WARNING

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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).

486.4 (2) 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.

486.4 (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4 (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (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.

486.6 (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Citation and Court Information

Citation: R. v. N.E. et al., 2015 ONCJ 767

Ontario Court of Justice

Her Majesty the Queen

v.

N.E.

and

C.S.

and

R.S.

Reasons for Sentence

Before the Honourable Justice K. Baker

Heard: September 11, 2015 at Cayuga, Ontario

Information Contained Herein Cannot Be Published, Broadcast or Transmitted Pursuant to Section 486.4(1) of the Criminal Code of Canada by Order of Justice of the Peace F. Squires, Ontario Court of Justice, Dated June 6, 2014.

Sentencing Decision: January 15, 2016 at Cayuga, Ontario

Appearances

• C. Lapointe – Counsel for the Crown
• E. Kiernan – Counsel for N.E.
• R. Yanch – Counsel for C.S.
• W. Drescher – Counsel for R.S.

Reasons for Sentence

BAKER, J. (Orally):

N.E., C.S. and R.S. are all before the court for sentencing on one count of sexual assault and one count of sexual touching of a young person.

Mr. R.S. and Mr. C.S. plead guilty to the charges and acknowledged certain facts that were alleged by the Crown. Mr. N.E. plead guilty to the charges, but disputed some of the facts that were being alleged by the Crown.

A Gardner Hearing was conducted and I made specific findings of fact with respect to the circumstances of the offence committed by Mr. N.E.

Circumstances of the Offence

N.E., C.S. and R.S. were Crown Wards placed in the foster home of E. and M.O. in D[…], Ontario, over the period from October 10th, 2012 to February 14th, 2014. Also placed in the foster home was the victim, K.C.

The relationship amongst the children was described as being 'sibling-like'. On occasion, the children would be left alone together as their ages ranged from 11 to 17 during the time period.

Over this instant time-frame, the victim was sexually assaulted by the co-accused on various occasions. This happened so frequently that the victim lost track of how often it occurred, although she estimated it happened about 20 times over the 15 months. Sometimes this was perpetrated by all 3 offenders; sometimes it was two acting together. On occasion, it was Mr. C.S. acting on his own.

The offenders would hold the victim down by her arms and legs while the other would force oral sex or intercourse on her. The offenders would then switch and the other would take his turn.

This would occur in many different rooms of the foster home, including the victim's room, the living room, the games room and once outside the home in a ditch.

At first, the victim said it hurt her, but this diminished as she 'got used to it'. She tried struggling to get away from the boys during the assaults, but that usually did not work. The offenders told her to keep her mouth shut and not say anything.

When R.S. was interviewed by the police, he acknowledged having been involved in the assaults on six occasions. He confirmed that the victim was threatened should she tell anyone. He also described the victim vigorously resisting and said that she had bitten him on a couple of occasions in her efforts to escape.

Mr. N.E. asserted that his only involvement was to hold the victim down on one occasion while the other two boys engaged in sexual acts.

After the Gardner Hearing, at which the victim was obliged to testify, I found that the Crown had proven beyond a reasonable doubt that Mr. N.E. sexually assaulted the victim by touching her with his penis, on the mouth, and vagina on three occasions.

Crown's Position and Gateway Test

The Crown was not seeking a serious violent offence designation in the matter. It did take the position that all three offenders met the gateway for custody test under both Section 39(1)(a) and 39(1)(d) of the Youth Criminal Justice Act.

The defence conceded that each of the offenders met the gateway test pursuant to Section 39(1)(a), although there was some dispute as to whether or not each met the test of 'exceptional circumstances' set out at Section 39(1)(d).

On the issue of sentencing, the Crown was seeking a custodial term on the higher end of a duration close to two years. Each of the defendants was seeking a non-custodial order of either probation or a deferred custody order.

Legal Framework

Principles of Youth Sentencing

The principles underlying sentencing under the Youth Criminal Justice Act are set out at Section 3(1) of the Act. The Youth Criminal Justice System is intended to:

(1) Hold young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person;

(2) Promote the rehabilitation and reintegration of the young persons who have committed offences; and

(3) Support the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour, all of which is undertaken in order to promote the long-term protection of the public.

Purpose of Sentencing

The purpose of sentencing as set out at Section 38(1) of the Act 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.

Sentencing Principles

At Subsection (2) of that provision, the sentencing principles provide as follows:

(a) The sentence imposed on a young person must not result in a punishment that is greater than would be appropriate for an adult convicted of a similar offence in similar circumstances;

(b) The sentence must be similar to the sentences imposed in the region on similar young people 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 the offence;

(d) All available sanctions other than custody that are reasonable in the circumstances should be considered;

(e) The sentence must be the least restrictive that is capable of achieving the purpose set out in subsection (1);

(f) A sentence must be one that is most likely to rehabilitate and reintegrate the young person into society; and

(g) It must promote a sense of responsibility in the young person and an acknowledgement of the harm done to the victim and the community.

Factors in Determining Sentence

The factors to be considered in determining a sentence for a youth are set out at Section 38(3). These are as follows:

(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 as a result of the offence;

(e) Any previous findings of guilt; and

(f) Any other aggravating or mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles of the Act.

Custody Gateway Test

Section 39(1) provides that a court may not commit a young person to custody unless certain criteria are met. The provisions relevant in this matter are Section 39(1):

(a) The young person has committed a violent offence; and

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

Subsection 39(3) applies where paragraphs (a) through (c) apply, and it requires that a court not impose a custodial sentence unless the court has considered all other alternatives to custody that are reasonable in the circumstances and has determined that no other reasonable alternative or combination of alternatives would be in accordance with the principles and purposes of sentencing. Notably, this restriction does not apply to cases where a young person is deemed eligible for custody pursuant to Section 39(1)(d).

Analysis of Violence and Custody Gateway

I have no hesitation in finding that each of these three offenders fit the provisions of Section 39(1)(a) and that they have committed a violent offence. As noted by the Supreme Court of Canada in R. v. McGraw, [1991] 3 S.C.R. 72, violence is inherent in the act of rape. For women, rape under any circumstances constitutes the profound interference with their bodily integrity. Violence and the threat of serious bodily harm are hallmarks of rape. While the bruises and physical results of the violent act will often disappear over time, the devastating psychological effects may last a lifetime.

In R. v. Stuckless, [1998] O.J. 3177, the court made the following comments about sexual abuse:

Sexual abuse is an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitive conduct and represents the use of compulsion against someone who is defenseless.

Justice Abella, speaking for the court, went on to say that:

Sexual touching assaults are by their very nature, inherently violent, even where a breach of trust is not present and whether or not penetration occurs.

It seems to me that these comments resonate here where three older boys physically restrained the victim, overcoming her resistance by outnumbering her and then perpetrated significantly intrusive sexual assaults.

Exceptional Circumstances Test

I turn now to consider whether these three offenders would also meet the test for custody under Section 39(1)(d), specifically, is this an exceptional case where the young person has committed an indictable offence with aggravating circumstances such that a non-custodial sentence would be inconsistent with the purpose and principles of sentencing.

The late Justice Rosenberg had occasion to consider the provisions of that section in R. v. W.(R.E.), 205 C.C.C. 3d 183. He concluded as follows:

1. The object and scheme of the Youth Criminal Justice Act and Parliament's intention indicate that the Act was designed to reduce the over reliance on custodial sentences that was the experience under the Young Offenders Act.

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

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

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

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

In R. v. C.S., [2003] O.J. No. 2468, Justice Thibideau discussed the factors that would trigger a finding under Section 39(1)(d), and he said as follows:

Sentencing with respect to young people in sexual assault cases with a spectrum of varying facts varies from a significant period of custody to non-custodial sentences. Factors affecting sentence with respect to an offence that would amount to exceptional circumstances include the use of force or threats, penetration, high degrees of position of authority or trust, disparity in ages, length of time, and frequency of occurrences, and resultant physical or psychological harm.

The victim in this case was sexually assaulted approximately 20 times in total over a 15 month period by these 3 offenders acting in concert and combination. She was forcibly restrained and any resistance was forcibly overcome. All 3 were older than the victim and stood in a position similar to older brothers.

There is no doubt from the victim impact statement that substantial harm was occasioned as a result of their acts. The victim suffered substantial interference with her bodily integrity and her self-esteem suffered significantly as a result. She was teased at school and called vulgar and horrific names by other students who apparently had become aware of what had occurred.

She engaged in self-harm to address her despair. She lost all trust in others. She described herself as broken inside and said she felt worthless.

I find that this is an exceptional case, in which a non-custodial sentence would be inconsistent with the principles and purposes of sentencing.

Accountability and Retribution

The question then becomes, what sentence is most likely to hold these offenders accountable and to be a meaningful consequence.

First, I must consider the meaning of accountability. In R. v. A.O., 2007 ONCA 144, [2007] O.J. No. 800, the Ontario Court of Appeal stated that accountability is the equivalent of the adult sentencing principle of retribution.

As explained in an earlier Supreme Court of Canada case, retribution in a criminal context represents an objective and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender having regard to the intentional risk taking of the offender, the consequential harm caused by his act, and the normative character of his conduct.

Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The need to consider the normative character of the offender's behaviour necessarily requires the court to consider societal values, although the court cannot add onto a youth sentence an element of general deterrence or denunciation.

Any sentence must be long enough to reflect the seriousness of the offence and the offender's role in it; even taking into account the offender's increased dependence and decreased maturity.

As noted by the Ontario Court of Appeal in R. v. C.R., sexual assault is one of the most serious offences in the Criminal Code. Were these young persons adults, there is little doubt that they would be facing penitentiary sentences for these offences.

Any sentence that I impose must be proportionate. The application of that principle must be read in light of Section 3(1)(c) and in particular, the following clauses:

(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.

Individual Offender Assessments

C.S.

The presentence report for this individual is generally positive. Mr. C.S. is now 17 years of age. He has remained in the same foster home for 11 years and he has forged a positive relationship with his foster parents.

He was described as a 'good kid' and there were no current behavioural concerns noted. He apparently does not have issues with anger or frustration, nor are there problems with drug or alcohol use.

He is in Grade 12 and he is on track to graduate with his cohort. He has no prior findings of guilt.

During his assessment interview for the Section 34 evaluation, Mr. C.S. acknowledged his involvement in the offence. He indicated the sexual offences took place in the company of one or other of his co-accused approximately six times and there were another five or six times when he acted on his own in assaulting the victim.

He said he thought at times that it was wrong, because the victim was his foster sister, although it never occurred to him to stop. He does not seem, to the assessor, to have had much of an understanding of the nature of sexual consent.

A number of factors were seen as involved in this offence, including Mr. C.S.'s young age, his ADHD, his exposure to pornography, his poor self-concept and his tendency to sometimes misperceive events and form mistaken impressions about others, as well as his poor judgment.

At page 28 of that assessment, the author concludes:

One must conclude that his and the others desire to have their way overrode their empathy they should have had for a young girl who, for all intents and purposes, was their sister, someone they were supposed to protect.

Assessing risk to reoffend is essentially a clinical judgment as there are no actuarially validated instruments to pinpoint risk. The author's clinical judgment was that Mr. C.S. is currently at moderate risk for offending, although it was her opinion that if he completed an in-depth treatment process, his risk would decrease to low.

R.S.

Mr. R.S. is now 20 years of age. His presentence report is somewhat more guarded. Mr. R.S. was able to graduate high school and he was conditionally accepted into community college contingent upon completing a math class.

Arrangements were made for him to complete the math class through an alternate education program where he could work at his own pace, but he did not do so.

He is not currently working and the indication from the presentence report is that he spends almost all of his time with friends or riding his bike around. He was described by the author of the presentence report as essentially, 'rudderless' at this time.

Mr. R.S. is seen as a follower, someone who could be easily manipulated by others. He has been diagnosed as having mild intellectual disability.

He does remain connected with his former CAS worker who would seem to be a strong support for him. His worker, however, has some concerns about drug and alcohol use by Mr. R.S.

The Section 34 assessment indicates that testing results show a high probability of substance abuse disorder by this young man, which is consistent with his drug use, especially his use of marihuana. He also suffers from ADHD and he does not reliably take medication for this condition.

His former foster mother indicated that Mr. R.S. has always hung out with the wrong crowd and he will do anything to impress others.

Mr. R.S.'s offending behaviour was seen to be a function of his poor social skills and emerging sexual needs in an intellectually challenged individual. Although he has expressed regret for the offence, the author found that Mr. R.S. has difficulty in taking the perspective of the victim.

Overall, Mr. R.S. was considered to be a low to moderate risk to reoffend. This risk can be further attenuated if treatment was to be completed.

N.E.

N.E., at 16, is the youngest of the three offenders. Mr. N.E. was removed from the Orr foster home and placed in his current foster home with Mr. and Mrs. R. in December of 2013.

For the first year, his behaviour was generally good, but over the summer of 2014 his behaviour deteriorated and that seemed to be associated with his use of marihuana.

In July, 2014, he experienced a psychotic break and was hospitalized for two weeks. It was thought by the treating staff that there was a connection between his drug use and the incidence of psychosis.

Mr. N.E. experienced another psychotic break over the summer of 2015 and he was again hospitalized. This occurred after a marihuana binge. Despite a strong connection between his mental health problems and his use of marihuana, Mr. N.E. continues to use that drug and it is described by the presentence report as being reluctant, almost unwilling to accept assistance with the problem. According to the author of the presentence report, this is making the cycle continue to spiral.

Mr. N.E. is nominally a student at M[…] […] Secondary School. Although he should be entering Grade 11, he in fact, has very few high school credits. He seems unmotivated to pursue academic success.

At present, he remains a Crown Ward and the plan is for him to remain with his current foster home. Mr. N.E., for his part, does not wish to remain there. His difficult behaviour in the home is also creating a risk to the placement.

The Section 34 assessment notes that Mr. N.E. has had many suspensions from school due to absences and fights with peers. Mr. N.E. states he does not like school and skips to hang out with his older peers.

Mr. N.E. was assessed as a moderate risk to reoffend over the next 12 months. He was felt to benefit by structure and clear direction.

A psychiatric assessment was also completed for all three offenders and is attached to each Section 34 assessment. Dr. Kondra's assessment for Mr. N.E. noted that he had a, "Very definite case to present, that he was the least responsible of the co-accused."

All three psychiatric assessments provided the recommendation that each offender would:

Not benefit from incarceration as he is not an antisocial youth, feels guilty and remorseful and is himself vulnerable to the influence of other antisocial youth. If he were incarcerated, this would likely lead to a hardened criminal with less chance of rehabilitation.

The author then went on to note that each offender was willing to comply with treatment recommendations. I note that the recommendation in this regard, made for each boy, utilized precisely the same words.

Sentencing Analysis

Aggravating Factors Common to All Three Offenders

My sentencing analysis is as follows. There are several aggravating factors that are common to all three individuals.

1. The victim stood in a relationship that was for all intents and purposes as a younger sister to them. Their foster parents trusted them to be alone with her. They took advantage of that opportunity to sexually violate her when she was but 11 and 12 years of age.

2. The victim was violated in her foster home, a place where she should have felt safe.

3. The victim suffered 20 sexual assaults over a 15 month period. Most were perpetrated by the offenders acting in concert as a gang.

4. The assaults were violent with the victim being forcibly restrained.

5. Each of the offenders were older than the victim. Mr. C.S. was 14 and 15; he was 3 years and 4 months older than the victim. Mr. R.S. was 18 to 19; he was 6 years and 4 months older than the victim. Mr. N.E. was the youngest and he was about 15 years of age; he was 2 years and 9 months older than the victim. This discrepancy in age is particularly pronounced given the very young age of the victim at the time these events took place.

6. There must have been a degree of planning, given that the offenders were usually acting in concert.

7. The offences were highly invasive.

8. The victim suffered continuing harm.

9. The offenders did not use a condom, thus exposing the victim to the risk of disease.

10. The offenders took advantage of the fact that the victim had not been believed in making an earlier allegation about one of them and thus traded on her lack of believability.

Aggravating Factors Specific to Each Offender

There are also aggravating factors specific to each individual offender.

Mr. C.S. was the individual who perpetrated the majority of the assaults, sometimes perpetrating them on his own, and sometimes in concert with the others.

In April, 2014, after the victim had been removed from the foster home in which the assaults took place, he contacted her through social media, to importune her to send him nude photos of herself.

Mr. R.S. was the oldest of the offenders. He was involved in six of the assaults. He is currently rudderless and not attending school or working. This is a criminogenic factor. There are also concerns about his use of substances which in turn runs the risk that it will reduce his inhibition.

Mr. N.E. is not currently applying himself to academic pursuit and also seems without direction and continues to use marihuana despite the fact it was associated with two prior mental health crises.

Mitigating Factors

The mitigating factors for each are as follows.

Mr. C.S. is doing well in his long-standing foster placement. He is progressing at school, he presents no behavioural issues. Among the three, he demonstrates the most empathy for the victim and remorse. He entered a guilty plea and thereby accepted responsibility for his actions.

Mr. R.S. entered a guilty plea and accepted responsibility. It is also significant that he cooperated with police and made an inculpatory statement, and in fact, implicated his co-offenders. This was particularly important given that the victim had not presented as believable before on an earlier disclosure. Mr. R.S. also has intellectual limitations and is therefore vulnerable to group think.

Mr. N.E. did enter a guilty plea but then disputed some of the facts being alleged by the Crown and required the victim to testify at a Gardner Hearing. In my view, this reduces the mitigation that would otherwise accrue from a guilty plea.

Mr. N.E. was involved in only three of the assaults rather than the 6 in the case of Mr. R.S. and apparently in excess of 10 for Mr. C.S.

I also recognize that each of these offenders have experienced very difficult and troubling backgrounds that precipitated their removal from their families of origin.

In Mr. C.S.'s case, this included devastating physical abuse, including sustaining physical harm as a result of assault and having a man in the home trying to drown him in the bathtub. That said, being the victim of abuse does not excuse an individual from degrading and abusing another more vulnerable person.

Custody Decision

Given the serious nature of these offences, the circumstances of each offender and the degree of harm done to the victim, I am satisfied that the only sentence that could adequately address the principles and purposes of youth sentencing is a custodial sentence for each of the individuals before the court.

This is the exceptional case where anything less than a custodial term would fail to reflect social values.

I recognize in coming to this conclusion that Dr. Kondra has indicated in his recommendations for each of these offenders that they would not benefit from incarceration. In this regard, I am concerned first, that the recommendation is phrased in exactly the same form, without particularization specific to each offender. The manner in which it is drafted would almost give rise to the inference that it reflects a philosophical opposition for a sentence of incarceration for a young person.

Aside from that, it is premised on conclusions that are not especially supported by the evidence. Dr. Kondra suggested each feels guilty and remorseful.

Mr. C.S. seems to be the most remorseful on the assessment, but even he seemed at one point to suggest that perhaps the victim liked it. This suggests that his remorse is somewhat diminished.

Neither Mr. N.E. nor Mr. R.S. seemed to have significant empathy for the victim. In fact, Mr. N.E. was bent on making his case that he was the least responsible of the three.

Dr. Kondra's conclusion that all three offenders are willing to comply with treatment recommendations is somewhat difficult to reconcile in relation to Mr. R.S. and Mr. N.E. Both are rudderless in many ways. It is difficult to conclude that they would be significantly more motivated in this one area of attending to treatment recommendations than they are in any other area in their lives.

Although none of the offenders meets the criteria for antisocial personality disorder, the nature of the offences were fairly horrific and indeed antisocial. The statement that each would be vulnerable to the influence of other antisocial youth is always a concern with young people who come into conflict with the Youth Criminal Justice System. If such a consideration was to preclude a custodial sentence, it would do so in virtually every case, which is clearly not the intention of the legislation.

I have to be concerned about the issue of retribution in crafting a sentence to reflect the moral blameworthiness of these accused. The circumstances of these offences are such that each of the offenders bears a high degree of moral blameworthiness.

Sentences Imposed

Sentence for C.S.

Mr. C.S., please come forward. The sentence will be 21 months custody. This will be served 14 months in open custody and 7 months in community supervision thereafter. This will be followed by a term of 3 months' probation.

Terms of Community Supervision for C.S.

1. Report to and be supervised by a person designated by the Provincial Director.

2. Remain within the territorial jurisdiction of the court.

3. Attend school or any other place of learning, training or recreation that is appropriate.

4. Reside at a place that the Provincial Director may specify.

5. Attend for such counselling as may be directed by the Director, including but not limited to offence-specific treatment.

6. Sign such releases as may be necessary for your supervisor to confirm your attendance and participation in counselling.

7. You will not be in the presence of any person under the age of 16 years of age, unless under the direct supervision of a person over 21 years of age as approved by your Supervisor.

8. You will not have contact directly or indirectly by any mechanism, electronic or otherwise, with the named victim, K.C.

The same terms will apply to your period of probation.

Ancillary Orders for C.S.

There will also be ancillary orders under Section 51, that you will not possess any weapons as defined by the Criminal Code for a period of two years.

I am also satisfied that your privacy interests have to give way to the interests of the public in terms of providing a sample for your DNA. There will be an order requiring you to provide such samples as may be necessary for a DNA sample to be effected.

That is my sentence with respect to Mr. C.S.

Sentence for R.S.

Mr. R.S., come forward please. I recognize his cooperation with the police and his involvement in fewer events of assault.

Accordingly, there will be a custodial sentence of 18 months to be served 12 months custody and 6 months community supervision.

Terms of Community Supervision for R.S.

The terms of the community supervision shall include all terms that were provided to Mr. C.S.

However, because Mr. R.S. seems to be something of a follower who associates with a negative peer group, there will be some additional terms.

There will be a curfew between the hours of 10:00 p.m. and 6:00 a.m. with respect to the community supervision.

There will also be a term that he not associate with anyone as directed by his Probation Officer or Community Supervisor or anyone known to him to have a criminal or youth court record, except a direct family member.

There will be a period of 6 months' probation to follow with the same terms, except for the curfew.

With respect to the counselling term for Mr. R.S., that counselling will provide for offence-specific treatment, as well as to attend an assessment for substance abuse and to follow all recommendations of that assessment.

Ancillary Orders for R.S.

There will be the same ancillary orders, under Section 51 that provides that he not have any weapons as defined by the Criminal Code in his possession for a period of 2 years.

I am also satisfied that Mr. R.S.'s privacy interest must give way to the public interest and there will be an order requiring him to provide such samples as may be necessary to take a sample of his DNA. In all cases, the order will remain in effect until executed.

That is my sentence for Mr. R.S.

Sentence for N.E.

Mr. N.E. Although he was younger when the offences took place, he does not get the same benefit of mitigation through the guilty plea given that he required the testimony of the victim, which resulted in the finding of aggravating factors.

He also seems to have more difficulties according his conduct with rules and regulations. He has not demonstrated any willingness to address his substance abuse, which has created mental health crises.

There will be a custodial sentence of 15 months, 10 months in closed custody and 5 in the community.

Terms of Community Supervision for N.E.

The community supervision shall have the same terms as Mr. R.S., which include the curfew and the assessment for substance abuse and following recommendations, given that he seems to have similar difficulties.

There will also be a term that he not associate with anyone as directed by his supervisor or anyone known to him to have a criminal or youth court record, except direct family members.

The custodial sentence will be followed by a period of probation of 9 months with the same terms, but for the curfew.

With respect to the counselling, that counselling will provide for offence-specific counselling as well as mental health counselling, and the assessment for substance abuse.

Ancillary Orders for N.E.

It will be the same ancillary order, which is an order prohibiting him from having any weapon in his possession for a period of 2 years.

There will also be an order requiring him to provide such samples that may be necessary so that his DNA can be tested and stored.

There will be an order that the presentence reports and the Section 34 assessments be made available to all Probation and Community Supervisors.

That is my sentence with respect to Mr. N.E.

Conclusion

Anything else, any clarification required?

MS. LAPOINTE: Not from the Crown's perspective.

MR. KIERNAN: Not for Mr. N.E.

MR. YANCH: No, thank you, Your Honour.

MR. DRESCHLER: No, I'm fine.

THE COURT: Thank you very much counsel, your submissions were most helpful, they were quite comprehensive and thoughtful, thank you.

...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED