WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

Court Information

Ontario Court of Justice

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

Between:

Her Majesty the Queen

— and —

A.M., a young person

Before: Justice F. Crewe

Reasons for sentence released on: September 21, 2015

Counsel:

• Ms. A. Derwa — counsel for the Crown
• Ms. J. Greenwood — counsel for the accused A.M.

CREWE J.:

Introduction

[1] The issue herein is the determination of a fit sentence for a 40 year old offender for serious offences he committed as a young person, commencing when he was 13, ending when he was 17. In short, this requires the imposition of an appropriate sentence for a mature adult who appears to have left behind the young person who committed the offences herein.

[2] A.M. was charged in mid-2014 with the instant offences. After a three day trial in February of this year, I found him guilty, in reasons released on March 18, of sexual assault, the gravamen of which consisted of repeated non-consensual sexual intercourse against his step-sister, C.N., who was 8 years of age at the onset of the assaults and 13 when she stood up to A.M. and put a stop to his behaviour.

Brief Summary of the Facts

[3] The sexual assaults took place in C.N.'s bedroom late at night. She would lie with her face into the pillow and her legs tightly crossed to prevent A.M. having sex with her. He would climb on top of her and use his legs to force her legs apart. If she resisted, he would pinch, bite, choke her, or scratch her legs with his toenails. Eventually she would give in, and A.M. would engage in forced sexual intercourse with her.

[4] On weekends, the parents often went out to parties and stayed late, leaving the children alone with A.M., the eldest, in charge. On those evenings he would not wait until the lights were out. When the other siblings were asleep, he would visit C.N.'s room and force her to have sexual intercourse.

[5] She does not recall exactly when the sexual assault first happened, but it happened over and over until, at the age of 13, she finally confronted him. They were fighting. She said "if you ever touch me again, I will let everybody know...my mother, your father…what you do to me every single night." He never touched her after that.

POSITIONS OF THE PARTIES

A. Defence Position

[6] Counsel for A.M. submits that the appropriate sentence is one of 6 months deferred custody. In support of this position, she points to A.M.'s exemplary life since the offences herein, as well as his continuing familial obligations, financial and otherwise, to his wife and young son.

[7] Counsel submits that while s. 42(5)(a) of the YCJA does not permit the imposition of a deferred custody sentence for an offence involving serious bodily harm, this disposition would nonetheless be available for such offences having occurred prior to April 1, 2003, per R. v. T.K. [2003] O.J. No. 2877 (OCJ).

[8] A.M. has no prior criminal record, and is well regarded within his community, as evidenced by the letters of support filed on his behalf at the sentence hearing.

[9] Counsel further points out that A.M. lost his job with the Windsor-Essex Children's Aid Society after the instant charges were laid, and his conviction virtually ensures he will no longer be able to work in his chosen field. Had he been prosecuted as a youth, she submits, his life would have unfolded much differently. His record would have been sealed, and the public and professional shaming he has endured as a result of these charges would not have happened. In other words, he has been punished in a very real and permanent manner.

[10] In addition, A.M. and his spouse have in the past year suffered a loss even greater than the loss of his job. Their second child, an infant son tragically passed away shortly before these charges were commenced.

B. Position of the Crown

[11] Crown counsel advocates a sentence of incarceration in the range of 18 months to two years in adult jail, to be followed by a period of probation.

[12] Counsel submits that no sentence other than incarceration would hold A.M. accountable for the repeated rape of his young and vulnerable step-sister. Whether or not R. v. T.K., supra makes available a sentence of deferred custody, crown counsel urges that the aggravating facts of this case render such a sentence inappropriate, and that only a jail sentence strikes the appropriate balance. In addition, she argues, the maximum duration for a deferred custody sentence is 6 months, which is simply insufficient for the offences committed by A.M.

[13] She submits that the aggravating features of this case include:

(i) A.M. was in a position of trust vis his younger sister, particularly on those occasions when the parents were not in the home and had left him in charge;

(ii) The 5 year duration of the abuse;

(iii) The intelligence level of the accused who, nearing the age of 18, clearly knew his actions were wrong, yet did not change his behaviour;

(iv) The nature of the abuse – full intercourse;

(v) Violence was involved to ensure the compliance of his victim, who was significantly younger than him and vulnerable;

(vi) The impact upon the victim's life, who still suffers from the actions of her brother.

The Statutory Framework

[14] The principles engaged in sentencing A.M. are statutorily mandated and set out in the YCJA, the relevant portions of which are set out below.

3. (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and

(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and

(d) special considerations apply in respect of proceedings against young persons and, in particular,

(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,

(ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,

(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and

(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

SENTENCING

Purpose and Principles

38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(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;

(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 most 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; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

(3) In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

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 either extrajudicial sanctions or of findings of guilt or of both 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.

(4) The previous imposition of a particular non-custodial sentence on a young person does not preclude a youth justice court from imposing the same or any other non-custodial sentence for another offence.

(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures.

(6) Before imposing a custodial sentence under section 42 (youth sentences), a youth justice court shall consider a pre-sentence report and any sentencing proposal made by the young person or his or her counsel.

(7) A youth justice court may, with the consent of the prosecutor and the young person or his or her counsel, dispense with a pre-sentence report if the court is satisfied that the report is not necessary.

(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.

(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1), including, if applicable, the reasons why the case is an exceptional case under paragraph (1)(d).

Caselaw

[15] In support of her submission for deferred custody, defence counsel referred the court to three authorities. The first, R. v. C.S. 2013 ONCJ 289, involved the sentencing of a 13 year old bus monitor for repeated acts of oral sex performed upon a 5 year old child on a school bus over a three to seven month period.

[16] The Trial Judge imposed 6 months deferred custody, having regard for the lack of physical harm or overt threats; the violence inherent in sexual offences; the young age of the offender; the age of the victim; the repeated acts; the position of authority of the offender, the emotional impact upon the victim.

[17] The second, R. v. R.A.A. 2003 BCPC 212, involved the sentencing of a 15-year-old male for incest, wherein he had engaged in sexual intercourse with his sister, who was one year younger than him, over a three year period commencing when he was 12. Notwithstanding the fact the accused used force to overcome his sister, as well as the violence inherent in any act of forced sexual intercourse, particularly against a child, (see, eg. R. v. T.K., supra at paras. 5-8; R. v. I.R., infra at para 38-39), the trial judge nevertheless declined to conclude that the offence was one including violence, and therefore found, pursuant to section 39(1) of the YCJA, there was no legal basis upon which he could impose a custodial sentence. He imposed a sentence of probation. The facts of the instant case certainly support a finding of a violent offence within the meaning of that section of the YCJA.

[18] The third authority relied upon by the defence, R. v. T.K., supra, involved an offence of sexual interference consisting of forced sexual intercourse upon a 12-year-old girl by a 16-year-old male. Although the decision does not specifically address the issue, it appears this was a one-time occurrence. Crown counsel in that case sought a sentence of open custody in the range of 4 to 8 months. Defence counsel sought a sentence of deferred custody. Having regard for the seriousness of the offence, the learned trial judge ruled that a non-custodial sentence would be inappropriate, and imposed a sentence of two months open custody.

[19] Crown counsel referred me to several authorities. The first, R. v. J.W.C., [2014], an unreported decision of the Ontario Court of Justice by Justice J.R. Morgan, is remarkably similar in many respects to the instant case. It was, first of all, a historical sexual assault by a young male against his stepsister, who was seven years younger than him. She was seven years of age when the offender, who was 14, began the three-year (plus) period of sexual abuse. It commenced with mutual touching, proceeded to masturbation, oral sex, and ultimately sexual intercourse, which commenced when the victim was 10 years of age. At the time of sentence, the offender was 38 years of age.

[20] While there are, as noted, many similarities between J.W.C. and the instant case, there are also significant differences. Aside from the violence which is inherent in any sexual offence against a child, particularly one involving full sexual intercourse, there did not appear to be any other overt acts of violence used by J.W.C. to gain control of his victim.

[21] Secondly, he was extremely remorseful for his actions. He consulted with a number of medical professionals in an effort to understand his transgressions and rehabilitate himself in a meaningful fashion. The pre-sentence report referred to the offender having been "…filled with remorse and disgust with himself for his actions toward his sister…" which ultimately led to an attempt at suicide. He pled guilty before Justice Morgan.

[22] The lack of remorse evident in the instant case is of course not to be regarded as an aggravating feature on sentence, and cannot be used to elevate what would otherwise be a fit sentence. However, appellate Courts have regarded the remorse displayed by a plea of guilty as a mitigating factor on sentence.

[23] Justice Morgan, in J.W.C., imposed the sentence requested by Crown counsel, one of nine months custody, consisting of six months incarceration followed by three months community supervision.

[24] Crown counsel also referred me to R. v. I.R. [2014] O.J. No. 3521 (Ont. SCJ) per Pomerance, J. This case involved a rather bizarre and disturbing set of facts whereby the offender, aged 17, sexually assaulted the daughter of his common law spouse by defecating on her face.

[25] Justice Pomerance held, at paragraph 21, that accountability is the central concept in the sentencing of young persons. After a thorough review of the relevant provisions of the Youth Criminal Justice Act, as well as the relevant authorities, Justice Pomerance held, at paragraph 48, that the goal of accountability in that case could only be achieved by a term of incarceration, which she set at 12 months, consisting of eight months custody followed by four months community supervision.

[26] In R.v. D.H., [2014] O.J. No. 2475 (OCJ), Justice Cohen imposed a 9 month custody/supervision sentence after trial in circumstances where the accused had repeatedly sexually abused his younger female cousin over a five year period beginning when she was 6 and ending when she was 11, the offender 18. The assaults consisted of French kissing, touching of the victim's vagina, cunnilingus, analingus, fellatio, and a failed attempt at penetration.

CONCLUSION

[27] The Youth Criminal Justice Act, s. 38(2)(a) mandates that "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."

[28] There is in my view little fear of that happening in this case. If A.M. was charged as an adult and convicted of the offences herein, in my view the minimum sentence appropriate would be a penitentiary sentence, and not necessarily one at the lower end of that scale. (see R. v. D.D., [2002] O.J. No. 1061 Ont. C.A. at para. 44)

[29] Section 38(2)(b) further mandates that "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." The most relevant authorities in that regard provided to me are, in my view, R. v. J.W.C., supra; R. v. D.H. supra; and R. v. I.R., supra.

[30] For reasons enumerated in the above authorities, it is my view that a non-custodial disposition would be inappropriate in the present case. A.M. was significantly older than his stepsister, C.N., whom he repeatedly sexually abused over a significant period of time, five years. He was clearly an intelligent young man, as evidenced by his later success at University and in his professional life. In those circumstances it would have been clear to him that his actions were wrong. Yet he continued to sexually abuse his step-sister in a most serious manner.

[31] Moreover, the impact upon his victim has been devastating. She has suffered severe emotional trauma, including, by her account, a severely damaged relationship with her children as a result of her insecurities and ongoing psychological difficulties arising from her abuse. The level of her continuing mental anguish was on full display throughout the two full days of her testimony at this trial. To quote from her victim impact statement, "The actions of (A.M.) have completely impacted and changed my life and I cannot begin to explain the feeling of paralyzing fear and self-loathing that have taken over me in different times in my life."

[32] Section 38(2)(e)(i) requires that the sentence imposed "be the least restrictive that is capable of achieving the purpose set out in subsection (1)". It is my view that the minimum sentence that can hold A.M. accountable for his actions and furthermore address the seriousness of the offence herein, including its impact upon the victim, the nature and duration of the abuse, the position of authority of the offender over his victim, the level of violence involved, is one of 12 months, to be followed by one year probation.

[33] The sentence therefore is for eight months in custody, to be followed by a period of four months of community supervision. Section 89(1) of the YCJA requires me to order that the custodial portion of your sentence be served in an adult facility.

[34] I acknowledge in closing no small level of difficulty in attempting to fashion a fit sentence for offences that occurred when A.M. was a young man evidently far removed from the adult he appears in many respects to have become. I acknowledge as well the impact his incarceration will have upon his family. This sentence will clearly not meet the principle of timeliness contemplated within section 3(1)(b)(iv) (timely intervention) & (v) (promptness and speed…given young persons' perception of time) of the YCJA. However, it is equally clear that the impact of his actions upon his victim have not ceased, even after all these years, and hopefully this sentence will help hold him accountable for his offences against her.

Released: September 21, 2015

Signed: "Justice F. Crewe"