committed such that the gateway to a custodial sentence is available under that subsection of the Act. In determining whether or not a custodial sentence is appropriate, and the nature of that custodial sentence, the aggravating and mitigating circumstances of the offence and of the offender are to be weighed.

[71] With respect to the offence virtually all of the circumstances are aggravating. Summarized they are these. Multiple serious and substantial sexual acts, over a significant period of time, committed by a person with some authority, grooming the victim for the offences. The young age of the victim in itself is an aggravating circumstance. The results of these multiple acts are emotionally devastating for the individual victim involved and that emotional impact has had a ripple effect among family members. This psychological or emotional harm is something that will continue for some time, the exact extent of which is yet to be determined. However, there was no physical force, no physical injury, no threats or intimidation.

[72] The offender was 13 years old at the time of these offences, an age on the lower end of the scale of responsibility for persons responsible for criminal behaviour under the Youth Criminal Justice Act. In reaching puberty, the offender has not been able to channel his sexual drive in a positive and non-criminal fashion. He is described as not appropriately internally controlling his behaviour by a set of appropriate moral values and an appropriate code of conduct. Almost immediately after the discovery of these offences and the charges being laid, he was sexually inappropriate, on a much lesser scale, with a younger brother. Remorse exists, but it is qualified and self-focused. He lacks true empathy for the victim.

[73] However, this offender has no previous criminal record and he has been on release in the community for well over a year without violation of the release terms. He is a member of a family that is not excusing of his conduct, but rather has engaged fully in the rehabilitation process, cooperating with authority figures in the community, removing him to alternative family care outside of the community and engaging their own services for their son. It is undisputed that he has responded positively to the regime imposed upon him by both his family and community organizations. There has been no attempt to hide the conduct nor the risks arising from the conduct from persons in the community that have a need to know including those in the education system. He has particular rehabilitation needs that are currently being addressed, with the sole exception of sex offender specific treatment and counselling. This is not opposed and will follow.

[74] There already exist serious consequences for this offender and they will continue to exist. He has been removed from his normal family setting for about one year. While he is in the weekday day-to-day care of grandparents, nonetheless, he is in a different community, taken from his school, his neighbourhood and his nuclear family. He is closely monitored in both homes and he is restricted in what he can do on a daily basis. It cannot be said that life goes on as usual for this young offender in his current circumstances.

[75] The result is that there is an extremely significant support system in place for two purposes – to monitor and control behaviour and to engage this offender in the rehabilitation process. This has been ongoing for a year without untoward result. All professionals agree this kind of monitoring and rehabilitation process is crucial for protection against reoffending. Keeping in mind the fundamental principle and the other principles of sentencing set out in the Act, weighing in the balance the aggravating and mitigating offences with respect to the offence and the offender it is clear that a s.39(1)(a) custody sentence is required because any lesser sentence would not be a sentence adhering to those principles. In this particular case with these particular facts a sentence proportionate to the seriousness of the offence and the degree of responsibility of this offender requires a custody sentence in order that he be accountable for the commission of these offences and that there be meaningful consequences promoting rehabilitation and reintegration into society. The issue then becomes whether or not that sentence should be served in the community or in a facility.

[76] There are always ranges for sentence for particular offences with offenders with particular characteristics. There is no magic number. However, in this case a total sentence of six months, four in custody and two supervised, is within that range of reasonable sentence. That being so and one of the fundamental principles of the Act being to have as few custodial sentences as possible, with the shortest periods possible in order to achieve the s.3 principles and s.38 purposes and principles of the Act, I am satisfied that this can be done with a sentence of six months.

[77] I am satisfied that the defence request for a consideration of a s.42(2)(p) deferred custody and supervision order whereby the custodial sentence may be served in the community is the appropriate sentence on the facts of this case for this particular offender. The multiple offences were serious sexual offences upon a very vulnerable and very young victim resulting in significant identified emotional and psychological harm to him and members of his family. This is tempered by a variety of factors. The offender himself was very young at the time of the offences. Almost immediately after the offences came to light family with the help of a variety of community organizations has developed a plan of safety and a plan of rehabilitation that has been ongoing and intense. This offender has effectively been removed from the community in which the offences took place and while in the community for a significant time to come he will be subject to direct court-ordered restrictions on where he lives and how he conducts himself in the community. A breach of the terms of a deferred custody sentence can result in placement in a facility to serve the balance of the sentence.

[78] It is clear from the professional reports filed with the Court and from common sense that the intense program of rehabilitation that has been ongoing must continue without interruption so that the community can be safeguarded against further similar offences committed by this offender by continuing engagement in effective monitoring and rehabilitation programs. In arriving at this conclusion it is significant that the parents of this offender have recognized the severity of his actions, recognized the multiplicity of his needs, and have taken appropriate serious action to address the concerns without taking a fortress mentality attitude to what has happened. Uninterrupted family support and engagement with professionals is clearly necessary for this offender to avoid further offences.

[79] This is not a case where the personal circumstances of the offender militate against a deferred custody and supervision order. The circumstances of this offender are not the circumstances of the offender in R. v. W.(R.E.) supra as described at page 201. In that case the offender systematically breached bail conditions with respect to alcohol and drugs. Parental figures were unable to control his behaviour. The offender's conduct made it clear that he was unlikely to abide by the terms of a deferred custody and supervision order. That offender, while having no prior convictions, had been involved in serious criminal behaviour, despite lack of convictions. That offender was unresponsive to out of custody counselling, failing to become engaged. All of these factors led the Court to conclude that he was an individual for which deferred custody would not promote a sense of responsibility nor an acknowledgment of harm done. That offender was not truthful with the police and had a continuing lifestyle after arrest signifying continued problematic behaviour.

[80] The circumstances for this offender in this court are more akin to the circumstances of the offender in R. v. L.P. [2004] O.J. No. 1484 where Wilkie, J. of our court granted a deferred custody and supervision order to a young person who had imported almost half a million dollars worth of cocaine. Our Court of Appeal reviewing that decision appeared to agree with Wilke, J. that even though there was a s.39(1)(d) gateway to a custodial sentence, a deferred custody and supervision order was appropriate because the objective of general deterrence had to give way to considerations relating to the offender and her own best interests within the meaning of the Youth Criminal Justice Act. An important consideration was the need to prevent the taking of this young offender from her current environment out of custody, where she was functioning adequately if a reasonable alternative was available – deferred custody and supervision. On balance the circumstances of this offender are more in keeping with the circumstances with the offender in R. v. L.P. supra than the circumstances of the offender in R. v. W.(R.E.) supra.

Sentence

[81] There is authority for the proposition that touching for a sexual purpose is in the same category as sexual assault in that by the very nature of these offences there is violence even without breach of trust and without penetration. R. v. Stuckless (1998) 17 CR 5330 at 334 (O.C.A.) in similar circumstances with respect to a five-six year old stepsister and a 16-17 year-old, offending over a period of one year, even considering general deterrence by a court in British Columbia (something not permitted in hindsight), the Crown request for deferred custody and supervision was refused and an intensive support and supervision order was made. R. v. E.J.V., 2006 BCPC 317.

[82] For the 16 offences of sexual assault and the single offence of touching for a sexual purpose there will be a sentence of deferred custody of four months and supervision for two months subject to the statutory conditions set out in s.104.(2):

(a) keep the peace and be of good behaviour;

(b) appear before the youth justice court when required by the court to do so;

(c) report to the provincial director immediately on release, and then be under the supervision of the provincial director or a person designated by the youth justice court;

(d) inform the provincial director immediately on being arrested or questioned by the police;

(e) report to the police, or any named individual, as instructed by the provincial director;

(f) advise the provincial director of the young person's address of residence on release and after release report immediately to the clerk of the youth justice court or the provincial director any change

(i) in that address,

(ii) in the young person's normal occupation, including employment, vocational or educational training and volunteer work,

(iii) in the young person's family or financial situation, and

(iv) that may reasonably be expected to affect the young person's ability to comply with the conditions of the order;

(g) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order; and

(h) comply with any reasonable instructions that the provincial director considers necessary in respect of any condition of the conditional supervision in order to prevent a breach of that condition or to protect society.

[83] In addition there will be the following non-statutory requirements pursuant to s.105.(3) as follows:

(a) take part in whatever programs of assessment, treatment and counselling are deemed appropriate by the provincial director or designate;

(b) reside with a parent, or any other adult, or any combination thereof, that the provincial director or designate considers appropriate, and who is willing to provide for your care and maintenance;

(c) to abide by terms of no contact with respect to any individual, or class of individuals, as determined by the director or designate, without limiting the generality of the foregoing;

(i) not to be a person in the position of authority or trust with respect to any person under the age of ten years;

(ii) not to be in the presence of one or more persons under the age of ten years without the presence of an adult person;

(iii) have no contact directly or indirectly with the named victim as set out in the counts in the information, or any member of his family, including parents, siblings and grandparents;

(d) not to possess or view pornography in any form, unless in a structured therapeutic setting participating in therapy or counselling;

(e) not to attend at any playground, school, school ground, or other establishment where there are children under the age of ten years present unless such place is part of a school at which you attend during normal school or school activity hours or a recreational facility while attending organized recreational activities sanctioned by the director or designate and except for any other reason permitted by the director or designate.

[84] The deferred custody and supervision order will be followed by probation for a period of one year. The terms of probation are as follows:

(a) keep the peace and be of good behaviour;

(b) appear before the youth court when required to do so;

(c) report to a probation officer within two working days after the termination of the deferred custody and supervision order and thereafter as required;

(d) inform the probation officer immediately on being arrested or questioned by the police;

(e) not to own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order;

(e) reside in a place or places approved by the probation officer and not move from any such residence without prior approval;

(f) take part in whatever programs of assessment, treatment and counselling are deemed appropriate by the probation officer;

(g) abide by terms of no contact with respect to any individual, or class of individuals, as determined by the probation officer;

(h) not to be a person in the position of authority or trust with respect to any person under the age of ten years;

(i) not to be in the presence of one or more persons under the age of ten years without the presence of an adult person;

(j) have no contact directly or indirectly with the named victim as set out in the counts in the information, or any member of his family, including parents, siblings and grandparents;

(k) not to possess or view pornography in any form, unless in a structured therapeutic setting participating in therapy or counselling;

(l) not to attend any playground, school, school ground, or other establishment where there are children under the age of ten years present unless such place is part of a school at which you attend during normal school or school activity hours or a recreational facility while attending organized recreational activities sanctioned by the probation officer or designate and except for any other reason permitted by the probation officer.

[85] These matters were proceeded with by indictment. Pursuant to s.51.(1) and (2) there is an order prohibiting this offender from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance during a period of four years. The time period is meaningful for public safety purposes and is also chosen keeping in mind timeframes for a person of this offender's age, significantly different than that of an adult person. The order is required because of the violent nature of the offences. Other considerations are the number of offences, the vulnerability of the kind of victim already chosen or at risk of being chosen in the future coupled with the assessment there is a moderate risk to reoffend.

[86] Pursuant to s.487.051 of the Code there will be an order for a DNA sample with respect to the 16 counts of sexual assault and the single count of invitation to sexual touching, all of which offences are primary designated offences pursuant to s.487.04(a) of the Code. This is mandated by the Code and is appropriate in any event considering the following: the number of sexual offences involved; the surreptitious nature of the commission of the offences; the vulnerability of the current victim and potential future victims, particular with respect to age and ability to communicate for investigative purposes; the moderate risk to reoffend; the difficulty in proving or disproving allegations made of this nature; and the communities need to know that just and reasonable steps are being taken to safeguard against future offensive conduct.

Dated at Cayuga, Ontario

This 16th day of May, 2013

The Honourable Justice L. P. Thibideau